Madras High Court
R.Perumal : Revision vs The State Rep. By on 3 September, 2021
Crl.R.C.(MD)No.872 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.R.C.(MD)No.872 of 2017
R.Perumal : Revision Petitioner/Appellant
/Accused
Vs.
The State rep. by
The Inspector of Police,
Tirunelveli Taluk Police Station,
Tirunelveli. : Revision Respondent/Respondent
Complainant
PRAYER: The Criminal Revision Petition is filed under Section 397 r/w 401
of the Code of Criminal Procedure, to call for the records pertaining to the
judgment, dated 20.09.2017 in C.A.No.34/2017 on the file of the learned
IV-Additional District Court, Tirunelveli confirming the conviction and
sentence made in C.C.No.352/2014, dated 09.04.2017 on the file of the learned
Judicial Magistrate No.3, Tirunelveli and set aside the same by allowing this
Revision and pass such further or other orders.
For Petitioner : Mr.C.Jeganathan
For Respondent : Mr.E.Antony Sahaya Prabhakar
Counsel for Government of
Tamil Nadu (Crl.side)
1/15
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Crl.R.C.(MD)No.872 of 2017
ORDER
Aggrieved over the concurrent findings, dated 20.09.2017 made in
C.A.No. 34/2017, on the file of the IV Additional District Court, Tirunelveli
and in C.C.No.352/2017, dated 09.04.2017 on the file of Judicial Magistrate
No.3, Tirunelveli, the petitioner, who is the appellant in the above referred
appeal, is before this Court by filing this Criminal Revision Case to check the
correctness of the judgments rendered by the Courts below.
2. The revision petitioner herein is the sole accused in C.C.No.352
of 2017 on the file of Judicial Magistrate Court No.3, Tirunelveli. Before the
said Court the petitioner herein tried for the offences punishable under Sections
279, 337(5 counts), 338 and 304(A) of IPC.
3. After full-fledged trial, the learned trial Judge found the
revision petitioner guilty for the offences under Sections 279, 337 (5
counts), 338 and 304(A) of IPC and accordingly, convicted and sentenced
him as follows:-
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Crl.R.C.(MD)No.872 of 2017
Accused Section Sentence
Sole accused/ 337 (5 counts) Imposed a fine of Rs.500/- each, in default to
Revision IPC undergo Simple Imprisonment for 1 month.
Petitioner
338 of IPC Imposed a fine of Rs.1000/-, in default to
undergo Simple Imprisonment for 2 months.
304(A) of IPC Convicted and sentenced to undergo Simple
imprisonment for a period of two years and to
pay a fine of Rs.5,000/-, in default, to undergo
Simple imprisonment for a period of three
months.
4. Challenging the said conviction and sentence, the revision
petitioner preferred an appeal in C.A.No.352/2017 before the IV Additional
District Court, Tirunelveli, wherein, the learned IV Additional District Judge,
Tirunelveli, affirmed the findings arrived at by the trial Court and dismissed the
appeal. Aggrieved over the same, the petitioner is before this Court with the
present Criminal Revision Case.
5. The case of the prosecution in brief is as follows:-
(i) P.W.1-Mallika is the mother of P.W.2-Tina Esther. They are
residing in K.Kailasampuram, Thoothukudi. The deceased Packiyam, P.W.3-
Chellathai, P.W.4-Savariyammal, P.W.5-Arulmani and P.W.6-
Mariyakeerthiyal, are also residing in the same Village. On 01.06.2014, around
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Crl.R.C.(MD)No.872 of 2017
14.30 hours, all the injured persons and the deceased, in order to attend the
marriage, travelled in an auto bearing Registration No.TN-69-AK-9748, while
at the time, the revision petitioner herein, being the owner of the said auto,
drove the vehicle in a high speed and also in a rash and negligent manner and as
a result of which, the auto was got upset. Due to the same, P.W.1 to P.W.6 and
the deceased sustained injuries and afterwards, all are admitted in the hospital
for taking treatment. In the hospital P.W.10-Aasmi gave treatment to P.W1 to
P.W.6.
