Chandran vs State Rep By
2021 Latest Caselaw 2818 Mad

                                                                                    Crl.RC.No.292 of 2014

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 08.02.2021

                                                         CORAM

                         THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA

                                                  Crl.RC.No.292 of 2014

                     Chandran
                     S/o.Palani                                                          ... Petitioner
                                                              Vs.
                     State Rep by
                     The Inspector of Police,
                     Annamalai Police Station
                     (Cr.No.499 of 2005)                                           ... Respondent


                     Prayer: Criminal revision is filed under Section 397 and 401 of Cr.PC to
                     set aside the order passed in C.A.No.73 of 2013 dated 20.01.2014 on the
                     file of the III Additional District and Sessions Judge, Coimbatore
                     confirming the judgment and order of conviction of the trial Court passed
                     in CC.No.663 of 2005 dated 16.05.2013 on the file of the learned
                     Judicial Magistrate No.I, Pollachi.
                                             For Petitioner         : Mr.R.Vinayagavishnu
                                             For Respondent         : Mr.T.Shanmugarajeswaran
                                                                     Govt Adv.(Crl. Side).
                                                        ORDER

This Criminal Revision is filed against the judgment dated

20.0.2014 passed by the learned III Additional District and Sessions

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Judge, Coimbatore in CA.No.73 of 2013 confirming the judgment dated

16.05.2013 passed by the learned Judicial Magistrate No.I, Pollachi in

CC.No.663 of 2005.

2. The brief facts of the case is that on 29.11.2005 at about

10.45hrs near Meenkarai to Pollachi Road, the petitioner/accused herein

had driven the bus bearing Registration No.KL 9 N 7181 in a rash and

negligent manner and dashed the backside of the bike bearing

Registration No.TN41 L 4287 driven by the victim Kalimuthu and

caused his death. On the complaint given by PW1, the respondent

registered a case in Cr.No.499 of 2005 and after completion of

investigation filed the final report against the petitioner/accused for the

offences under Section 279 & 304A IPC. On summons the

petitioner/accused appeared before the trial Court and copies of the

documents were furnished to him at free of cost under Section 207 Cr.PC

and the substances of the charges were explained to the

petitioner/accused and he was questioned in Tamil and charges were

framed under Section 279 & 304A IPC and he pleaded not guilty and

claimed to be tried.

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3. On the side of the prosecution 13 witnesses viz., PW1 to

PW13 were examined and Exs.P1 to P8 and MO.1-Photographs were

marked.

4. The case of the prosecution as disclosed from the evidences

of the prosecution is as follow :-

PW1 and the deceased victim/Kalimuthu are relatives. They

had gone to Kerala for the purpose of attending to a financial business

and while they were returning in two separate two-wheelers on

29.11.2005 at 10.45hrs near Meenkarai, the petitioner/accused who was

driving a private bus bearing Registration No.KL-9-N-7181 at high speed

dashed against the victim's two wheeler, due to which, the victim was

thrown away from the vehicle and fell down and sustained injuries. The

bus came to halt after moving few distance. On seeing the accident, PW1

and PW3 who were coming behind the bus in the other two wheelers

stopped and lifted the victim. The victim sustained injuries on the right

head, forearm and upper knee. PW1 had taken the victim in Ambulance

to the Coimbatore Government Hospital, while crossing Pollachi, the

victim became unconscious and thereafter, the victim was taken to the

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Crl.RC.No.292 of 2014

Pollachi Government Hospital, where he was declared brought dead at

2.45p.m. The body was kept in the mortuary. PW1 had gone to the

Annamalai police station gave information and the complaint was

prepared by some one in the police station and PW1 had affixed his

signature in the complaint. The complaint given by PW1 is marked as

Ex.P1.

5. PW2 is yet another motorcyclist who followed PW1 and

witnessed the occurrence.

6. PW3 is the nephew of victim and he had deposed that he

heard about the accident.

