Madras High Court
M.Raja .. Revision vs State Rep. By on 2 November, 2021
Crl.R.C.No.1174 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.11.2021
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
Criminal Revision Case No.1174 of 2014
M.Raja .. Revision Petitioner
Versus
State rep. By
The Inspector of Police,
Perundurai Police Station,
Erode.
Crime No.131 of 2007. .. Respondent
Prayer: Criminal Revision Case filed under Section 397 and 401 of the Code
of Criminal Procedure praying to set aside the judgment dated 15.09.2014
passed in C.A.No.24 of 2014 on the file of the No.II, Additional Sessions
Judge, Erode and confirming the conviction and sentence passed by the
learned District Munsif-cum-Judicial Magistrate, Perundurai in C.C.No.93 of
2007 dated 12.02.2014.
For Petitioner : Mr.S.Kaithamalai Kumaran
For Respondent : Mr.L.Baskaran,
Government Advocate (Crl.side)
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ORDER
The petitioner has come forward with this Criminal Revision Case
challenging the conviction and sentence imposed by the trial Court which
was confirmed by the learned No.II, Additional Sessions Judge, Erode in
C.A.NO.24 of 2014, dated 15.09.2004.
2.The petitioner was arrayed as an accused in C.C.No.93 of 2007
registered for the offences under Sections under Sections 279, 337(2 counts),
338 and 304 (A) IPC in Crime No.131 of 2007 on the file of the Inspector of
Police, Perundurai Police Station, Erode.
3.The accused / petitioner was convicted for the offences under
Sections 279, 337(1 count), 338 and 304(A) IPC, and sentenced to pay a fine
of Rs.1,000/- in default Simple Imprisonment for 15 days for the offence
under Section 279 I.P.C. to pay a fine of Rs.500/- in default Simple
Imprisonment for 10 days, for the offence under Section 337 (1 count) I.P.C.,
to pay a fine of Rs.1,000/- in default Simple Imprisonment for 15 days, for
the offence under Section 338 of I.P.C., to under go Simple Imprisonment for
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Crl.R.C.No.1174 of 2014
1 year and to pay a fine of Rs.1,000/- in default Simple Imprisonment for one
month, for the offence under Section 304(A) I.P.C. (Total fine of Rs.3,500/-)
4.The facts reveal that on 04.03.2007 at about 22.00 hours, a Bolero
Jeep bearing Registration No.TN 58-G-0099 was driven by one Subramaniya
Bharathi (deceased) with his family members from East to West on NH 47
road and behind his vehicle, there was a Maruti 800 Car bearing Registration
No.TN 39-AE-8185 driven by one Sathya Narayanan(W.No.6), when it
comes in front of Jai Sakthi Hallow Bricks situated on the said road at that
time the tanker lorry bearing Reg.No.TN 01-W-1679 driven by its
driver/accused in a rash and negligent manner from West to East, dashed
against the Bolero Jeep and also hit the Maruti Car. Due to the said accident,
the driver Subramaniya Bharathi of the Bolero Jeep sustained grievous
injuries and the driver of the Maruti Car Sathya Narayanan and Banumathi
sustained severe injuries and on the way to hospital, the said Subramaniya
Bharathi died. Based upon the complaint given by P.W.1 who is the owner of
the Jai Sakthi Hollow Bricks company. The accused was charged under
Section 279,337,338 & 304(A) of IPC. The accused denied the charges, took
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Crl.R.C.No.1174 of 2014
defence that at the time of the accident he drove a vehicle in a normal speed,
but while nearing the occurrence place laying of new road formation was
going on. But the driver of the Bolero Jeep attempted to overtake the Maruthi
car, and at the time due to his negligent act he dashed against the opposite
lorry driven by this accused and thereby, the accident happened. But, his
defence was not accepted by the trial Court and he was convicted based upon
the evidence adduced on the side of the prosecution i.e., P.W.1 to P.W.9, and
Ex.P1 to Ex.P15 and M.O.1 to M.O.3. He was convicted by the learned trial
Judge, against which, he has preferred Crl.A.No.24 of 2014 before the
learned Additional Sessions Judge No.II, Erode. The Appellate Court also
confirmed the conviction and sentence imposed by the trial Court by relying
on the evidence of prosecution. Aggrieved by the said judgment, the accused
has preferred this Criminal Revision.
