Madras High Court
Anil Kumar vs State Rep. By The on 5 October, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.10.2021
CORAM
THE HON'BLE Mr. JUSTICE C.V.KARTHIKEYAN
Crl.R.C.No. 649 of 2015
Anil Kumar ... Petitioner/Appellant/Accused
Vs.
State rep. by the
Inspector of Police
Nagoor Police Station
Nagapattinam District
(Crime No. 12 of 2010) ...Respondent/Respondent/Complainant
Prayer: Criminal Original Petition filed under Section 397 read with 401
Cr.P.C.,to set aside the conviction and sentence made in Crl.A.No. 28 of
2012 dated 09.06.2014 on the file of the District and Sessions Judge,
Nagapattinam, in confirming the Judgment made in C.C.No. 256 of 2010
dated 25.06.2012 on filed of the Judicial Magistrate No. II (FAC),
Nagappattinam and thus allow the criminal revision.
***
For Petitioner : Mr. Swami Subramaniam
For Respondent : Mr.E.Raj Thilak
Additional Public Prosecutor
https://www.mhc.tn.gov.in/judis/
2
ORDER
This Criminal Revision case has been filed under Section 397 read
with 401 Cr.P.C., by the accused in C.C.No. 256 of 2010 which was
pending on the file of the learned Judicial Magistrate, Nagapattinam,
wherein by Judgment dated 25.06.2012, the present petitioner, who was the
sole accused was convicted for offence under Sections 279, 338 and 304(A)
IPC and was sentenced to undergo one year simple imprisonment for two
counts, under Section 304A IPC and separate sentence was not imposed
under Section 279 IPC in view of Section 71 IPC and also to pay a fine of
Rs.1,000/-, in default to undergo one month simple imprisonment for
offence under Section 338 IPC.
2. The petitioner herein questioned that particular conviction and
sentence and filed Crl.A.No. 28 of 2012 and the learned District and
Sessions Judge, Nagapattinam, by Judgment dated 09.06.2014 had
dismissed the Criminal Appeal and had confirmed both the conviction and
sentence imposed by the learned Judicial Magistrate No.II, Nagapattinam.
Aggrieved by the said Judgment, the petitioner, who is the accused, has
filed the present Criminal Revision Case.
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3. Heard arguments advanced by Mr. Swami Subramaniam,
learned counsel for the petitioner and Mr. E.Raj Thilak, learned Additional
Public Prosecutor appearing for the State.
4. On 04.01.2010 at around 22.45 hours, at the Nagore Main
Road which admittedly is a National Highway, near Nice Hotel, it is the
case of the prosecution that the accused had driven his lorry bearing
Registration No. TN 67 B 2934 in a rash and negligent manner and hit
against an auto bearing Registration No. TN 51 E 6690 which was coming
in the opposite direction. Owing to the collusion, the driver of the auto died
on the spot or rather was declared dead when brought to the hospital. The
two passengers in the auto were treated for injuries and within a few days,
one of the passengers also died. The other passenger, who survived had
been examined as PW-1 in the trial.
5. In this connection, the respondent, namely, Inspector of Police,
Nagoor Police Station, had registered a First Information Report in Crime
No. 12 of 2010 against the accused under Sections 279, 338 and 304-A IPC.
After investigation of the offences, a final report had been filed before the
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learned Judicial Magistrate No.II, Nagapattinam, which had been taken
cognizance as C.C.No. 256 of 2010.
6. After following due procedure, which included furnishing of
copies under Section 207 of Cr.P.C., and framing of charges under the
above Section which charges the petitioner/accused abjurred, the
prosecution being invited to substantiate the charges. The prosecution
examined PW-1 to PW-16 and also marked Exs. P-1 to P-13. On
appreciation of the evidence as stated above, the learned Judicial Magistrate
No.II, Nagapattinam, had thought it fit to convict the present petitioners for
offence under Section 279, 338 and 304A IPC and sentenced him to
undergo the imprisonment and to pay fine as aforesaid.
