Madras High Court
Murugesan vs State Rep. By The Public ... on 21 December, 2021
Crl.R.C.No.535 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.12.2021
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C.No.535 of 2014
Murugesan .. Petitioner
Versus
State rep. By the Public Prosecutor,
Through the Inspector of Police,
Madathukulam Police Station.
Crime No.192 of 2009 ..
Respondent
Prayer : Criminal Revision Case is filed under Section 397 and 401 of Cr.P.C.,
to call for the records and set aside the judgment in Criminal Appeal No.87 of
2013, ordered dated 23.04.2014, on the file of the learned Principal Sessions
Judge, Tirupur, confirming the conviction and sentence awarded in C.C.No.126
of 2009, on the file of the learned Judicial Magistrate No.II, Udumalapet,
ordered dated 04.10.2013.
For Petitioner : Mr.E.P.Senniyangiri
For Respondent : Mr.L.Baskaran
Government Advocate
(Criminal Side)
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Crl.R.C.No.535 of 2014
ORDER
This Criminal Revision Case is filed by the petitioner/accused, aggrieved
by the judgment of the learned Judicial Magistrate No.II, Udumalapet, dated
04.10.2013 in C.C.No.126 of 2009, thereby, convicting the petitioner for the
offences under Sections 279, 338(2 counts) and 304-A of Indian Penal Code
and imposing a sentence of one month Simple Imprisonment for the offence
under Section 279 of I.P.C and fine of Rs.1,000/-, in default, to undergo one
month Simple Imprisonment; three months Simple Imprisonment for the offence
under Section 338 (2 counts) and fine of Rs.1,000/- for each count, in default,
to undergo one month Simple Imprisonment; one year Rigorous Imprisonment
for the offence under Section 304-A and to pay a fine of Rs.1,000/-, in default,
to undergo six months Simple Imprisonment and the judgment of learned
Principal Sessions Judge, Tiruppur, dated 23.04.2014 in Crl.A.No.87 of 2013,
thereby, confirming the conviction and sentence imposed on the accused.
2. The case of the prosecution is that on 13.04.2009, at about 6.30 P.M,
P.W.1, one Manigandan, came to the Madathukulam Police Station and lodged
a complaint before the Sub-Inspector of Police stating that P.W.1 and his
relatives including the victim attended a marriage in S.R.M Kalyana
Mandapam, Vayalur on 13.04.2009 and after the marriage, his relative
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Kannappan's Maruthi Car, bearing No.TN38 AJ 4430 was driven by said
Kannappan's brother-in-law one Nallamuthu, P.W.3. While so, about 3.30
P.M, near Narasingapuram Aishwarya Mill gate, the lorry bearing No.TN R
7095, which was driven in high speed by the driver came and dashed head on.
In the said accident, his mother, who was sitting on the rear side, suffered
grievous injuries. The driver of the Car, Nallamuthu, his sister, Vasugi and
P.W.1's daughter Kalaiselvi got injured. The said information was conveyed to
him by cellphone, when he was in the Kalyana Mandapam and thereafter, he
went to the spot along with P.W.2 and sent all the four injured persons by
Ambulance to Udumalapet Government Hospital. From there, the victims were
referred to Coimbatore Government Hospital for higher treatment. On the way,
they had taken P.W.1's mother to Prabhu Hospital, Pollachi, who examined her
and declared as dead and therefore, without taking her mother to Coimbatore,
Nallamuthu and Vasugi were sent to Coimbatore and the deceased Tirumathal
was brought back to Udumalapet Hospital and thereafter, he came to the Police
Station and lodged a complaint.
3. On such complaint, a case in Crime No.192 of 2009 was registered for
the offences under Sections 279, 338 and 304-A of Indian Penal Code and
P.W.14, namely Palanimuthu, Inspector of Police took up the case for
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investigation and laid a final report on 30.04.2009, proposing the
petitioner/accused as guilty of the above said offence.
