Madras High Court
Dharmaraj ... Accused/ vs State By The Inspector Of Police on 18 November, 2021
Crl.RC.No.347 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.11.2021
CORAM
THE HON'BLE MS. JUSTICE R.N.MANJULA
Crl.RC.No.347 of 2016
Dharmaraj ... Accused/ Appellant /Petitioner
Vs.
State by the Inspector of Police
M-3, Kovilpalayam Police Station
Crime No.410 of 2010
Coimbatore District. ... Respondent
Prayer:- This Criminal Revision is filed under Sections 397 and 401 of Cr.P.C. to
set aside the conviction imposed in the judgment dated 05.01.2016 made in C.A. No.
35 of 2015 of the Learned Principal District and Sessions Court, Coimbatore
confirming the conviction imposed in the judgment dated 23.01.2015 made in C.C.
No. 303 of 2011 of the Learned Judicial Magistrate No.2, Coimbatore.
For Petitioner : Mr. V.Anandhamurthy
For Respondent : Mr. A.Gopinath
Government Advocate (Crl. Side)
ORDER
This Criminal Revision Petition has been preferred challenging the judgment
of the Learned Principal District and Sessions Judge, Coimbatore dated 05.01.2016
made in Criminal Appeal No. 35 of 2015 confirming the conviction imposed in the
judgment of the Learned Judicial Magistrate-II, Coimbatore in C.C. No.303 of 2011
dated 23.01.2015.
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Crl.RC.No.347 of 2016
2.This case has arisen out of a road traffic accident. According to the case of
the prosecution, on 05.12.2010 at 1.30 p.m. the accused was driving a share auto
bearing Registration No. TN 38 – X 8289 from Kalapatti to Saravanampatti road,
Kovilpalayam. At the time of accident, the deceased, Thiru.Muruganandham and
PW1, viz., Thiru.Mohan Kumar and PW2, viz., Thiru.Praveen Kumar were
travelling as passengers. PW1 and PW2 were sitting on the back seat and the
deceased was sitting in the front seat along with the accused who was driving the
share auto. It is alleged that the accused was driving the auto in a rash and negligent
manner. While the auto was coming near Shanthome , it got toppled on the left side
of the road. In the said accident Muruganandham died and the auto also got
damaged.
3.On a complaint given by PW1, viz., Mohan Kumar, a case was registered in
Crime No.410 of 2010 of N3-Kovilpalayam Police Station, under Sections 279 and
304-A IPC. After completion of the investigation, charge sheet was filed against the
accused for the offences under Sections 279 and 304-A and the same was taken on
file by the Learned Judicial Magistrate-II, Coimbatore in C.C. No. 410 of 2010.
4.After complying the legal mandates, the trial was conducted and during the
course of trial on the side of the prosecution, 11 witnesses were examined and
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Crl.RC.No.347 of 2016
Exs.P1 to P9 were marked as documents. On the other side of the accused/petitioner,
no documents were marked and no witnesses were examined.
5. It appears from the evidences of the prosecution witnesses that on
05.12.2010, PW1 along with PW2 and deceased travelled in the share auto driven by
the accused. They went in the auto for the purpose of taking xerox copies of the
certificates of the deceased. At that time, PW1 and PW2 were seated at the back seat
and deceased was sitting in the front seat along with the accused. While the auto was
coming near Senthottam, the accused tried to turn the auto from West to North.
During that course, the auto got toppled and fell down into a pit on the road. In the
said accident, Muruganandham (deceased) got injuries on his head and he was taken
to the hospital for treatment and on examination, he was declared dead. After giving
intimation to the parents, PW1 has given a complaint (Ex.P1). PW2 has
corroborated the material aspects of the occurrence with PW1. PW3 is the father of
the deceased and he had no knowledge about the trip undertaken by the deceased
along with PW1 and PW2. On hearing the accident, PW3 rushed to the hospital and
came to know that he was succumbed to the injuries. PW4, viz., Vijay Raj is the
cousin of the deceased and he also visited the deceased at the hospital. PW5, viz.,
Lakshmanan and PW7, viz., Devaraj stood as witnesses for Observation Mahazar,
but they were treated as hostile witnesses and their signatures in the observation
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Crl.RC.No.347 of 2016
mahazar have been marked as Exhibits P-2 and P-3. PW6, viz., Selva Kumar is the
relative of the deceased and he also went to the hospital to see the deceased after
knowing the occurrence. PW8, viz., Kulanthaivelu, Doctor, who conducted
postmortem, gave a report stating that the deceased could have died due to shock and
hemorrhage due to multiple injuries and PW8's report has been marked as Ex.P4.