7. PW-1, who survived the accident and his friend, who died
owing to the accident had both got into the auto bearing Registration No.
TN 51 E 6690 at around 22.45 hours on 04.01.2010 at Nagapattinam to go
to their place of residence at South Palpannaicherry. This particular auto
was driven by Selvam @ Muruganandam, who was also a resident of that
area.
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8. It is the case of the prosecution that near Nice Hotel in Nagore
Main road, the lorry bearing registration No. TN 67 B 2934, which
according to PW-1 in his evidence was being driven at a very high speed
came in the opposite direction and dashed against the auto. The driver of
the auto and the friend of PW-1 both died. PW-1 also suffered injuries. To
drive home the case, prosecution also examined. PW-2 and PW-3, who
claimed to have either witnessed the accident or saw the accident
immediately after it occurred since they were in that particular main road at
that particular time and heard a loud noise.
9. The evidence on behalf of the prosecution with respect to the
manner in which the accident occurred primarily rested on the evidence of
PW-1, PW-2 and PW-3. Both the learned Judicial Magistrate No.II,
Nagapattinam and the District and Sessions Judge, Nagapattinam, had
accepted the versions offered by PW-1, PW-2 and PW-3 and had come to a
conclusion that the lorry driven by the petitioner herein was driven in a rash
and negligent manner and was the cause of the accident. It must also be
incidentally pointed out that the Doctor, who treated PW-1 and who
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declared the other occupant, namely, friend of PW-1 dead, had also deposed
before the Court and in the course of his evidence had stated that PW-1 had
the smell of alcohol in his breath.
10. Mr. Swami Subramaniam, learned counsel for the petitioner
herein, stated that the present revision petition has been filed questioning
concurrent finding on facts, but however chose to interpret the facts as
presented by the prosecution in a slightly different manner and stated that
the manner in which it was appreciated by both the Courts below require re-
visitation by this Court.
11. According to the learned counsel, all the three persons, namely,
PW-1 and the two deceased were friends and they had got into the auto and
the learned counsel pointed out that PW-1's breath had the smell of alcohol,
as stated by the PW-12 Doctor. It is therefore contended that there is every
possibility of the others also having been under the influence of alcohol.
The learned counsel also stated that PW-1, who was the direct eye witness
for the accident had only stated during the course of his chief examination
that the lorry was being driven in a high speed and the learned counsel
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pointed out that very significantly, the witness did not state that the lorry
was being driven in a rash or negligent manner. The learned counsel stated
that to attract the offences charged, there must be ingredients of rashness or
recklessness attached to the act said to have been committed by the
petitioner herein. The learned counsel stated that mere driving the lorry at
high speed would not attract the offences of Section 279 and 338 IPC and
therefore, urged that naturally there should be a re-visitation of the
appreciation of the evidence also for the offence charged under Section
304A IPC. The learned counsel questioned the evidence of PW-2 and PW-3
and stated that it is highly improbable that they had witnessed the accident.
As a matter of fact PW-3 had only state that he heard a loud noise and then
saw the collusion between the two vehicles. The learned counsel very
specifically pointed out that neither of the two witnesses had stated that the
lorry was being driven in a rash and negligent manner. The learned counsel
therefore urged that this Court should grant the benefit to the petitioner
herein and should not hold that the lorry was being driven in rash and
negligent manner in order to cause the accident which resulted in the death
of a two persons. The learned counsel also stated PW-13 had pointed out
that the road at that particular place was a narrow road and the learned
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counsel therefore stated that the cause of the accident cannot be imputed
solely on the petitioner herein.
12. The learned counsel further argued that the road was narrow
should be examined in conjunction with the evidence of PW-2 and PW-3,
who did not state that the lorry was being driven in a rash and negligent
manner. The evidence of PW-1 according to the learned counsel also
supported this particular fact since he had stated that lorry was being driven
only with high speed but did not state that it was driven in a rash or
negligent manner. The learned counsel also pointed out that the motor
vehicle inspector PW-6 had inspected the lorry after practically six days
and therefore, urged that this Court should reject the report filed by PW-6.