4. The case was taken on file by the learned Magistrate as C.C.No.126 of
2009. summons was issued to the accused and upon being furnished copies and
questioning, the petitioner/accused denied the charges. Thereafter, the
prosecution examined the first informant, Manigandan, as P.W.1; the other
relative and the Car owner, who also accompanied P.W.1 to the spot and
thereafter to the Police Station, namely, Kannappan as P.W.2; driver of Maruthi
Car, in which the victim's driver, Nallamuthu, who was also one of the victim,
as P.W.3; the other injured victims, Vasugi and Kalaiselvi as P.Ws.4 and 5; one
Natarajan, Kuppusamy, Kalimuthu, Selvakumar who were the relatives and
who heard about the accident and came as witness for the inquest as P.Ws.6 to
9; one Murugesan, Motor Vehicle Inspector as P.W.10; one
Thirungnanasambandham, witness to the observation mahazar as P.W.11; one
Mariammal, Doctor, who conducted the postmortem and found that the
deceased victim died because of her bones in the chest on either side had broken
and pierced into the lungs and issued the postmortem report as P.W.12; one
Kesavamurthy, Doctor, who attended injured witnesses P.Ws.3 and 4 and found
that they had grievous injuries and issued wound certificates to them, as
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P.W.13; and the investigating officer as P.W.14.
5. The prosecution also marked the complaint, lodged by P.W.1, as
Ex.P1; the inspection report of the Motor Vehicle Inspector of the Car as Ex.P2;
inspection report of the lorry as Ex.P3; observation mahazar as Ex.P4; the
postmortem report as Ex.P5; wound certificate of P.W.4 as Ex.P6; wound
certificate of P.W.3 as Ex.P7; the First Information Report as Ex.P8; the rough
sketch as Ex.P9 and the inquest report as Ex.P10.
6. Upon being questioned about the material evidence on record and the
incriminating circumstances, under Section 313 of Code of Criminal Procedure,
the accused denied the same as false. Thereafter, the accused examined himself
as D.W.1 and one Kalimuthu, a person known to him, who has witnessed the
accident as D.W.2. Thereafter, the Trial Court proceeded to hear the learned
Assistant Public Prosecutor on behalf of the prosecution and the learned
Counsel appearing for the accused and by a judgment, dated 04.10.2013 found
that as per the evidence of P.W.1, he had immediately came to the spot and in
fact, sent both the vehicles standing in the place of accident and lodged the
complaint and therefore, there is no delay in lodging the First Information
Report. The Trial Court further found that the evidence of P.W.1 corroborated
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by P.Ws.2, 3, 4 and 5 makes it clear that the lorry was driven in the right hand
side of the road in a negligent manner. The Trial Court, further relied upon the
eye witnesses to the accident, P.W.3, the driver of the Car and the injured
witnesses, P.W.3, the driver of the Car and the injured witnesses, P.Ws.4 and 5
and found that their evidence is that the lorry was driven in a haphazard
manner. The Trial Court further found that since they all fainted after the
accident, they did not identify the driver of the lorry. Therefore, the prosection
has proved that the accused had driven the lorry in the extreme right hand side
portion of the road and caused accident. The Trial Court further rejected the
contention of the defence that there was delay in lodging the F.I.R, stating that
the same had been explained in the complaint itself. Regarding the version of
defence that the place was dangerous place and that it was digged on either side
for road widening purpose, the Trial Court found that even if it is such a place,
the petitioner/accused should have been careful and taken note of the same and
could have done well to avoid the accident and only because he was negligent,
the accident was happened. Thereafter, the Trial Court, after considering
postmortem report and wound certificate issued to the injured witnesses', held
that the prosecution has proved the charges under Sections 279, 338 (2 counts)
and 304-A of Indian Penal Code and sentenced the petitioner/accused, as
aforementioned.