6. PW9, viz., Subbiah, Inspector, who is the Investigation Officer took up the
case for investigation on 05.12.2010 itself and went to the place of occurrence,
visited the place of occurrence and prepared the observation mahazar (Ex.P5) and
Rough sketch(Ex.P6). He went to the hospital around 7.30 p.m. on 06.10.2010 and
conducted Inquest on the body of the deceased. He arrested the accused on
09.10.2010 at 1.30 p.m. and sent him for remand. On 10.12.2010, he sent the vehicle
involved in the accident to the Motor Vehicle Inspector for his inspection and got his
report. PW11, viz., Vijaya Kumar, Motor Vehicle Inspector gave a report stating
that the accident had not occurred due to mechanical failure of the vehicle. After
completing the investigation, PW9 laid the charge sheet against the accused for the
offences under Sections 279 and 304-A IPC.
7. After concluding the trial and on considering the materials available on
record, the learned Trial Judge found the accused guilty for the offences under
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Crl.RC.No.347 of 2016
Sections 279 and 304-A IPC and convicted them. Aggrieved over that, the accused
preferred an appeal in C.A.No.35 of 2015 before the learned Principal District and
Sessions Judge, Coimbatore and that was also dismissed by confirming the judgment
of the Trial Court. Challenging the same, the present revision has been filed.
8. Learned Counsel for the Revision Petitioner submitted that there is no rash
and negligent driving on the part of the Petitioner/accused and the prosecution has
not proved the same before the Trial Court. He further submitted that the Courts
below have ommitted to appreciate the important aspects involved in this case and
convicted the accused on the wrong presumption that he had committed the offences.
And he further submitted that the accident had taken place only because of the bad
condition of the road and not because of the rash and negligent driving of the
accused and that the prosecution had ommitted to investigate the matter fairly.
9. The important witnesses for this occurrence are PW1 and PW2, who were
passengers of the share auto, driven by the accused /petitioner at the time of
occurrence. The fact that the auto was driven by the accused /petitioner was not
denied. The fact that it met with an accident, was also not in dispute. The only
contention of the learned counsel for the petitioner is that despite the accident
occurred, it was not due to the rashness and negligence on the part of the
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Crl.RC.No.347 of 2016
accused/petitioner. Hence, on this aspect, it is crucial to look into the evidences of
the PW1 and PW2. It is seen from PW1' s evidence that the deceased was sitting on
the back seat of the vehicle and PW1 and PW2 were also sitting on the back seat.
10. Learned Government Advocate (criminal side) submitted that the act of
the accused by allowing the deceased to be seated with him itself is an act of
negligence, it cannot be over looked. But it has to be noted that in the cross
examination of PW1 and PW2, that they have stated some contradictory statement
about the manner in which they had travelled in the said auto. In their cross
examination, they have stated that all the three including PW1 and PW2 and the
deceased were seated together in the back seat of the said auto.
11.The Learned Trial Judge has observed that PW-1 and PW-2 have been
cross-examined after a period of two and half years from the date of their chief-
examination. Even if it is true that the accused had allowed the deceased to be seated
along with him in the driver seat, the evidences of PW1 and PW2 would show that
when the auto was coming near Senthottam, the auto driver took a turn from West to
North. At that time, the auto got toppled and fell into the pit on the road. In view of
that the deceased was thrown out of the auto and got injuries on his head.
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Crl.RC.No.347 of 2016
12. It is not the case of the prosecution that the petitioner /accused had
mistakenly turned the auto from West to North side. It is seen from the evidences of
PW1 and PW2 that the accused attempted to turn the vehicle as part of the trip and
not as an unnecessary venture. It is not denied that the road near Senthottam was
uneven and there were pits on the roads. Both PW1 and PW2 have not stated that
the accused drove the auto in a rash and negligent manner. In fact, they have stated
that the accused had driven the auto in a normal speed and he got struck in the pits on
the road. The drivers of vehicles cannot have any control over the conditions of the
road.
13. None of the passengers of the auto who are examined as witnesses have spoken
in their evidence that auto was driven by the accused in a negligent manner. The rest
of the witnesses who had examined on the side of the prosecution, have not stated
about the accident and the manner in which the accident had taken place. There is no
evidence available on record to show that the accused had driven the vehicle in a
rash and negligent manner. Since evidences of the witnesses do not pin-point out the
rash and negligence on the part of the driver the accused can not be found guilty for
the offences charged against him. Since the courts below had omitted to consider the
important aspects of the evidence on record and the circumstances of the case, I feel
the judgements of the lower courts should be set aside.
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Crl.RC.No.347 of 2016
14. In the result, this Criminal Revision is allowed and the judgment dated
05.01.2016 made in C.A. No. 35 of 2015 on the file of the Learned Principal District
and Sessions Court, Coimbatore is set aside.
18.11.2021
Speaking/Non-speaking
Index : Yes/No
Internet : Yes/No
Maya
To
1. The Station House Officer
Kandamangalam Police Station
Villupuram District.
2. The Judge,
Principal District and Sessions Court,
Coimbatore.
3. The Judge,
Judicial Magistrate No.2,
Coimbatore.
4. The Public Prosecutor
Madras High Court
Chennai.
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Crl.RC.No.347 of 2016
R.N.MANJULA, J.
Maya
Crl.RC.No. 347 of 2016
Dated : 18.11.2021
https://www.mhc.tn.gov.in/judis