It had been finally urged by the learned counsel that the petitioner should be
exonerated all the charges.
13. In this connection, the learned counsel also relied on the
Judgment of the Hon'ble Supreme Court reported (1998) 8 SCC 493 [ State
of Karnataka Vs. Sathish] which Judgment had been subsequently
followed by two learned Single Judges of this Court in CDJ 2016 MHC
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6086 [M.Subramani Vs. State] and in 2017 SCC Online Mad 31608
[ Madasamy Vs. State].
14. In (1998) 8 SCC 493 [ State of Karnataka Vs. Sathish], the
Hon'ble Supreme Court had examined the terms negligent and rash driving
and the onus of proof required to hold that the accused actually had driven
the vehicle in a negligent and rash manner. The Hon'ble Supreme Court had
held that mere driving at a high speed would not lead to an inference that
there was negligence in driving or recklessness in driving. The Hon'ble
Supreme Court also held that there should be specific evidence to establish
both negligence and rashness in driving and also held that in the absence of
such evidence, the only natural consequence was that the accused should be
acquitted of all the charges relating to those offences. In this connection in
paragraph 4, the Hon'ble Supreme Court had held as follows:-
“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
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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”. ”
15. As stated the dictum laid down in the said Judgment had been
followed by two learned Single Judges in the Judgments referred supra.
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16. Mr. E.Raj Thilak, learned Additional Public Prosecutor on the
other hand pointed out the narrow scope of a revision petition before this
Court and stated that this Court cannot sit as an appellate Court over the
manner of appreciation of the evidence and pointed out that there can be
interference with concurrent findings of fact only when those findings are
based on no evidence or are extremely perverse to the extent that such a
conclusion cannot be reached on the evidence available before the trial
Court and with the First Appellate Court.
17. The learned Additional Public Prosecutor pointed out evidence
of PW-13, who in cross examination had stated that the road in which the
accident took place, who was a National Highway. The learned Additional
Public Prosecutor drew the attention of this Court to the mahazar prepared
with respect to the place of accident and which had been marked as Ex.P-4
during the evidence of PW-2, where it is stated that the width of the road
was nearly about 21 feet. The learned Additional Public Prosecutor also
drew attention to the rough sketch prepared by the Investigating Officer
with respect to the accident site and specifically pointed out that the
accident had occurred at the National Highway where the road is very broad
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and therefore pointed out that the accident had occurred only owing to the
manner in which the lorry was driven. It was also pointed out by the
learned Additional Public Prosecutor that the right mudguard of the lorry
had suffered damages which naturally meant that it was that portion which
had dashed against the auto and also pointed out that the auto had suffered
complete damage.
18. The learned Additional Public Prosecutor pointed out the
provision under Section 304-A IPC wherein it is stated that both rash and
negligent are not the ingredients that either being rash or being negligent, as
a result of which if the act causes death, then the person, who acted in a rash
or negligent manner would be heard culpable under Section 304A IPC. It
is the contention of the learned Additional Public Prosecutor that the
provision used the conjunction 'or' and not the conjunction 'and'.
19. The learned Additional Public Prosecutor also referred to the
evidence of PW-11, the Doctor who had conducted post-mortem over the
body of the deceased Auto driver wherein, he had very clearly stated that
the report of the forensic laboratory revealed that there was no alcohol
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within the body of the deceased auto driver. With respect to the observation
of PW-12 that PW-1's breath had smell of alcohol, the learned Additional
Public Prosecutor stated that he was not the driver of the auto. He and the
other deceased person had only boarded the auto and it was only incidental
that the auto driver belonged to the same place from where they also came
from.