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7. Aggrieved by the same, the petitioner/accused preferred Crl.A.No.87 of
2013 on the file of the learned Principal Sessions Judge, Tiruppur and by a
judgment dated 23.04.2014, the Appellate Court appraised the evidence and
concluded that when P.Ws.3, 4 and 5 have deposed that the lorry had been
driven in a haphazard manner in the wrong side of the road, when the defence
had taken plea that it was Car, which was driven negligently and caused the
accident. Because P.W.3 was driving the vehicle after atteding the wedding
functions during the preivious night and after having the wedding luch, he was
sleepy. The lower Appellate Court had found that this defence case was not put
to the prosecution witnesses and therefore, disbelieved the defence and came to
the conclusion that there is no reason to interfere with the judgment and
conviction of the Trial Court and confirmed the conviction and sentence
imposed by the Trial Court, aggrieved by which, the present Revision is laid
before this Court.
8. Mr.E.P.Senniyangiri, learned Counsel appearing for the petitioner, by
taking this Court to the evidence on record, argued that firstly, the First
Information Report in this case loses its evidentiary value because on a perusal
of the Accident Report, it can be seen that the information had already reached
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the Police. This fact is abundantly cleared from the fact that when P.W.1 says
that when they visited the accident spot, the vehicles were standing on the road
and then, P.W.2 says that by the time, already the vehicles were taken on the
sideways of the road and it was also admitted by P.W.14, investigating officer
that the vehicles were already kept on the sideways of the road to ensure smooth
flow of the traffic. All these facts would cumulatively indicate that the
complaint of P.W.1 is not the first information and therefore, the F.I.R loses its
evidentiary value. Secondly, from the statement of P.W.1 that both the vehicles
were standing in the middle of the road after the accident and thereafter, even
when the investigating officer is said to have visited the spot only on the next
day morning, the vehicles were put in the sideways of the road. Therefore, there
is no way the investigating officer could have observed the scene of occurrence
and therefore, the observation mahazar as well as the rough sketch also lose
their value. The only evidence which was there before the Trial Court was that
of the self-serving evidence of the driver of the Car and the victim, being his
sister and the other injured victims, who are relatives and interested witnesses,
who have deposed that the lorry was driven in a haphazard manner.
9. The Learned Counsel would further submit that, to the contrary, the
accused had let in evidence by examining himself as D.W.1 and one more
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Crl.R.C.No.535 of 2014
independent witness as D.W.2. When the Trial Court as well as the lower
Appellate Court has brushed aside their evidence, the Trial Court did not give
any finding whatsoever at all and simply found that the evidence of P.Ws.3, 4
and 5 as believable. On the contrary the lower Appellate Court gave a factual
erroneous reasoning that the version of the defence through D.Ws.1 and 2 were
not put to the prosecution witnesses in the cross-examination and rejected the
defence version. On a perusal of the cross-examination of P.Ws.3, 4 and 5, it
may be seen that the defence version was put to them in the cross-examination.
As a matter of fact, P.W.4 has partly admitted the same also.
10. The further contention of the learned Counsel is that therefore, when
such an accident happened in a busy main road between Udumalapet and
Pollachi, there could have been independent witnesses and there would be other
vehicles immediately passing by, since the road is busy main road. In the
absence of any investigation whatsoever immediately after the accident, the
three hours delay in lodging the complaint and the investigating officer taking
up the investigation only in the next day morning, seriously prejudices the case
of the accused, as there is a far chance of the natural witnesses, who witnessed
the accident, were not examined and it is his further submission that D.W.2 is
one such witness and the Trial Court and the lower Appellate Court disbelieved
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D.W.2 as artificial. But, however, while rejecting D.W.2 artificial, the Trial
Court as well as the lower Appellate Court failed to see that it is the victims who
were outsiders, while the accused belongs to the place of accident and therefore,
it is only natural that D.W.2, who happened to witness the accident is also
known to him. Therefore, the rejection of the defence version by the Trial Court
and the lower Appellate Court is perverse and therefore, he called upon this
Court to interfere with the findings in the exercise of power in the revisional
jurisdiction.