(ii) Thereafter, after receipt of an intimation from the hospital,
P.W.9-Ganesan, the then Special Sub-Inspector of Police, went to the hospital
and recorded the statement from P.W.1 under Ex.P1. Subsequent to that, upon
the said complaint, he registered a case against the accused in Crime No.169 of
2014 under Sections 279 and 337 of IPC. The printed FIR was marked as
Ex.P4. Immediately, after the registration of the case, the Sub-Inspector,
Vijayalakshmi took the case for investigation and visited the scene of
occurrence and in the presence of Jayakumar and P.W.7-Kumar, she prepared
an Observation Mahazar under Ex.P14. She drawn the Rough Sketch and the
same has been marked as Ex.P15. She examined the witnesses and recorded
their statements.
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Crl.R.C.(MD)No.872 of 2017
(iii) In continuation of investigation, she arrested the accused on
03.06.2014 and sent him to remand. In the mean time, on 07.06.2014 around
4.30 a.m., in spite of necessary treatment given to the injured Packiyam, she
died in the hospital. Hence, after receipt of the death intimation, the Section of
law has been altered from under Sections 279 and 337 of IPC to Sections 279,
337 (5 counts), 338 and 304 (A) of IPC. She conducted an inquest and
prepared an inquest report under Ex.P16. After completing the process of
inquest, she sent a requisition to the Doctor for conducting postmortem over the
dead body of the deceased Packiyam.
(iv) In turn, after receipt of the requisition given by the said
Vijayalakshmi, P.W.12-Kaveri Mahalakshmi conducted the postmortem and
issued a Postmortem Report under Ex.P13, wherein, she has stated that the
deceased would appear to have died due to the multiple injuries sustained in the
alleged accident.
(v) In continuation of investigation, P.W.13-Gurunathan, the then
Inspector of Police, Tirunelveli Taluk Police Station, recovered the vehicle and
sent the same to the Motor Vehicle Inspector with requisition to inspect and
verify whether any mechanical defect is the reason for an accident. In turn, the
Motor Vehicle Inspector inspected the vehicle and issued a report under Ex.P12
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Crl.R.C.(MD)No.872 of 2017
with an opinion that the accident had not occurred due to the mechanical defect
of an offending vehicle. He examined the Doctor, who conducted postmortem
and the doctor giving treatment to the injured, recorded his statement.
(vi) After concluding the investigation, he came to the positive
conclusion that the appellant is liable to be convicted for the offences under
Sections 279, 337, 338 and 304 (A) of IPC. He filed a final report accordingly
6. From the above materials, the trial Court examined the accused in
terms of Sections 251 of Cr.P.C., for which, the accused pleaded not guilty.
Hence, in order to prove their case, on the side of the prosecution, 13 witnesses
have been examined as P.W.1 to P.W.13 and 16 documents were marked as
Ex.P1 to Ex.P16.
(i) Out of the said witnesses, P.W.1-Mallika is the defacto
complainant and P.W.2-Tina Esther, P.W.3-Chellathai, P.W.4-Savariyammal,
P.W.5-Arulmani and P.W.6-Mariyakeerthiyal are all injured, who sustained
injury in an alleged accident. On a careful reading of the evidence given by
them before the trial Court, it is seen that during the time of occurrence, the
revision petitioner drove the auto in a high speed and due to the said reason, the
auto got upset and resultantly, all are sustained injuries. Further, death would
occur to one Packiyam.
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Crl.R.C.(MD)No.872 of 2017
(ii) P.W.7-Kumar, though he has cited as a witness attested in an
Observation Mahazar, he has not stated anything about the Observation
Mahazar. Hence, he was treated as a hostile witness.