7. PW4 is the wife of the victim and she had deposed about

hearing the accident and the death of the victim/her husband.

8. PW5 is the passenger who travelled in the bus driven by the

petitioner/accused, he had deposed that the petitioner/accused had driven

the bus in a high speed and hit the backside of the two wheeler and that

he had witnessed the accident.

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9. PW6 is yet another passenger who was traveling in the bus

driven by the petitioner/accused. He had spoken that the bus which was

driven by the petitioner/accused had dashed against the two wheeler and

the victim having sustained injury and were taken in an Ambulance to

Pollachi Government Hospital where the victim was declared brought

dead.

10. PW7 is the photographer who had taken photographs at the

place of occurrence. The photographs and the negatives taken by him

were marked as M.O.-1 series.

11. PW8 is the witness who had signed in the observation

mahazar prepared by the police, which was marked as Ex.P2.

12. PW9 is one of the witnesses who had attested in the rough

sketch Ex.P6

13. PW10 is the Motor vehicle inspector who had inspected the

offending vehicle driven by the petitioner/accused and the two wheeler

driven by the victim and issued MVI report Ex.P3.

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14. PW11 is the Doctor who had conducted the postmortem,

the postmortem report is marked as Ex.P4.

15. PW12 is the Sub Inspector of Police who had registered the

FIR based on the complaint given by PW1. The FIR is marked as Ex.P5.

16. PW13 is the Investigating Officer who completed the

investigation and filed the final report. The rough sketch and the Inquest

report were marked as Ex.P6 and Ex.P7 and the trip sheet of the bus

driven by the petitioner/ accused was marked as Ex.P8. PW13 deposed

that after examination of the witnesses and verification of documents and

receipt of the MVI report, he had filed the final report against the

accused on 07.12.2005 for the offences under Sections 279 and 304(A)

IPC.

17. After the closure of prosecution side evidence, the

petitioner/accused was questioned under Section 313 Cr.PC with regard

to the incriminating circumstances and he denied the charges and on his

side, he examined one Singaraja as defence witness/DW1. DW1 had

deposed that after dropping the passengers in the bus stop the bus had

moved slowly and the bus was not driven in a rash and negligent manner.

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18. The trial Court after hearing both sides, found the

petitioner/accused guilty and convicted him for the offences under

Section 279 and 304A IPC and sentenced to undergo six months simple

imprisonment and to pay a fine of Rs.500/-, in default to undergo another

one month period of simple imprisonment for the offence under Section

304(A) IPC and no separate punishment was awarded for the offence

under Section 279 IPC as the trial Court found that the ingredients for the

offence under Section 279 and 304(A) IPC are one and the same.

19. As against the judgment of conviction and sentence, the

petitioner/accused preferred an appeal in CA.No.73 of 2013 before the

learned III Additional District and Sessions Judge, Coimbatore. The

appellate Court after reappreciating the oral and documentary evidences,

dismissed the appeal and confirmed the order of the trial Court vide order

dated 20.01.2014, against which the present revision is filed.

20. The learned counsel for the petitioner while assailing the

judgment of both the Courts below would submit that the

petitioner/accused was charged for the offence under Section 279 and

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304A IPC. The prosecution has failed to prove its case beyond all

reasonable doubt. In order to convict an accused for the offence under

Section 279 and 304A IPC, the prosecution has to prove the ingredients

of rashness and negligence. In this case, the presence of the

eyewitnesses at the place of occurrence is highly doubtful and they seem

to be planted by the prosecution for its case and they could not have seen

the incident. Even assuming without admitting their presence, their

evidence does not disclose the ingredients of the offence to which the

petitioner was charged for and the Courts below have wrongly convicted

the petitioner/accused. They have not spoken as if the petitioner had

acted in a rash and negligent manner.