20. The learned Additional Public Prosecutor pointed out that the
evidence of PW-1, PW-2 and PW-3 who all stated that the auto was driven
in the left extreme side of the road and the lorry which came in the opposite
side was driven a very high speed and dashed against the auto causing
damage to the right side of the lorry which naturally mean that the vehicle
dragged towards the auto which according to the learned Additional Public
Prosecutor was the effect of rash and negligent driving. The learned
Additional Public Prosecutor therefore stated that there cannot be any
interference of the well considered Judgments that both the learned Judicial
Magistrate No.II, Nagapattinam and the District and Sessions Judge,
Nagapattinam and urged that this Revision should be dismissed.
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21. I have carefully considered the arguments advanced and also
perused the records.
22. The facts are not in dispute. PW-1 and his friend had boarded
an auto rickshaw bearing Registration No. TN 51 E 6690 in Nagore Main
Road. When the auto neared Nice Hotel, the lorry driven by the petitioner
herein came in a high speed on the opposite side. That the lorry was driven
in a high speed had been spoken to by the witnesses and such evidence had
been accepted by both the learned trial Judge and by the learned Sessions
Judge. That as a fact cannot be now revisited by this Court. The lorry had
also suffered damages on the right side corner. That is again a fact which is
established by evidence on record. It dashed against the auto. The driver of
the auto was declared dead when brought to the hospital. There is no
evidence that he had consumed alcohol or was under the influence of any
drug. This is evident from the evidence of PW-11, who conducted the post-
mortem. Two passengers, namely, PW-1 and his friend, both suffered
injuries. The friend died subsequently. The Doctor, who examined PW-1,
stated that there was smell of alcohol in the breath PW-1. But this can
never mean that the driver of the auto was also under influence and it cannot
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certainly be presumed that he was under influence in view of the forensic
medical report which indicated that there was no alcohol within the body of
the deceased driver.
23. The only issue now to be addressed is whether the lorry was
driven in a rash or negligent manner.
24. The evidence on record show that it was certainly driven in a
high speed.
25. Mr. Swami Subramaniyam had relied on the Judgement of the
Hon'ble Supreme Court in State of Karnataka Vs. Sathish referred supra
which had been relied by two learned Single Judges in M.Subramani Vs.
State referred supra and Madasamy Vs. State referred supra. The Hon'ble
Supreme Court had very categorically stated that the evidence that the
vehicle was driven in a high speed is not sufficient to hold that it was driven
in a rash and negligent manner.
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26. I have perused the three Judgments quite carefully. One
distinct fact that stands out in the three Judgments is that in State of
Karnataka Vs. Sathish referred supra by the Hon'ble Supreme Court, the
accident took place at 8.30 a.m., when visibility through sunlight was a
definite. The accident in M.Subramani Vs. State referred supra, had taken
place at 7.00 a.m., when again visibility through sunlight is possible. The
accident in Madasamy Vs. State referred, had taken place at 3.00 p.m.,
again when visibility through sunlight was definite.
27. In all those three cases, naturally any eye witness, quite apart
from stating that the offending vehicle was being driven in a high speed
could have also very easily stated that the vehicle was being driven in a rash
or negligent manner, if it was so driven. Rashness or negligence in the
driving of a vehicle would be evident from the manner in which the vehicle
at least swerved from one end of the road to the other side and also in the
manner in which the accident had taken place, namely, to cause complete
damage to the vehicle which suffered in the accident.
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28. In the instant case, the accident took place at 10.45 p.m., in the
night. At that particular point of time, every vehicle would be running only
with their headlights on. The only aspect which could be gauged with
respect to a vehicle coming in the opposite direction is the high speed with
which it approached the other vehicle. Only the blinking of the headlights
can be seen. Nobody can gauge that the vehicle was being driven in a rash
or negligent manner. Driving a vehicle at a high speed at the night hours
under headlights itself is as an act of both negligence and rashness.
