Madras High Court
Pushparaj vs State Rep.By on 23 December, 2021
Crl.R.C.No.1397 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 23.12.2021
CORAM :
THE HONOURABLE Ms. JUSTICE R.N.MANJULA
Crl.R.C.No.1397 of 2016
Pushparaj .. Petitioner
Vs.
State rep.by
The Inspector of Police,
Mayiladuthurai Police Station,
Nagapattinam District.
(Crime No.927/2007) .. Respondent
PRAYER : Criminal Revision Case has been filed under sections 397
read with 401 of Criminal Procedure Code to call for the records
pertaining to the order of conviction and sentence dated 26.03.2015 in
C.A.No.57 of 2012, on the file of the Principal Sessions Court,
Nagapattinam, confirming the order of conviction and sentence dated
28.09.2012 in C.C.No.213 of 2008, on the file of the Judicial Magistrate
Court No.I, Mayiladuthurai, Nagapattinam District and set aside the
same.
For Petitioner : Mr.V.Venkatesan (Legal aid)
For Respondent : Mr.A.Gopinath
Government Advocate (Crl.side)
1/10
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Crl.R.C.No.1397 of 2016
ORDER
This Criminal Revision Case has been preferred challenging
the judgment of the learned District and Sessions Judge, Nagercoil, dated
26.03.2015 made in C.A.No.57 of 2012, confirming the judgment of the
learned Judicial Magistrate No.I, Myladuthurai dated 28.03.2012 made in
C.C.No.239 of 2008.
2. This case has arisen out of a road accident, which was
taken place on 03.08.2007 at 2.30 p.m.. The case of the prosecution is
that on 03.08.2007 at 2.30 p.m., when the deceased Boopathi along with
one Arumugam/PW.2 were travelling in a two wheeler bearing
registration No.TN 51 T 6356, from Sirkazhi Main Road to
Myladuthurai, near Savadi Kanniamman Koil, a milk tanker lorry bearing
registration No.KA 01/AT 2248, came in a rash and negligent manner
from the opposite side and dashed against the two wheeler. Because of
which, the Boopathi, who was riding the motorcycle, sustained grievous
head injury and later succumbed to his injuries. PW.2/Arumugam, who
travelled as a pillion rider also sustained grievous injury over his head.
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Crl.R.C.No.1397 of 2016
3. On the complaint given by the brother of the deceased
PW.1- Jothy, a case was registered in Crime No.927 of 2007 by the
Myladuthurai Police Station for the offence under Sections 279, 338 and
304(A) IPC. On 03.08.2007, P.W.13 / Sub Inspector of Police took up
the matter for investigation and went to the scene of occurrence and
prepared a rough sketch and the observation mahazar. He also conducted
inquest on the body of the deceased and prepared an inquest report and
sent the body of the deceased for post-mortem on the same day. In the
process of investigation, he examined the doctor / P.W.9 who treated the
deceased and the injured. He collected the postmortem certificate of the
deceased and wound certificate of PW.2. Thereafter, PW.14/ Inspector of
Police continued his examination. P.W.10/ the Motor Vehicle Inspector
had inspected the motor vehicle and got his report. His report would state
that there was no mechanical defects in the vehicle involved in the
accident. After concluding the investigation, PW.14 / the Inspector of
Police filed a charge sheet against the accused u/s.279, 338 and 304(A)
IPC.
4. Thereafter, the case was made over to the learned Judicial
Magistrate No.I, Mayiladuthurai. He took cognizance of the case in
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Crl.R.C.No.1397 of 2016
C.C.No.213 of 2008. The substance of the case was explained to the
petitioner/accused and the accused denied the offence and claimed to be
tried.
5. During the trial, in order to prove the guilt of the accused,
the prosecution examined witnesses PW.1 to PW.14 on its side and
marked documents Ex.P1 to Ex.P9. On the side of the defence, no oral or
documentary evidence were adduced.
6. After the conclusion of the trial and on consideration of
the materials available on record, the learned trial Judge found the
accused guilty and convicted and sentenced vide impugned judgment
dated 28.09.2012, made in C.C.No.213 of 2008, as follows:-
Rank of Charges findings Punishment
the
accused
Sole U/s.279 IPC Found guilty Convicted and imposed with a
accused fine of Rs.700/-; in default to
undergo three weeks Simple
Imprisonment.
U/s.338 IPC Found guilty Convicted and imposed with a
fine of Rs.800/-; in default to
undergo three weeks Simple
Imprisonment.
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Crl.R.C.No.1397 of 2016
Rank of Charges findings Punishment
the
accused
U/s.304(A) Found guilty To undergo one year Simple
IPC Imprisonment and to pay a fine
of Rs.1,000/-; in default to
undergo one month Simple
Imprisonment.
