Madras High Court
K.Nagarathinam vs State on 22 September, 2021
Crl.R.C.(MD)No.739 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 22.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.R.C.(MD)No.739 of 2017
K.Nagarathinam .. Petitioner
Vs.
State, Rep. by
The Inspector of Police,
Ramanathapuram Bazaar Police Station,
Ramanathapuram District.
(Crime No.318 of 2008) .. Respondent
PRAYER: This Criminal Revision Petition is filed under Section 397 r/w.
401 of the Code of Criminal Procedure, to call for the records and set aside
the conviction and sentence, dated 12.07.2017, made in C.A.No.3 of 2016,
on the file of the Principal District and Sessions Court, Ramanathapuram,
modifying the sentence awarded in C.C.No.34 of 2014 , dated 22.02.2016,
on the file of the Chief Judicial Magistrate Court, Ramanathapuram.
For Petitioner : Mr.R.Venkateswaran
For Respondent : Mr.E.Antony Sahaya Prabahar
Government Advocate
(Criminal side)
1/16
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Crl.R.C.(MD)No.739 of 2017
ORDER
The accused in C.C.No.34 of 2014, on the file of the Chief Judicial
Magistrate Court, Ramanathapuram, is the revision petitioner. The
respondent laid final report against him alleging that he had committed the
offences punishable under Sections 279 and 304-A I.P.C. By judgment
dated 22.02.2016, the trial Court convicted him under Section 304-A I.P.C.
and sentenced him to undergo simple imprisonment for three months and to
pay a fine of Rs.3,000/-, in default, to undergo simple imprisonment for two
months. Challenging, the said conviction and sentence, he filed an appeal
in C.A.No.3 of 2016 before the Principal District and Sessions Court,
Ramanathapuram. The learned Principal District and Sessions Judge,
Ramanathapuram, by judgment dated 12.07.2017, had partly allowed the
appeal, modifying the sentence imposed by the trial Court from three
months simple imprisonment to one month simple imprisonment. In all
other respects, the learned Principal District and Sessions Judge confirmed
the findings arrived at by the trial Court.
2.Challenging the said conviction and sentence, the petitioner is
before this Court with this Criminal Revision.
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Crl.R.C.(MD)No.739 of 2017
3.The case of the prosecution in brief is as follows:-
(i) The deceased Namachivayam was working as Coolie in a
lorry bearing Registration No.TN-60-1836. On 23.08.2008 near
Vanasankari Amman Kovil Street, when at the time of delivering sand, the
deceased herein gave signal to the driver to drive the lorry in reverse
direction. At that time, the lorry dashed against the said Namachivayam,
due to which, he fell down and sustained contusion on his rib. He also
sustained abrasion on his left forehead and thereby, he was admitted in
Government Hospital, Ramanathapuram, as Inpatient. P.W.12 – Arumugam,
the then Head Constable, recorded the statement given by the said
Namachivayam and after returning from the Hospital, he registered a case in
Crime No.318 of 2008 for the offences punishable under Sections 297 and
337 I.P.C. The statement given by the deceased Namachivayam was
marked as Ex.P.3 and the printed F.I.R. was marked as Ex.P.4.
(ii) After registering the case as above, on the same day, P.W.11 –
Pandian, the then Sub-Inspector of Police took the same for investigation.
He visited the scene of occurrence and in the presence of P.W.4 – Raja and
P.W.5 – Rengaraj, he prepared an Observation Mahazar under Ex.P.5. He
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Crl.R.C.(MD)No.739 of 2017
drew the Rough Sketch and the same was marked as Ex.P.6. He examined
the witnesses and recorded their statements.
(iii) In the said circumstances, on 26.08.2008 around 14.30 hours, he
received death intimation from Rajaji Government Hospital, Madurai. After
receipt of the said intimation, he rushed to the Police Station and in turn, in
the presence of Panchayatdhar and witnesses, he conducted an enquiry and
prepared an Inquest Report under Ex.P.7. He submitted an application
through P.W.12 – Arumugam to the Hospital Authorities with a request to
conduct Postmortem on the body of the deceased Namachivayam.
