Madras High Court
Subburam : Revision vs State Rep. By on 2 September, 2021
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.09.2021
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.R.C(MD)No.89 of 2018
Subburam : Revision Petitioner/
Appellant/Accused
Vs.
State rep. by
The Inspector of Police,
Dindigul Taluk Police Station,
Dindigul District.
(Crime No.288 of 2005) : Respondent/Respondent/
Complainant
Prayer: Criminal Revision has been filed under section
397 r/w 401 of Criminal Procedure Code, against the judgment,
dated 20.07.2017 made in Crl.A No.43 of 2016 on the file of the
Additional Sessions Judge, Dindigul, confirming the conviction and
sentence imposed by the Judicial Magistrate No.1, Dindigul, in CC
No.669 of 2005, dated 20.09.2016.
For Petitioner : Mr.J.Lawrance
For Respondent : Mr.RMS.Sethuraman
Counsel for State (Crl. Side)
https://www.mhc.tn.gov.in/judis/
2
JUDGMENT
This Criminal Revision is directed against the judgment,
dated 20.07.2017 made in Crl.A No.43 of 2016 on the file of the
Additional Sessions Judge, Dindigul, confirming the conviction and
sentence imposed by the Judicial Magistrate No.1, Dindigul, in CC
No.669 of 2005, dated 20.09.2016.
2.The case of the prosecution is that on 17.04.2005, the
accused drove the Mahendra Van TN-55-A-0611 on Dindigul-
Batlagundu Road and when he was attempted to overtake the Bus
TN-57-D-1819, dashed against the bus, thereby caused simple
injuries, grievous injuries and death of two persons. The Inspector
of Police, attached to Taluk Police Station, Dindigul has filed a final
report against the accused examining the witnesses.
3.The trial court on proper appreciation of the entire
materials on record both oral and documentary, convicted the
petitioner and sentenced him to undergo 3 months Rigorous
Imprisonment under section 279 IPC; total fine of Rs.4,800/- for the
offence under section 337 (16 counts) of IPC, in default each two
weeks Simple Imprisonment; each 3 months Rigorous
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Imprisonment under section 338 (12 Counts) of IPC and 6 months
Rigorous Imprisonment with fine of Rs.1,000/- for the offence under
section 304(A) (2 counts) of IPC. Aggrieved by the judgment of the
trial court, the petitioner preferred appeal before the First
Appellate Court and the First Appellate Court confirmed the
findings of the trial court. Aggrieved by the concurrent findings of
both the Courts below, the petitioner is before this Court with this
revision.
4.The learned counsel for the petitioner/accused
submitted that the prosecution has failed to establish the
ingredients required for all the offences with which he stood
charged and convicted him for the said offences and none of the
witnesses have spoken that the accused has driven the vehicle
either rashly or negligently and there is no specific allegation of
negligence as against the accused in driving the vehicle and the eye
witnesses are interested witnesses and the prosecution has failed to
prove the case beyond reasonable doubt and the accused is entitled
to acquittal and prays that the criminal revision may be allowed.
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5.On the other hand, the learned Standing Counsel
(Criminal side) appearing for the respondent/State submitted that
both the courts below appreciated the evidence in a proper manner
and believed the evidence of the eye witnesses and having regard
to the nature of the offences, convicted the petitioner for rash and
negligent driving of the vehicle and passed proper sentence, which
does not require any interference by this Court and the accused is
not entitled for acquittal and prays that the Criminal Revision may
be dismissed.
6.Heard both sides and perused the materials available on
record.
7.The main contention raised on the side of the
petitioner/accused is that there was no evidence for rash and
negligent driving of the accused and when there was no evidence
for rash and negligent driving on the part of the accused, the
accused is entitled to the benefit of acquittal. For that, the learned
counsel appearing for the submitted the decisions reported in
(2019)4 MLJ (Crl.) 508 (J.Pugalendhi Vs. State) and (2020) 1
MLJ (Crl.) 406 ( Saravanan Vs. State).
https://www.mhc.tn.gov.in/judis/
8.In this case, PW1 is the complainant and he gave Ex.P1
complaint. PW1 in his complaint stated that on 17.04.2005 at 17.00
hours, he proceeded to Dindigul and when he reached Krishna
Wrapper Company, at that time, the accused over took a
Government Bus and drove his vehicle in a rash and negligent
manner and dashed against his vehicle and due to it, he and several
persons in the offending vehicle sustained injuries and two persons
died on the spot and he was taken to the Hospital and then, he gave
Ex.P1 complaint to the police.