5. The learned counsel for the revision petitioner submitted that to
prove the charges against the accused, the prosecution is bound to establish
the negligent act on the part of the accused. At the time of the alleged
accident, the witnesses, who were arrayed as eye-witnesses have not seen the
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occurrence for the reason that the alleged eye-witnesses P.W.1 to P.W.3 were
not able to see the occurrence place from their Jai Sakthi Hollow Bricks
Company, because due to the formation of the new road, up to 7 feet height
the soil was heaped thereby they could not able to see the alleged accident. To
established that fact he relied on the rough sketch marked as Ex.P5 on the
side of the prosecution. Hence, the main objection raised by the revision
petitioner is that the prosecution has not proved the negligent act of the driver
at the time of alleged occurrence beyond reasonable doubt.
6.The learned Government Advocate (Crl.Side) appearing for the
respondent, submitted that immediately after the alleged occurrence FIR was
lodged based upon the complaint given by P.W.1, who saw the occurrence
and two other persons were examined as P.W.2 and P.W.3 apart from them,
another eye-witness P.W.4 Banumathy who was one of the occupants in the
said Bolero Jeep. So the learned Government Advocate vehemently
contended that negligent on the part of the accused / driver proved by the
prosecution beyond reasonable doubt which was rightly affirmed by Courts
below. So he prayed for dismissal.
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Crl.R.C.No.1174 of 2014
7.Since the accused was convicted and sentenced for the offences
under Sections 279, 331(1 Count), 338 and 304(A) IPC, the negligence on the
part of the driver of the vehicle is to be proved beyond reasonable doubt. On
considering the objection raised by the learned counsel for the revision
petitioner that the rough sketch marked as Ex.P.5 before the trial Court is
perused. The occurrence place is noted on the Southern side of the newly
formed NH4 road. The Jai Sakthi Hollow Bricks company is situated on the
Northern side of the newly forming 4 way lane NH 47 road. Approximately,
the said company is situated 100 feet from the alleged occurrence place and
in between there is a 7 feet soil heap in the newely formed 4 way NH 47 road.
Furthermore, from Ex.P.5 rough plan it could be inferred that on the Southern
side of the old NH road, the alleged accident took place. P.W.1 to P.W.3 in
their Chief examination have stated as follows:
P.W1 deposed in Chief as follows : “04.03.2007 md;W
,uT Rkhh; 10 kzpf;F ehDk;> ee;jNfhghy;> rf;jpNty;
MfpNahh; vd; fk;ngdpf;F Kd;G epd;W nfhz;L Ngrpf;
nfhz;bUe;Njhk;. mg;NghJ yhhp xd;W Nkw;fpypUe;J
fpof;F Nehf;fp nuhk;g NtfkhfTk;>
m[hf;fpuijahfTk; Xl;bte;J fpof;fpypUe;J
Nkw;FNehf;fp te;j xU [{g; kPJNkhjp me;j
[{g;gpw;Fgpd;dhy; te;j khUjp fhh;kPJ NkhjpaJ.
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Crl.R.C.No.1174 of 2014
Mjdhy; me;j [{g; kw;Wk; khUjp fhUf;Fk; NrjkhdJ.
me;j [{g;ig Xl;b te;j Xl;Ldh; kw;Wk; mjpy;
te;jtUf;Fk; fhakhdJ. khUjp fhiu
Xl;bte;jtUf;Fk; fhakhdJ. Nyhl;l~; kUj;Jtkid
Mk;Gyd;rpy; te;J [{g;gpy; te;j G+q;Nfhij>
biutiuAk; <NuhL Nf.vk;.rp.kUj;Jtkidapy;
Nrh;jj
; hh;fs;. Biuth; ,ue;Jtpl;ljhf kUj;Jth;
nrhd;dhh;fs;....”