11. Per contra, the learned Government Advocate (Criminal Side),
representing prosecution submitted that this is a case whether there was
collusion from opposite direction and therefore, P.W.3, who was the driver of
the Car was a clear and categorical witness to the accident. He had deposed
that it is only the petitioner/accused who drove the vehicle in a haphazard
manner. He would submit that the petitioner/accused failed lodge any
complaint stating that it was the Car, which was driven in a haphazard manner
. If the car driver had slept off, the petitioner/accused would have definitely
lodged a complaint with the jurisdictional Police. This apart, he would submit
that the other injured witnesses i.e., P.Ws.4 and 5, who had also seen the
accident had deposed about the negligence of the petitioner/accused in their
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evidence and therefore, their evidence also corroborates the accident. The
observation mahazar, which clearly demonstrates that the place of impact is on
the extreme right hand side and lorry was driven in the right end of the road,
would clearly demonstrate the negligent manner, in which the lorry was driven
and therefore, the prosecution had established the fact that it is the
petitioner/accused, who had driven the vehicle in a rash and negligent manner
and therefore, no exception can be taken to the findings of the Trial Court as
well as the lower Appellate Court.
12. I have considered the rival submissions made on either side. I have
perused the material evidence on record. I find that this is a case to interfere
with the findings of the Trial Court as well as the lower Appellate Court in
exercise of the revisional jurisdiction for the following reasons :-
(i) When specific arguments was advanced on behalf of the petitioner/accused
regarding the first information and the evidentiary value of the F.I.R, both the
Courts below, even though after taking note of the Accident Register and the
submissions of one Sabapathy that it was written as per the memo over the
Accident Register, have failed to render a finding whether or not the F.I.R is the
first or the earliest information which is given to the police and on the basis of
the available evidence including that of the investigating officer, it would be
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clear that there was prior information and even the vehicles were removed even
before the F.I.R was lodged at 6.30 P.M and therefore, the First Information
Report loses its evidentiary value;
(ii) The Trial Court as well as the lower Appellate Court also did not advert to
the arguments advanced on behalf of the defence that the observation mahazar
and drawing of a point of impact in the rough sketch as if it was on the extreme
right side of the road is totally unbelievable because as per the evidence of
P.W.14, investigating officer, he proceeded to the spot on the next day morning
at about 6.00 A.M and drew the rough sketch. There is no any tyre mark or
other indications, which were mentioned in the observation mahazar also so as
to fix the spot of the accident and thereby, when P.W.2 himself has stated that
he has proceeded to the spot immediately after the accidennt and found that
both the vehicles were standing in the middle of the road, considering the
manner in which the accident happened, the version of the prosecution that the
accident happened only at the extreme righthand side of the road, is doubtful;
(iii) The findings of the Appellate Court regarding the defence version was not
put to the prosecution witnesses is factually incorrect and therefore, borders on
perversity because on a perusal of the cross-examination of P.W.3, the answers
are as follows :-
“////ehd; Ke;ija ehs; fy;ahz
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ntiy ghh;j;njd;/ ,ut[ neuk;
Jh';fhky; bjhlu;e;J fhiy tiu
ntiybra;njd; vd;why; rupay;y/
kjpar;rhg;ghL Koj;Jtpl;Lj;jhd;
ehd; tz;oia Xl;or;brd;nwd;/
,ut[ neuKk; Jh';fhky; fhiy
kjpaKk; fy;ahz rhg;ghL
rhg;gpl;Ltpl;L me;j kaf;fj;jpy;
ehd; jhd; yhhpapy; brd;W
nkhjpndd; vd;why; rupay;y////“
Similarly, P.W.4 was cross-examined in the following lines :-