7. Against the said conviction and sentence, the petitioner /
accused had preferred an appeal in C.A.No.57 of 2012 on the file of the
learned District and Sessions Judge, Nagapattinam, which was dismissed
by confirming the judgment of the trial Court. Aggrieved over the decision
of the Appellate Court, this Criminal Revision Case has been filed by the
petitioner / accused.
8. Heard the learned counsel for the petitioner/accused and
the learned Government Advocate (Crl.Side) for the State.
9. The learned counsel for the petitioner submitted that the
accident has not occurred due to rash and negligent driving of the
accused; rash and negligence on the part of the accused was not proved
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Crl.R.C.No.1397 of 2016
by the prosecution. The trial Court without appreciating the evidence in
proper perspective, convicted the accused and the same was wrongly
confirmed by the Appellate Court.
10. The learned Government Advocate (Crl.side) for the State
submitted that PW.2 is not only the complainant, but also an eye witness;
he has stated in his evidence about the accident in a cogent and
convincing manner; the Courts below have also appreciated the evidence
in a proper perspective.
11. Points for consideration:
“Whether judgment and sentence of the lower Appellate
Court confirming the judgment of the learned trial Judge is fair, proper
or legal?”
12. The fact that the accused was driving the milk tanker
lorry at the time of accident was not denied by him. The deceased and his
friend [PW.2] were coming in a two wheeler on the opposite direction.
The occurrence had taken place near Savadi Kanniamman Koil. The
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Crl.R.C.No.1397 of 2016
tanker lorry was coming from south to north. It is seen from the rough
sketch viz. Ex.P7 that the accident had taken place near the turning and
on the middle part of the road. PW.2, who is the injured witness, has
stated in his evidence that the accused/lorry driver was coming in a rash
and negligent manner in the turning and because of that the accident had
occurred. The learned trial Judge has also observed that the accused did
not exercise proper precaution while coming near the turning of the road
and that would show his negligence. As stated by the learned Government
Advocate, PW.2 is not only an eye witness but also the pillion rider in the
two wheeler which involved in the accident. His evidence would go to
show that the accident had taken place due to negligent driving of the
accused.
13. PW.3, who has also witnessed the accident, has stated
that after the accident, the accused had ran away from the spot. The
conduct of the accused is relevant to present that he had caused the
accident due to his negligence and only because of that he ran away from
the place of occurrence. The Motor Vehicle Inspector inspected the vehicle
and certified that there is no mechanical failure in the vehicle and the
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Crl.R.C.No.1397 of 2016
accident was not caused due to any mechanical reasons. The learned trial
Judge had appreciated the facts and evidence on record in correct
perspective and convicted the accused.
14. The doctor had certified that the deceased had died due
to this injuries sustained in the accident. The eye witnesses have also
stated about the rash and negligent driving of the accused. When a
vehicle come near the turnings on the Highways, it should take maximum
precaution to avoid accident by skidding or hitting. The driver of the
heavy vehicle like lorries need to be still more careful. The materials on
record would show that the accused had failed to take due caution while
coming near the turning and caused the accident.
15. The learned counsel for the petitioner requested that
some indulgence should be shown in the matter of punishment.
Considering the age and other circumstances of the accused.
16. In the result, this Criminal Revision Case is partly
allowed and the judgment of the learned District and Sessions Judge,
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Crl.R.C.No.1397 of 2016
Nagapattinam, dated 26.03.2015 passed in C.A.No.57 of 2012 is
modified to the extent that the accused is found guilty for the offence
under Section 304 (A) IPC and he stands convicted and sentenced to
undergo 3 months Simple Imprisonment and pay a fine of Rs.1,000/-, in
default to undergo Simple Imprisonment for one month. The punishment
imposed for the offences under Sections 279 and 338 IPC stand
unaltered. If the fine amount has already been paid by the accused it need
not be paid again. The period of incarceration undergone by the accused
can be set off under Section 428 Cr.P.C. The learned trial Judge is
directed to issue non-bailable warrant for securing the accused and send
him to prison to undergo the remaining period of sentence.
23.12.2021
Index : Yes/No
Internet : Yes/No
rpl
To
1. The Principal Sessions Court, Nagapattinam.
2.The Judicial Magistrate Court No.I, Mayiladuthurai,
Nagapattinam District.
3.The Inspector of Police,
Mayiladuthurai Police Station,
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Crl.R.C.No.1397 of 2016
Nagapattinam District.
4.The Public Prosecutor,
High Court, Madras.
R.N. MANJULA, J.
rpl
Crl.R.C.No.1397 of 2016
23.12.2021
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