P.W.2 also deposed in Chief as follows: “ 04.03.2007 md;W
ehDk;> n[af;FkhUk;> rf;jpNty; MfpNahh;
n[af;Fkhh; elj;jp tUk;
`Nyh gphpf;]; fk;ngdpapy; ,uT 10 kzpf;F
,Ue;Njhk;. mg;NghJ nkapd;Nuhl;by; ,Ue;jNghJ
Nfhit ngUe;Jiw Nehf;fp uhN[~;thp yhhp xd;W
jhWkhwhfTk;> NtfkhfTk; nfhQ;rk;mrhy;l;lhfTk;
fpof;fpypUe;J Nkw;Nf nrd;W nfhz;bUe;j nghypNuh
P mbj;jJ.”....
[{g;gpw;Fg;gpd;dhy;te;j khUjp fhh;kJ
P.W.3 deposed in Chief as follows : “ehd;
GJg;ghisaj;jpy; FbapUe;J buhf;lh; kw;Wk; `hNyh
gphpf;~; itj;J elj;jp tUfpNwd;. m.rh.1>2
khjq;fSf;F Kd;G ,uT 10 kzpf;F ehd; Nfhghy;
m.rh.1>2 MfpNahh; m.rh.1d; fk;ngdp Kd;G epd;W
Ngrpf; nfhz;bUe;Njhk;. mg;NghJ fpof;fpypUe;J Nkw;F
Nehf;fp xU nghypNuh [{g; te;J nfhz;bUe;jJ.
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Crl.R.C.No.1174 of 2014
mg;NghJ> Nkw;fpypUe;J fpof;F Nehf;fp xU yhhp
jhWkhwhfTk;> Xl;bf; nfhz;Lte;J nghypNuh [{g;gpy;
mbj;J gpd;dhy; te;j khUjp fhhpd;kJ
P NkhhjaJ.
ehq;fs; Xbg;Ngha; ghh;j;Njhk;. yhhpapd; biuth; ,wq;fp
Xbtpl;lhh;.”....
8.All the three witnesses categorically stated that they stood in front of
the Jai Holo Bricks company at 10 p.m., on 04.03.2007, which is situated on
the Northern side of newly forming NH 4 lane road.
During Cross-examination P.W.1 to P.W.3 have stated as follows:
P.W1 deposed in Cross-examination as follows : “ rk;gt ,lj;jpw;F
tlGwKs;s m.rh.1y; fk;ngdpf;F ntspapy; epd;W Ngrpf;
nfhz;bUe;Njhk;. rk;gtk;ele;j NuhL fpoNky; NuhL. rk;gt
rkaj;jpy; me;j ,lj;jpy; 4 topr;rhiy Ntiy eilngw;Wf;
nfhz;bUe;jJ. mjdhy; Nuhl;by; njd;Gwj;jpy; gioa Nuhl;by;
kl;Lk; ,uz;L tz;bfs; kl;Lk; Ngha; tUk;gb tpl;Ltpl;L Ntiy
nra;J nfhz;bUe;jhh;fs;. Nuhl;bd; njd;Gwj;jpy; 2 mb mfyj;jpy;
ntl;b [y;yp Nghl;Lepug;gpapUe;jhh;fs;. Rhiyf;F tlGwj;jpy; Rkhh;
6 mb cauj;jpy; kz; nfhl;lg;gl;L Nklhf;fp rhiy mikg;gjw;fhf
Nghlg;gl;bUe;jhh;fs;.....”
