Madras High Court
Viml Kannan vs State By on 22 December, 2021
Crl.R.C.No.222 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.12.2021
CORAM
THE HONOURABLE Ms.JUSTICE R.N.MANJULA
Crl.R.C.No.222 of 2017
Viml Kannan
S/o.Selvaraj ... Petitioner
Vs
State by
Inspector of Police,
Koradacherry Police Station,
Tiruvarur District.
(Crime No.146 of 2007) ... Respondent
PRAYER: This Criminal Revision Case is filed under Section 397 r/w. 401
of Cr.P.C., challenging the Judgment of the learned District and Sessions
Judge, Tiruvarur, Tiruvarur District made in Crl.A.No.8 of 2016 dated
02.01.2017 confirming the judgment of the learned Judicial Magistrate,
Tiruvarur, Tiruvarur District, dated 22.06.2016 made in C.C.No.576 of
2008.
1/14
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Crl.R.C.No.222 of 2017
For Petitioner : Mr.S.Arivazhagan
For Respondent : Mr.A.Gopinath
Government Advocate (Crl.Side)
ORDER
This Criminal Revision Case has been preferred by the petitioner
challenging the judgment of the learned District and Sessions Judge,
Tiruvarur dated 02.01.2017 made in Crl.A.No.8 of 2016, confirming the
order of the learned Judicial Magistrate, Tiruvarur, dated 22.06.2016 made
in C.C.No.576 of 2008.
2. As per the case of the prosecution, on 17.07.2007, at about
3.30 p.m., when the accused was driving his mini door auto bearing
Reg.No.TN 50 E 0775 in a rash and negligent manner, he caused the
accident and due to which the auto capsized. In view of the same, 11
persons travelled in the load carriage got injured and one person died on the
spot. On the complaint given by PW2, Vijaya, a case was registered in
Crime No.146 of 2007 of Koradacherry Police Station,Tiruvarur District,
for the offences under Sections 279, 337 and 304-A IPC. The case was
registered by PW1, Sub-Inspector of Police. Immediately after registering
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the FIR, he took up the case for investigation went to the place of
occurrence prepared the Observation Mahazar and Rough Sketch in the
presence of witnesses and also recorded their statement. On 18.07.2007, he
arrested the accused and released him on bail bond. He also sent the vehicle
to the Motor Vehicle Inspector for inspection.
3. Since one of the persons travelled in the load auto carriage died, he
handed over the further investigation to the concerned Inspector of Police.
The Inspector of Police conducted inquest on the body of the deceased and
sent it for post-mortem and he also enquired the Motor Vehicle Inspector
who inspected the vehicle involved in the accident and also the Doctor who
gave treatment to the injured persons and conducted post-mortem and got
the wound and post-mortem certificate. He also got certificate from the
Motor Vehicle Inspector after his inspection. After completing the
investigation, he filed charge sheet against the accused under Sections 279,
337 (10 counts) and 304-A IPC.
4. After the case was taken on file and after complying with all the
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Crl.R.C.No.222 of 2017
legal mandates, the accused was questioned. The accused denied the
involvement in the offence and he pleaded innocence and claimed to be
tried. Hence, the trial was conducted.
5. During the course of trial, on the side of the prosecution, 10
witnesses were examined as PW1 to PW10 and 7 documents were marked
as Exhibits P1 to P7. On the side of the defence, no witness was examined
and no documents were marked.
6. After conclusion of the trial and considering the materials placed
before the trial Court, the trial Court found the accused guilty of the
offences under Sections 279, 337 (10 counts) and 304-A IPC and accused is
convicted and sentenced as under:
Sl.No. Offence under Sections Punishment imposed
on the accused
1 279 IPC To pay a fine of
Rs.1000/-, in default, to
undergo a simple
imprisonment for a
period of one month.
2 337 IPC (10 counts) To pay a fine of
Rs.500/-, for each
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Sl.No. Offence under Sections Punishment imposed
on the accused
count, in default, to
undergo a simple
imprisonment for a
period of one month.
3 304-A IPC To undergo Simple
Imprisonment for a
period of two years.
7. The First Appeal preferred by the appellant in Crl.A.No.8 of 2016
was also dismissed, confirming the judgment of the learned Judicial
Magistrate. Aggrieved by the said dismissal order passed by the learned
District and Sessions Judge, Tiruvarur, the accused has preferred this
revision before this Court.
8. Heard the learned counsel for the petitioner and the learned
Government Advocate (Crl.Side) for the respondent and perused the
materials available on record.
9. The learned counsel for the petitioner submitted that the
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Crl.R.C.No.222 of 2017
complainant, who has given the complaint, was also one of the persons who
travelled in the auto and was sitting on the load carriage of the auto; hence,
it would not have been possible for any of the witnesses who travelled in the
auto, to witness the occurrence; in the absence of the evidence of eye-
witnesses, the prosecution cannot establish that the driver of the vehicle had
driven the vehicle in rash and negligent manner. The persons who travelled
in the auto without the knowledge of the accused after attending a
condolence, sat on the auto, had drunk and they were under the influence of
alcohol and because of that they have caused lot of disturbances and
vibrations on the vehicle and that had caused the accident. The Courts
below have not considered the above aspect and proceeded to find the
accused guilty on the wrong presumption that the accused had driven the
vehicle in a rash and negligent manner and caused the accident.
10. The learned Government Advocate (Crl.Side) appearing for the
respondent submitted that, for the very act of the accused allowing the
persons to travel in the load auto itself, is an act of negligence. The auto was
not handled by the accused in a proper manner and that only caused the
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Crl.R.C.No.222 of 2017
accident, due to which wherein the auto got capsized. The Courts below
have rightly appreciated the evidence on record and proceeded to find the
accused guilty.