“////rk;gtj;jpw;F Ke;ijaehs;
jpUkz tpHh ele;jJ vd;why;
rhpjhd; mjdhy; tpoa tpoa
tpnrr';fspy; fye;J bfhz;nlhk;
vd;why; eh';fy; midtUk;
Jh';fptpl;nlhk;////“
“/// ,e;j rk;gtk; Koe;jt[lndna
tz;oapy; gdpj;j egu;fs; tz;o
Xl;o te;jth; ka';fptpl;lhu;fs;/
mjdhy; tz;oia Xl;o te;jth;
cldoahfj;bjhpahJ vd;W
brhd;dhy; ,y;iy bjhpa[k;/ rk;gtk;
ele;j Koe;J xU 1-2
kzpneuj;jpw;F mnj ,lj;jpy;
eh';fs; ,Ue;njhk; me;j rkaj;jpy;
jfty; fpilajJ nghyprhu; m';F
te;J nghf;Ftuj;ij rhpbra;jhu;fs;
vd;W brhd;dhy; vdf;F
bjhpatpy;iy ///“
Further, P.W.5, who was the only witness, who was conscious and who
had only simple injuries, had deposed as follows :-
“/// m/rh/3 ey;yKj;J ey;y
ntfj;jpy; tz;oia Xl;or;brd;whh;
vd;why; ehh;kyhf tz;oia
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Xl;rr;brd;whu;/ ehd; Kd;ghf
vjphpy; te;j yhhpia
ftdpf;ftpy;iy/ tpgj;J Vw;gl;l
gpwFjhd; vdf;F bjhpa[k;/
ahUila m$hf;fpiuapdhy; ,e;j
tpgj;J ele;jJ vd;W Fwpg;gpl;L
vd;dhy; brhy;y ,ayhJ/ tpgj;J
ele;j rkaj;jpy; tz;oia Xl;o
te;j m/rh/3. m/rh/4 thRfp
MfpnahhplKk; ifngrp ,Ue;jJ/
ehd; mjd; K:ykhf jfty;
brhd;ndd; vd;why; ,y;iy/ ////
/// m';F To te;jth;fSk;
M$h; vjphpa[k;jhd; v';fis
Mk;g[yd;rpy; itj;J mDg;gpdhh;fs;
vd;W brhd;dhy; vjphp ,Ue;jij
ghh;ff; tpy;iy m';FToa
,Ue;jth;fs; jhd; cjtp
bra;jhh;fs;///“ (emphasis supplied)
Therefore, she herself has categorically admitted that she did not notice
the lorry, which was coming in the opposite direction and she realised the
accident only after it occurred and then, she specifically admitted that she again
cannot say that whose negligence the accident happened.
(iv) It is P.W.5, who informed P.W.1 over phone and P.W.5 also, upon being
cross-examined, states that her father came to the spot within 10 to 15 minutes
and Ambulance also arrived at the spot by the time. However, she did not
notice whether the Ambulance had come there or not. She was also specifically
cross-examined whether the accused also helped them in getting into the
Ambulance, for which, she stated that she did not notice the same.
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13. Therefore, the findings of the Courts below would amount to total
non-consideration of the defence and therefore, in my considered view amount
to serious error leading to miscarriage of justice to the petitioner/accused and
therefore, this is a case which calls for interference in exercise of the revisional
jurisdiction.
14. In view of the above findings, it can be seen that the prosecution did
not examine any independent witnesses, the manner of investigation itself is
doubtful and therefore, there is every chance that the proper and correct witness
to the accident were not examined and further, considering the evidence on
record as to the place of the accident, which suggests that it was a dangerous
place and that a board itself had already been kept, it would have been possible
that an accident would have occurred for no default of both the drivers also.
15. Considering the nature of the terrain and the place of the occurrence,
taking into account all these factors, I find that the accused in this case is
entitled to the benefit of doubt and the action of the Trial Court as well as the
lower Appellate Court in not extending the same to the accused is erroneous in
law and therefore, this Revision stands allowed.
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16. The judgment of the learned Principal Sessions Judge, Tirupur in
Crl.A.No.87 of 2013, dated 23.04.2014, and the judgment of the learned
Judicial Magistrate No.II, Udumalapet, in C.C.No.126 of 2009, dated
04.10.2013 are set aside. The accused is acquitted of all the charges. The fine
amount, if any, paid by the petitioner/accused is ordered to be refunded to him.
21.12.2021
Index : yes
Speaking order
grs
To
1.The Principal Sessions Judge, Tirupur.
2.The Judicial Magistrate No.II, Udumalapet.
3.The Public Prosecutor,
High Court of Madras.
4.The Inspector of Police,
Madathukulam Police Station.
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Crl.R.C.No.535 of 2014
D.BHARATHA CHAKRAVARTHY, J.
grs
Crl.R.C.No.535 of 2014
21.12.2021
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