(iii) P.W.8-Ganesan is a Grade II Police Constable. He identified the
dead body to the doctor for conducting postmortem.
(iv) P.W.9-Ganesan, the then Special Sub-Inspector of Police,
speaks about the receipt of information from the hospital in respect to the
accident, recording of statement from P.W.1 and other things.
(v) P.W.10-Dr.Ashmi attached with Government Hospital,
Tirunelveli, speaks about the treatment given to P.W.1 to P.W.6. According to
her, P.W.4 sustained grievous injuries and others i.e., P.W.1 to P.W.3, P.W.5
and P.W.6 sustained simple injuries. The copy of the Accident Register issued
by the doctor (P.W.10) in respect to P.Ws.1 to 6 are marked as Ex.P5 to
Ex.P11.
(vi) P.W.11-Sasi, the Motor Vehicle Inspector, speaks about the
details in respect to the inspection made on the offending vehicle.
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Crl.R.C.(MD)No.872 of 2017
(vii) P.W.12-Kaveri Mahalakshmi, attached with the Government
Hospital, Tirunelveli, speaks about the details in respect to the postmortem
conducted over the dead body of the deceased Packiyam.
(viii) P.W.13-Gurunathan, the then Inspector of Police, speaks about
the details of investigation and about filing of the final report.
7. When the above incriminating materials were put to the accused
under Section 313 Cr.P.C., the accused denied the same as false. However, he
did not chose to examine any witness nor mark any document on his side.
8. Having considered all the above materials placed before him and
after considering the arguments advanced by the learned counsels appearing on
either side, the learned Judicial Magistrate No.3, Tirunelveli convicted and
sentenced the revision petitioner as stated above. Further, in the appeal
preferred by the accused in C.A.No.34 of 2017, the learned IV-Additional
District Court, Tirunelveli affirmed the findings arrived at by the trial Court and
dismissed the appeal.
9. I have heard Mr.C.Jeganathan, learned counsel appearing for the
revision petitioner and Mr.E.Antony Sahaya Prabahar, learned Government
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Crl.R.C.(MD)No.872 of 2017
Advocate (Crl.side) appearing for the respondent. I have also perused the
records carefully.
10. The first and foremost contention raised by the learned counsel
appearing for the revision petitioner is that the witnesses examined on the side
of the prosecution as occurrence witnesses did not say about the rash and
negligent act of accused and therefore, the same would be sufficient to hold that
the prosecution has not proved their case beyond reasonable doubt and
therefore, the judgment rendered by the Courts below is liable to be set aside.
11. He would further contend that during the relevant point of time
after seeing the lorry, which is came from opposite direction in a negligent
manner, with a view to avoid the collusion between the said lorry and the auto,
the driver of the auto, who is the accused herein, diverted the auto in a mud
portion and thereafter, unfortunately, the auto got upset. In the said
circumstances, it cannot be said the revision petitioner negligently drove the
vehicle and committed an offence.
12. On the other hand, the learned Government Advocate (Crl.side)
appearing for the respondent would contend that the evidence given by the
injured witnesses is sufficient to hold that during the time of occurrence the
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Crl.R.C.(MD)No.872 of 2017
revision petitioner drove his vehicle in a rash and negligent manner and caused
the accident. According to him, interference of this Court in the findings
arrived at by the trial Court does not require.
13. I have considered the rival submissions made by the counsels
appearing on either side.
14. Initially, on going through the evidence given by P.Ws.1 to 3, it
seems that all of them are categorically stated that during the relevant point of
time, the revision petitioner drove the auto in a high speed and as a result of
which, the auto got up-set. At this juncture, it would relevant to see the
judgment of our Hon'ble Apex Court in State of Karnataka vs. Satish reported
in 1998 (8) SCC 493, wherein, our Hon'ble Apex Court has 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 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
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Crl.R.C.(MD)No.872 of 2017
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. Accordingly, in view of the said principles laid down by our
Hon'ble Apex Court, herein also we cannot held driving the vehicle in a high
speed alone is not sufficient to convict the accused under Section 304(A) of
IPC.