21. The learned counsel would submit that PW1, PW2, PW5

and PW6 are stated to be the witnesses to the occurrence. However,

analysis of the evidence would go to show that they are planted by the

prosecution for this case. Admittedly, PW1 and PW2 are close relatives

to the deceased. PW5 and PW6 are stated to be the passengers in the bus

driven by the accused. The time of occurrence, the time of alleged death

and the time of giving complaint would prove that PW1 and PW2 were

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Crl.RC.No.292 of 2014

not present in the scene of occurrence. The prosecution has willfully

failed to examine the Doctor who is stated to have initially admitted and

attended on the victim and declared him as brought dead. The

prosecution has willfully burked the accident register, since it was

against the case of the prosecution and that it would falsify that PW1 is

the person who had admitted the deceased. PW5 and PW6 are planted

witnesses and they are residing in some other villages which are about

15kms away from Pollachi Government Hospital and they have deposed

that they were travelling in the bus and that they have seen the accused

dashing against the motorcycle which could not have been possible.

Even as per their evidence, there were other passengers who were

standing and travelling in the bus. Further it is their case that on the next

day when they went to Pollachi Government Hospital, they came to

know about the death of the victim and that they have given statement to

the police. There is no need for the witnesses to go to Pollachi

Government Hospital on the next day and thereby their evidence is

highly doubtful.

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22. The learned counsel would further submit that it is the case

of the prosecution that the accident had happened at 10.45am and the

victim was taken in 108 Ambulance after few minutes of the accident.

Whereas, as per the prosecution, the victim is stated to have died at

2.45pm which is nearly after four hours from the time of occurrence. No

evidence has been let in by the prosecution as to what transpired in

between and this fact coupled with burking of the copy of the accident

register makes the case of the prosecution highly doubtful. Further none

of the witnesses have spoken that the accused/petitioner had driven the

vehicle in rash and negligent manner, he would submit that both the

Courts below without properly appreciating the evidence have committed

grave error and convicted the petitioner/accused. In support of his

contention, the learned counsel for the petitioner cited the following

decision reported in 2017-1-LW(crl.) 160 in the case of M.Subramani

v. State rep by Inspector of police, Edapadi Police station, Salem

District.

23. Per contra, the learned Government Advocate (crl. side)

would submit that the prosecution by examining PW1 to PW13 and

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Crl.RC.No.292 of 2014

marking Ex.P1 to P8 and the MO1/photographs has proved the case

beyond all reasonable doubt and the Courts below after appreciating the

evidence of the witnesses in a proper manner and having taking into

consideration the nature of the evidence, convicted and sentenced the

accused. There is no infirmity in the judgments of both the Courts below

warranting interference in revision and he would pray for dismissal of the

revision petition.

24. Heard both sides and perused the materials on record.

25. In this case, the PW1 and PW2/relatives of the deceased,

PW5 and PW6/are the passengers in the bus they are stated to be the

eyewitness to the occurrence. The incident is stated to have happened at

10.45am and the victim is stated to have died at 2.45pm nearly after four

hours from the time of the occurrence. PW1 is stated to have

accompanied the deceased in the 108 Ambulance. He is the one who is

stated to have admitted the victim/deceased at Pollachi Government

Hospital. However, the victim is stated to have died at 2.45pm whereas

no materials have been produced by the prosecution to show what

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Crl.RC.No.292 of 2014

transpired in between. Further, the Doctor who is stated to have attended

the victim immediately after the accident and declared him to be brought

dead had not been examined by the prosecution and the copy of the

accident register had not been produced or marked thereby creating a

doubt with regard to the prosecution case. It is the case of the petitioner

that PW1 could not have seen the occurrence and that he is a planted

witness, further there is also a delay in registration of the FIR creating a

doubt with regard to the case as projected by the prosecution

contradicting the evidence of PW1. It is the case of PW2 that the injured

was initially sent to Alva hospital after the accident and there is

contradiction between the evidence of PW1 and PW2 who are stated to

be relatives of the deceased/victims who had accompanied the deceased

at the time of the occurrence and thereby creating a doubt with regard to

their presence at the scene of occurrence.