9.PW1 during his evidence stated that on 17.04.2005 at
4.55 pm, he proceeded towards Dindigul and when he reached
Kuttyappatti Krishna Wrapper Company, at that time, the accused
over took the Government bus and dashed against his vehicle and
he and several persons in the offending vehicle sustained injuries
and two persons died and he was taken to the Hospital and then, he
gave the complaint statement to the police. PW1 has not stated
during his evidence that the accused drove his vehicle in a rash and
negligent manner.
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10.In this case, PW2, PW4 to PW8, PW13 to PW17 are
injured. But they turned hostile and did not support the case of the
prosecution. PW9 to PW11 are the injured, who travelled in the
offending vehicle. PW9 to PW11 deposed that on 17.04.2005, they
travelled in the offending vehicle and when the Van reached near
Krishna Wrapper Company, at that time, one RMTC private bus and
one Palani Murugan Private bus, came in the opposite direction and
the Van dashed against the Palani Murugan private bus. PW9 to
PW11 have not stated during their evidence that the accused over
took the Government bus and drove his vehicle in a rash and
negligent manner and dashed against the private bus. PW9 during
his cross examination stated that only after hearing the sound, he
came to understand that there was an accident. Hence, it reveals
that he has not seen the occurrence. There is contradiction in the
evidence of PW1, PW9 to PW11 in respect of the occurrence.
11.PW22 is the Conductor of the Palani Murugan private
bus. PW22 deposed that on the date of the occurrence, he was
working as Conductor in the above private bus and when their bus
reached Krishna Wrapper Company, one Government bus came and
the accused drove his vehicle in a speedy manner and dashed
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against their bus and due to it, PW1 and several persons in the Van
sustained injuries and two persons died on the spot and he and
PW1 gave complaint before the police station. PW22 has not stated
during his evidence that the accused over took the Government bus
and dashed against their bus. PW22 during his cross examination
stated that at the time of accident, he was in the back side. Hence,
there is no chance for him to see the occurrence. PW22 has not
specifically stated that the accused drove his vehicle in a rash and
negligent manner.
12.In this case, it is admitted that except PW1, all other
injured and the deceased persons travelled in the offending vehicle.
But except PW1, no other persons travelled in the private bus
sustained injuries. The main contention of the petitioner/accused is
that only after getting signal to overtake the Government Bus, the
accused overtook the Government bus. To disprove it, no steps
were taken on the side of the prosecution to examine the driver or
the passengers travelled in the Government bus. The driver of the
Government bus is the material witness. Further, no persons nearby
the place of occurrence were examined on the side of the
prosecution. They are the material witnesses to speak about the
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occurrence. Hence, the non-examination of material witnesses is
fatal to the prosecution. Further, PW1 during his evidence stated
that only after he was admitted in the hospital, police came and
recorded his statement. But PW22 stated during his evidence that
he and PW1 went to the police station and gave the complaint.
Hence, there are contradictions in respect of giving the complaint.
Hence, it creates doubt about the genuineness of Ex.P1 complaint.
Further, in this case, there was no evidence of rash and negligent
driving on the part of the accused. When there was no evidence for
rash and negligent driving, the accused is entitled to acquittal.
13.It is mainly argued on the side of the
petitioner/accused that the oral evidence of the prosecution
witnesses was not proved the rash and negligent driving of the
accused and there are contradictions between the oral evidence of
the prosecution witnesses and there can be no general presumption
that a person should have driven a vehicle in a rash and negligent
manner, merely because there was an accident.
14.At this juncture, it is relevant to refer the decision of
this Court reported in 2017-1-LW.(Crl.)160 (M.Subramani Vs.
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State rep. 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
respondent was driving the truck at a "high
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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 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
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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 held
as under:
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“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.”
15.On coming to the instant case on hand, the prosecution
witnesses have not stated that the accident occurred due to the
rash and negligent driving of the accused. For all the reasons
stated above, this court is of the considered view that the
prosecution has not proved the case beyond reasonable doubt.
16.In the result, this Criminal Revision is allowed. The
impugned judgment of conviction and sentence are set aside. The
revision petitioner/accused is acquitted of the charges levelled
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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.
02.09.2021
Index:Yes/No
Internet:Yes/No
er
Note :
In view of the present lock down
owing to COVID-19 pandemic, a
web copy of the order may be
utilized for official purposes, but,
ensuring that the copy of the
order that is presented is the
correct copy, shall be the
responsibility of the advocate/
litigant concerned.
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T.KRISHNAVALLI,J
er
To,
1.The Inspector of Police,
Dindigul Taluk Police Station,
Dindigul District.
2.The Additional Sessions Judge,
Dindigul.
3.The Judicial Magistrate No.1,
Dindigul
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
Crl.R.C(MD)No.89 of 2018
02.09.2021
https://www.mhc.tn.gov.in/judis/
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