11. Point for consideration:
Whether the conviction and sentence of the accused
for the offences Sections 279, 337 IPC (10 counts) and 304-
A IPC by the learned Sessions Judge basing on the
materials available on record, is fair and proper?
12. The fact that the vehicle involved in the accident, was driven by
the petitioner/accused, is not denied. On the date of accident, 11 persons
travelled in the load auto and they were going to attend a condolence. The
auto returned only after they attended the condolence. So, the driver of the
load auto, cannot say that he did not have the knowledge of some 11
persons travelling in the load auto carriage.
13. Had there been one or two persons travelling in the load auto, it is
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possible that they might have sneaked into the vehicle without the
knowledge of the driver. But, in the case on hand, 11 persons had travelled
in the auto carrier and that would show that they have been travelling only
with the consent of the driver of the load auto. It is rightly pointed out by
the learned Government Advocate that the very act of allowing passengers
to travel in a load auto itself, is an act of negligence. Further, the Auto got
capsized without hitting any other vehicle / persons. Since the persons who
have been travelling in the auto were in the backside, they could not have
seen what caused the auto to get capsized. In this context, the learned
counsel for the petitioner drew the attention of this Court to a decision of
this Court passed in Crl.R.C.No.149 of 2007 dated 10.10.2012, in the case
of Balachandran v. State, represented by Inspector of Police,M-1,
Periyanaikenpalayam Police Station, wherein, it is held that when there is
impossibility for a person to witness the occurrences, the ''benefit of doubt''
should be given to the accused. In the case on hand, the learned Government
Advocate vehemently argued that the manner in which the accident had
taken place, would speak for itself and hence, the negligence of the driver
cannot be condoned. The learned Government Advocate cited the
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judgment of the Hon'ble Supreme Court in the case of Thakur Singh v.
State of Punjab reported in (2003) 9 SCC 208, wherein, it is held as under:
''4.It is admitted that the petitioner himself was
driving the vehicle at the relevant time. It is also admitted
that bus was driven over a bridge and then it fell into a
canal. In such a situation the doctrine of res ipsa loquitur
comes into play and the burden shifts on to the man who was
in control of the automobile to establish that the accident
did not happen on account of any negligence on his part. He
did not succeed in showing that the accident happened due
to causes other than negligence on his part.''
14. The said proposition laid down by the Hon'ble Supreme Court,
was later followed by this Court also, in a decision reported in 2015 SCC
OnLine Mad 1012 in the case of Ganapathy v. The Inspector of Police,
Tindivanam Police Station, Tindivanam.
15. The learned counsel for the petitioner further submitted that the
evidence of PW1 is contrary to his complaint, wherein he has stated that
they were standing near the bus stop and at that time only, the accident had
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taken place. Though PW2 and other witnesses had concealed that they were
travelling in the auto, the fact remains that they travelled only on the
backside of the load auto. PW2 has given a complaint by stating that the
auto hit against the vehicle in which the witnesses were travelling.
However, PW1 has stated in his cross examination that they travelled in the
load auto in order to attend a condolence. So, it is proved by the prosecution
that the injured persons and the deceased were travelling in the load auto in
an unauthorised manner.
16. The learned Government Advocate stated that, when the evidence
itself speaks for itself, it is not necessary to took for other evidence. The
accused did not bring out any other possible reasons for the accident than
his own negligence of allowing passengers to travel and handling the
vehicle in a slipshod manner.
17. The Courts below have rightly appreciated the evidence on record
and found the accused guilty for the offence under Sections 279, 337 (10
counts) and 304-A IPC. However, during the course of arguments, the
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Crl.R.C.No.222 of 2017
learned counsel for the petitioner submitted that, considering the age of the
accused, some indulgence should be shown in the matter of punishment. For
the offence under Section 304-A IPC, the accused had been convicted and
sentenced to undergo for 2 years Simple Imprisonment. The accused is not a
habitually negligent driver. The Motor Vehicle Inspector had ruled out the
possibility of any mechanical failure as the cause for the accident. The
negligence on the part of the passengers, should also be considered while
imposing punishment for the accused. Considering the age and other
attending circumstances of the case, I feel that the punishment imposed
under Section 304-A IPC alone can be modified.
18. In the result, this Criminal Revision Case is partly allowed and the
point framed by this Court is answered accordingly and the judgment of the
First Appellate Court is modified and the accused is convicted and
sentenced to undergo 6 months Simple Imprisonment for the offence under
Section 304-A IPC. The conviction and sentence imposed on the accused in
respect of the other offences would remain unaltered.
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19. The sentences of imprisonment already undergone by the accused
shall be set off under Section 428 Cr.P.C. If the petitioner/accused is on
bail, the Trial Court is directed to issue Non-Bailable Warrant to secure the
accused and to send him to prison for undergoing the remaining period of
the punishment.
22.12.2021
Index:Yes / No
Speaking Order : Yes / No
ssn
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Crl.R.C.No.222 of 2017
To
1. The District and Sessions Judge,
Tiruvarur, Tiruvarur District.
2. The Judicial Magistrate,
Tiruvarur, Tiruvarur District.
3. Inspector of Police,
Koradacherry Police Station,
Tiruvarur District.
4. The Public Prosecutor,
High Court of Madras,
Chennai.
R.N.MANJULA, J.,
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Crl.R.C.No.222 of 2017
ssn
Crl.R.C.No.222 of 2017
22.12.2021
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