26. Now coming to the evidence of PW5 and PW6 who are

stated to be the passengers in the bus driven by the accused and

eyewitness to the occurrence, PW5 is the resident of Uthukuli village and

he was travelling in the bus and it is a case that he went to Pollachi

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Crl.RC.No.292 of 2014

Government Hospital the next day and he came to know that the victim

had died on the previous day and the Inspector examined him on the next

day. PW6 is also a resident of Uthukuli village and he has also stated

that the next day he went to Pollachi Government Hospital and he came

to know that the victim died on the previous day and the police examined

him on the next day. It is admitted by both the witnesses PW5 and PW6

that they were sitting and that several passengers were travelling by

standing in the bus at the time of accident, when that is so they could not

have seen what had happened on the front side of the bus. Their

evidence is also suspicious. It is the further case of the revision

petitioner though PW1, PW2, PW5 and PW6 could not have seen the

occurrence, even assuming their evidence to be true without admitting

their presence the reading of their evidence does not make out the case

for the offence under Section 279 and 304A IPC, since they have stated

anything as if the vehicle was driven by the petitioner/accused in a rash

and negligent manner.

27. At this juncture, it is relevant to refer to the decision of this

Court reported in 2017-1-LW.(Crl.)160 (M.Subramani Vs. State rep.

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By Inspector of Police, Edapadi Police Station, Salem District),

wherein this court has held as follows:-

“19.In State of Karnataka vs. Sathish (1998)8 SCC

493), in a road accident where the accused was prosecuted

under Section 304-A IPC, one of the witness had stated that

the bus drive came driven the bus at a high speed. The

Hon'ble Apex Court held that it would not satisfy the

requirement of the driver driving the vehicle in a rash and

negligent manner as required under Section 304-A IPC and

acquitted the accused.”

20.In this respect, the following observations made

by the Hon'ble Supreme Court in SATISH (supra) are relevant

here to note:-

3.Both the Trial Court and the Appellate Court held the

respondent guilty for offences under Sections 337, 338 and

304-A IPC after recording a finding that the respondent was

driving the truck at a “high speed“. No specific finding has

been recorded either by the Trial Court or by the First

Appellate Court to the effect that the respondent was driving

the truck either negligently or rashly. After holding that the https://www.mhc.tn.gov.in/judis/

Crl.RC.No.292 of 2014

respondent was driving the truck at a “high speed“, both the

Courts pressed into aid the doctrine of res ipsa loquitur to hold

the respondent guilty.

4.Merely because the truck was being driven at a “high speed“

does not bespeak of either “negligence“ or “rashness“ by

itself. None of the witnesses examined by the prosecution

could give any indication, even approximately, as to what they

meant by “high speed“. “High speed“ is a relative term. It was

for the prosecution to bring on record material to establish as

to what it meant by “high speed“ in the facts and

circumstances of the case. In a criminal trial, the burden of

providing everything essential to the establishment of the

charge against an accused always rests on the prosecution and

there is a presumption of innocence in favour of the accused

until the contrary is proved. Criminality is not to be presumed,

subject of course to some statutory exceptions. There is no

such statutory exception pleaded in the present case. In the

absence of any material on the record, no presumption of

“rashness“ or “negligence“ could be drawn by invoking the

maxim “res ipsa loquitur“. There is evidence to show that

immediately before the truck turned turtle, there was a big

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Crl.RC.No.292 of 2014

jerk. It is not explained as to whether the jerk was because of

the uneven road or mechanical failure. The Motor Vehicle

Inspector who inspected the vehicle had submitted his report.

That report is not forthcoming from the record and the

Inspector was not examined for reasons best known to the

prosecution. This is a serious infirmity and lacuna in the

prosecution case.