16. In this occasion, the stand taken by the defence is that during the
time when the auto proceeded in a single road, a sand lorry came in a opposite
direction and after seeing the said lorry to avoid the collision between the lorry
and the auto, the accused herein turned his auto to the mud portion and only
because of the said reason, the auto got up-set and the accident had happened.
17. Now, on considering the said submission in the light of the
relevant records, it is seen that the injured witnesses, who have travelled in the
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Crl.R.C.(MD)No.872 of 2017
auto, did not gave evidence to the effect that at the time of occurrence, a lorry
was coming from opposite direction and in turn, in order to avoid collision, the
present accused turned his auto in a mud portion. In this regard, at the time of
questioning under Section 313 Cr.P.C., the accused has not stated anything
about the situation, during which, only by compulsion, he turned the vehicle to
the mud road. Therefore, in the absence of any materials in support of his
claim, arguing as above, cannot be accepted.
18. In otherwise, all the injured while at the time of giving evidence
as P.Ws.1 to 6 gave a similar evidence that there was a sand on the both side of
the road and on the other hand, at the time of accident, the accused herein,
drove the auto in a rash manner and as a result of which, the level has stumbled
and collapsed. Here it is a case, during the time of occurrence, the accused not
only drove the vehicle in a high speed, indeed, after knowing the fact that there
was a sand found on the both side of the road, he drove the vehicle in a high
speed after picking up 7 passengers in a single road and committed this offence.
Therefore, the said act committed by the accused is a different one from the
Satish case as rightly pointed out by the learned Government Advocate
(Crl.side) appearing for the respondent.
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Crl.R.C.(MD)No.872 of 2017
19. Accordingly, in the light of the above discussions, I am of the
considered opinion that at the time of occurrence, the appellant herein drove the
auto in a negligent manner and turned to the mud portion and therefore, the
auto got up-set and therefore, the said act is termed as negligent act. Therefore,
this Court is of the opinion that the findings arrived at by the Courts below is
with full of reasons and found correct.
20. In this occasion, the learned counsel appearing for the revision
petitioner would contend that in respect to the alleged accident, the revision
petitioner herein is facing the trial for the past 7 years from the year 2014 and
therefore, it should be necessary to show some leniency in awarding
punishment.
21. Now, on considering said submission made by the revision
petitioner, it is true that the alleged accident had happened on 01.06.2014 and
thereafter, till now, the revision petitioner is before the Judicial forum and
facing this case. Hence, considering the said situation, it would be appropriate
to modify the sentence already awarded to the revision petitioner under Secion
304(A) of IPC. Accordingly, the sentence awarded under Section 304(A) of
IPC is reduced to three months and the revision petitioner is convicted and
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Crl.R.C.(MD)No.872 of 2017
sentenced to undergo Simple Imprisonment for three months for the offence
under Section 304(A) of IPC. It is also directed that the period of sentence
already undergone by the revision petitioner shall be given set off, as required
under Section 428 Cr.P.C. In otherwise, the fine amounts imposed under
Sections 337 (5) counts, 338 I.P.C and 304(A) of IPC are all confirmed. The
trial Court is directed to take steps to secure the custody of the accused and
make him to undergo the remaning period of the sentence.
22. Accordingly, in view of the above modification, the Criminal
Revision Case is disposed of.
Index : Yes/No
Internet : Yes/No
am 03.09.2021
To
1.The Inspector of Police,
Tirunelveli Taluk Police Station,
Tirunelveli District.
2.The learned IV-Additional District Court,
Tirunelveli.
3.The learned Judicial Magistrate No.3,
Tirunelveli.
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Crl.R.C.(MD)No.872 of 2017
R.PONGIAPPAN,J.
Am
Crl.R.C.(MD)No.872 of 2017
03.09.2021
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