P.W.2 deposed in Cross-examination as follows : “ m.rh.1d; fk;ngdpf;F
ntspapy; epd;W Ngrpf; nfhz;bUe;Njhk;. rk;gtk;ele;j NuhL
fpoNky; NuhL. rk;gt rkaj;jpy; me;j ,lj;jpy; 4 topr;rhiy
Ntiy eilngw;Wf; nfhz;bUe;jJ. mjdhy; Nuhl;bd; njd;Gwj;jpy;
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Crl.R.C.No.1174 of 2014
gioa Nuhl;by; kl;Lk; ,uz;L tz;bfs; kl;Lk; tUk;gb
tpl;Ltpl;L Ntiy nra;Jnfhz;bUe;jhh;fs;. Nuhl;bd; njd;Gwj;jpy;
2 mb mfyj;jpy; ntl;b [y;yp Nghl;Lepug;gpapUe;jhh;fs;. Rhiyf;F
tlGwj;jpy; Rkhh; 6 mb cauj;jpy; kz; nfhl;lg;gl;L Nklhf;fp
rhiy mikg;gjw;fhf Nghlg;gl;bUe;jhh;f;s. fk;ngdpapypUe;J
ehq;fs; ghh;f;Fk;NghJ rk;gt ,lj;ij Neubahf ghh;gg
; jw;F
tha;gpy;iy vd;why; rhpay;y....”
P.W.3 deposed in Cross-examination as follows : “ m.rh.1d; vdf;F
nghpag;ghkfd; m.rh.1k;> ehDk; me;j fk;ngdpapy; epd;W Ngrpf;
nfhz;bUe;Njhk;. fk;ngdpf;F Kd;G fpoNky; Njrpa neLQ;rhiy
NghLtjw;fhf kz; nfhl;lg;gl;L Rkhh; 6 mb cauj;jpw;F
rhiymikf;Fk; gzp ele;J nfhz;bUe;jJ. me;j rhiyf;F
njd;Gwk; gioa Nuhl;il Nghf;Ftuj;J nry;Yk;gb
Nghl;bUe;jhh;fs;....”
9.During cross-examination, all the three witness categorically admit
that they were stood in front of the company and also admit that there is a soil
heap upto 7 feet was laid due to the formation of the new road. Though, in the
complaint, it was stated that they stood on the newly formation of the road
and saw the occurrence, but their own evidence clearly established that all the
three witnesses were stood in front of the Jai Hollow Block company, which
is situated on the Northern side of the newly laying NH 47 road, which is
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more than 7 feet height. Admittedly, the alleged occurrence took place on the
Southern side of the newly formed NH 47 road. That being so, all the three
witnesses could not able to see the occurrence for the reason that there was a
soil heap upto 7 feet.
10.Moreover, the alleged occurrence took place at 10.00 p.m., all the
three alleged witnesses could not see the occurrence, as there was formation
of newly NH 47 road which was in the height of 7 feet from below. But, the
trial Court failed to appreciate the rough sketch Ex.P.5 factually. Facts could
be inferred from the circumstances as well as the evidence. Here both
circumstances and evidence have also not been cogently supported by the
evidence of the prosecution. If a man stand behind 7 feet height of the road,
he could not able to see what is happening on the opposite of that road. Here
in the instant case, all the three witnesses stood in front of the company, who
could not see the occurrence as per the physical features noted in Ex.P5 –
rough sketch. Therefore, the prosecution failed to prove the alleged
occurrence with the help of the eye-witnesses and not proved the negligence
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on the part of the driver of the vehicle beyond reasonable doubt. But based
upon the evidence of P.W.1 to P.W.3, the trial Court as well as the Lower
appellate Court have come to a conclusion that the accident happened due to
the negligent act of the driver. Hence, the findings given by the Court belows
are set aside as it failed to appreciate the evidence properly.
11. Thereby the conviction and sentence imposed on the accused are
set aside. The petitioner/accused is acquitted of the charges. The bail bond, if
any, executed by the accused, shall stand cancelled. The fine amount, if any,
paid by the petitioner is directed to be refunded.
12. Accordingly, the revision is allowed. Consequently connected
Miscellaneous Petition is Closed.
02.11.2021
Index : Yes / No
Speaking Order:Yes/No
rri
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To
1.The Additional Sessions Judge, No.II,
Erode.
2.The District Munsif-cum-Judicial Magistrate,
Perundurai.
3.The Public Prosecutor,
High Court of Madras.
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T.V.THAMILSELVI, J.
rri
Crl.R.C. No.1174 of 2014
02.11.2021`
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