21.Subsequently, in Abdul Subhan vs. State (NCT

of Delhi) 2007 Cri.L.J. 1089, in a road accident case for an

offence under Section 304-A IPC, the only available evidence

of an Head Constable is that the bus driver had driven the bus

fastly. The Delhi High Court relying on the Hon'ble Apex

Court decision in SATISH (supra) held that the bus driver

cannot be held to have drove the bus in a rash and negligent

manner.

22.In State vs. Avadh Kishore Crl.L.P. No.213 of

2007 dated 30.1.2009 (Delhi High Court)}, the Delhi High

Court reiterated its earlier view in ABDUL SUBHAN (supra).

23.Recently in Puttaiah @ Mahesh vs. State by

Rural Police Crl. Review Petition No.1317 of 2010 dated

4.3.2016 (Karnataka High Court), the Karnataka High Court

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held as under:

“In this view of the matter, both the Trial Court as

well as the First Appellate Court have not assessed the oral

and documentary evidence in right perspective. Both the

Courts should have navigated through the evidence of

material witnesses cautiously. Glaring inconsistencies have

been brushed aside as minor variations. They have adopted

wrong approach to the real state of affairs and have not

properly scanned the evidence. Both the Courts have forgotten

that the initial burden was on the prosecution to establish the

charge of rashness or negligence beyond reasonable doubt.

Thus, the judgments of both the Courts suffer from perversity

and illegality. Hence, this Court is of the opinion that the

revision petition is to be allowed.”

28. This Court being a revisional Court is aware of the legal

position that it cannot re-appreciate the evidence like an appellate Court.

But when it is brought to the knowledge of the Court that there is gross

misappreciation of evidence by Courts below and that the Courts without

properly analysing the truthfulness of the evidence had rendered a

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Crl.RC.No.292 of 2014

finding and erroneously convicted the accused, the power of this Court

has been preserved by Section 397 and 401(1) Cr.PC.

29. In this case, the presence of PW1, PW2, PW5 and PW6 is

doubtful, further the prosecution has not examined the Doctor who is

alleged to have initially admitted the victim and declared him dead.

Further, the accident register had been burked for reasons not known.

Though, the accident has taken place at 10.45am, the victim had died at

2.45pm nearly four hours after of the occurrence, nothing has been

elicited by the prosecution to prove what had happened or what

transpired between 10.45am to 2.45pm. Further there is a delay in

registration of the case, thereby making the prosecution case doubtful.

The evidence of the witnesses do not state that the accident had occurred

due to rash and negligent driving of the accused.

30. Though due to the incident, the person has died the accused

cannot be convicted on mere surmises and conjecture and can be

convicted only on legal evidence. The law does not permit the court to

punish the accused on the basis of moral conviction or suspicion alone.

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The burden of proof in criminal trial never shifts and the burden is

always on the prosecution to prove its case beyond all reasonable doubts

on the basis of acceptable evidence. It is settled principle of criminal

jurisprudence that the more serious the offence, the stricter the decree of

proof required. In this case, the prosecution has failed to prove its case

beyond all reasonable doubt and the Courts below without properly

appreciating and analysing the evidence have erred in convicting the

petitioner/accused.

31. In the result, the criminal revision stands allowed and the

inpugned judgment of conviction and sentence passed by both the Courts

below are set aside. The revision petitioner/accused is acquitted from the

charges levelled against him. The bail bond if any executed by him shall

stand cancelled and the fine amount if any paid by him shall be refunded

to him.

08.02.2021

tsh To

1.The III Additional District and Sessions Judge, Coimbatore.

2.The Judicial Magistrate No.I, Pollachi.

3. The Public Prosecutor, High Court of Madras.

4.The Inspector of Police, Annamalai Police Station.

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Crl.RC.No.292 of 2014

A.D.JAGADISH CHANDIRA, J.

tsh

Crl.RC.No.292 of 2014

08.02.2021

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