29. It is also to be noted that in this particular case, PW-1 and his
friend were passengers in an auto rickshaw. From the passengers' seat in an
auto rickshaw, the visibility of the road is very limited. Every auto is like a
triangle, broader at the back, with two wheels and narrower in front with
one wheel. The front windshield is also narrow and if the portion is
covered by the driver, a passenger at the back cannot have any direct vision
of a vehicle coming in the opposite direction particularly when it is a
vehicle being driven under headlights. A passenger can never pin pointedly
say whether the lorry which is coming in the opposite direction was being
driven rashly or negligently. He can only say it was being driven at a very
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high speed. PW-1 spoke the truth in the witness box. The other two
witnesses PW-2 and PW-3 stated that the auto which suffered the accident
in which the two deceased also travelled, one as a driver and the other as the
passenger was moving on the left side of the road. The road incidentally is,
according to PW-13, a National Highway Road. That was stated by PW-13
not in chief examination but when a question in that regard was put in cross
examination. Therefore it is the accused who had invited such an answer
from PW-13. That fact is clarified further in the mahazar which had been
prepared and in the sketch prepared and presented before the trial court, that
the road was quite a broad road of 21 feet. More than sufficient space was
available for two vehicles to cross each other without causing an accident.
When a lorry causes an accident to a very small vehicle like an auto
rickshaw which would take up only a minute space in the road, then
naturally it has to be held that the lorry was driven not only at high speed
but also in a rash and reckless manner. The vehicle in which PW-1, and the
two deceased travelled was not a large vehicle to take up the space of one
half of the road in the opposite side. It was only because of the high speed
in which the lorry was driven that the accused/driver was not able to control
the lorry and therefore dashed against the opposite vehicle. Here the
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vehicle which suffered the accident was an auto rickshaw and it is common
knowledge that the breadth of an auto is much much smaller then that of a
small four wheeler vehicle. In the front, it is quite narrow. If a lorry were
to dash against such a vehicle, the accident must have occurred only if the
driver had been driving it in a high speed coupled with rashness, negligence
and recklessness. Witness or a passenger can never speak about rash and
negligent driving when the vehicles are being driven at high speed at night
particularly when visibility is blurred by the driver owing to the small span
of the windshield in an auto and owing to the headlights of the vehicles
coming in the opposite side. Therefore that distinguishing fact in this case
has to be considered in its proper perspective.
30. In the instant case, I would hold that the vital fact is different
from the facts of the Judgments cited and the reasoning therein given would
not be applicable to the facts of the present case. Owing to the fact that the
accident occurred at night time when vehicles were driven with their
headlights on.
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31. Once this conclusion is reached, naturally, I cannot in a
revision petition, interfere with the appreciation of evidence of either the
trial Judge or the Appellate Judge unless it is shown that their evidence was
not based on any evidence at all or that they had interpreted the evidence in
an extremely perverse manner. That is not a ground taken in this case. An
accident occurred. Two persons died. The consequence of causing that
accident has to be faced by the accused.
32. In view of the above reasoning, I hold that it would be
extremely inappropriate if on the basis of the above observations the
Judgments complained in this revision are interfered.
33. Therefore, I uphold the conviction of the revision petitioner
herein.
34. With respect to the sentence imposed, it is seen that both the
Courts have correctly applied Section 71 IPC and imposed a very minimum
sentence of simple imprisonment alone for offence under Section 304A IPC
for two counts and had imposed only fine for the offence under Section 338
IPC. The sentences are extremely reasonable considering the fact that two
persons died in the accident. I uphold the sentences imposed.
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35. I would place on record my appreciation to both the learned
counsels Mr. Swami Subramaniam, who argued on behalf of the revision
petitioner and Mr. E. Raj Thilak, learned Additional Public Prosecutor.
36. This Civil Revision Petition is dismissed. Consequential steps
to be taken by the Judicial Magistrate II, Nagapattinam, immediately on
receipt of a copy of this Judgment.
05.10.2021
Index:Yes/No
Internet:Yes/No
vsg
To
1. The Inspector of Police
Nagoor Police Station
Nagapattinam District.
2. Judicial Magistrate No.II, Nagapattinam
3. District and Sessions Court, Nagapattinam
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C.V.KARTHIKEYAN, J
vsg
Crl.R.C.No. 649 of 2015
05.10.2021
https://www.mhc.tn.gov.in/judis/