(iv) In turn, in view of the request made by P.W.11, P.W.10 –
Dr.Purushothaman conducted autopsy and found the following injuries on
the body of the deceased:-
''1.Abrasion 8 x 5 cms. noted on the back of right
hip.
2.Abrasion over left side forehead 5 x 4 cms.
3.Sutured wound 2 cms x 1 cm x muscle deep
noted over outer aspect of left eyebrow.
4.Two sutured drainage wounds each measuring
about 2cms x 1 cm x cavity deep noted over outer
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Crl.R.C.(MD)No.739 of 2017
aspect of both the abdomen.
5.Midline sutured surgical wound 20 cms x 2
cms x cavity deep noted over front of abdomen.''
He gave opinion that the deceased would appear to have died of blunt injury
to the abdomen and pelvis. The Postmortem report was marked as Ex.P.2.
(iii) In continuation of investigation, P.W.11 sent a requisition to the
Motor Vehicle Inspector [P.W.9] requesting to conduct inspection and issue
report whether the accident had occurred due to any mechanical defect.
(iv) In turn, after receipt of the said requisition, P.W.9 – Karuppanan,
the then Motor Vehicle Inspector, on 25.08.2008 inspected the offending
vehicle and issued a report under Ex.P.1 stating that the accident had not
occurred due to any mechanical defect.
(v) Thereafter, P.W.13 - Dhanraj, the then Inspector of Police,
continued the investigation and after collecting the Postmortem Certificate
[Ex.P.2] and the Motor Vehicle Inspector's report [Ex.P.1], he came to the
conclusion that the accused is liable to be convicted under Sections 279 and
304-A I.P.C. He filed a final report accordingly.
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Crl.R.C.(MD)No.739 of 2017
4.Based on the above materials, the trial Court tried the accused for
the offences under Sections 279 and 304-A I.P.C. The accused denied the
same. In order to prove the charges, the prosecution has examined 13
witnesses, of whom, P.W.3 – Jeyachandran, Cleaner of the lorry, is the
eyewitness.
(i) P.W.1 - Ramu, P.W.2 - Ramesh and P.W.6 - Lakshmi, who are the
brother, son and wife of the deceased respectively, gave evidence before the
trial Court as after hearing the news, they came to the Hospital and seen the
deceased.
(ii) P.W.4 – Raja and P.W.5 – Rengaraj, who are the residents of the
same locality and signed as witnesses in the Observation Mahazar [Ex.P.5],
gave evidence before the trial Court as Ex.P.5 has been prepared by the
Investigation Officer in their presence.
(iii) P.W.7 – Arivazhagan speaks that he brought the deceased to the
Hospital.
(iv) P.W.8 - Ramani claims that after hearing the news about the
accident, she came to the Hospital and seen the deceased.
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Crl.R.C.(MD)No.739 of 2017
(v) P.W.9 – Karuppanan, who is the Motor Vehicle Inspector,
inspected the offending vehicle and issued a report [Ex.P.1] as the alleged
accident had not occurred due to mechanical defect of the vehicle.
(vi) P.W.10 – Dr.Purushothaman has spoken about the autopsy
conducted on the body of the deceased.
(vii) P.W.11 – Pandian, P.W.12 – Arumugam and P.W.13 – Dhanraj,
who are Police Officers, spoken about the receipt of complaint from the
deceased, investigation and about the filing of final report.
5.When the above incriminating the materials were put to the accused
under Section 313 Cr.P.C., he denied the same as false. According to the
defence, when the lorry was proceeded in reverse gear, the deceased being
the load man, after giving wrong signal, negligently fell down and as a
result of which, the lorry ran over on him.
6.Having considered all the above materials, the trial Court found the
accused guilty under Section 304-A I.P.C. and the lower appellate Court
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Crl.R.C.(MD)No.739 of 2017
also confirmed the same. That is how the accused is before this Court with
this Criminal Revision.
7.I have heard Mr.R.Venkateswaran, learned counsel appearing for
the revision petitioner and Mr.E.Antony Sahaya Prabahar, learned
Government Advocate (Criminal side) appearing for the respondent Police.
8.The learned counsel appearing for the revision petitioner would
contend that before the trial Court in order to prove the negligent act of the
deceased, P.W.3 alone gave evidence in support of the prosecution. Though
he has supported the case of prosecution in his chief-examination, while at
the time of cross-examination, he changed his version and gave evidence as
due to the negligence of the deceased, the lorry ran over on him and
therefore, the said contradictory evidence given by P.W.3 cannot be relied
on to accept the case of prosecution. From the above facts, the learned
counsel appearing for the revision petitioner would submit that the story put
forth by the prosecution that the accident had occurred due to negligent act
on the part of the accused, is absolutely false and hence, the accused is
entitled for acquittal.
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Crl.R.C.(MD)No.739 of 2017
9.Per contra, the learned Government Advocate (Criminal side)
appearing for the respondent Police would vehemently oppose this Criminal
Revision. According to him, the cross-examination of P.W.3 was conducted
after long back from the date on which his chief-examination was recorded,
therefore, the same cannot be taken as a ground to disbelieve the case of
prosecution. He would further submit that if any necessity arises to take the
vehicle in reverse direction, it is for the accused to take much care, but in
this case, the same has not been followed by the accused, as a result of
which, the lorry ran over on the deceased. According to the learned
Government Advocate (Criminal side), the said act committed by the
accused is negligent one and thus, the conviction and sentence imposed on
him does not require any interference at the hands of this Court.
10.I have considered the rival submissions made by the learned
counsel appearing on either side and perused the materials available on
record.
11.Now, on going through the judgment rendered by the Courts
below, it appears that only by believing the evidence given by P.W.3, both
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Crl.R.C.(MD)No.739 of 2017
the Courts below came to the conclusion that the prosecution has proved its
case beyond reasonable doubt. In otherwise, in respect of validity of the
complaint given by the deceased, no endorsement has been made that the
same is not a substantial document to accept the case of prosecution.
12.In the said situation, on considering the validity of the statement
recorded by P.W.9 from the deceased, it is not in dispute that after receipt of
information from the hospital authorities, P.W.9 rushed to the Hospital and
after seeing the deceased, he recorded the statement. In the said statement,
except the deceased, none have signed as witness. Since the author of the
said document died after giving the said statement, the same can be treated
as dying declaration.
13.In this regard, the learned counsel appearing for the revision
petitioner would contend that in view of the evidence given by P.W.2 and
P.W.3, immediately after admitting the deceased in the Hospital, he
becomes unconscious, hence, it is impossible to record the statement from
the accused.
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Crl.R.C.(MD)No.739 of 2017
14.Now, on going through the said submissions, it seems that P.W.2,
in his evidence, has stated that immediately after hearing the news, he went
to the Hospital, wherein the deceased was found unconscious. P.W.3 has
also gave similar evidence. In the said circumstances, contrary to the said
evidence, P.W.11, who recorded the statement from the deceased, had
spoken about the recording of statement as, during the time of recording
statement from the deceased, he was conscious.
15.Now, on culling out the said evidence, here it is a case, the
accident register and the treatment particulars pertain to the deceased have
not been produced before the trial Court, being the reason that, the death
had occurred to the injured after two days from the date of accident.
Necessarily, there may be a chance to prepare an A.R. copy by the Doctor,
who admitted the deceased as an Inpatient. But, here is a case, the said
document has not been marked as an exhibit. Therefore, in the absence of
the said records, this Court does not find whether the deceased was in the
stage of conscious at the time of giving statement before P.W.11.
Accordingly, the complaint alleged to be given by the deceased becomes
doubtful and therefore, the same is not having any evidentiary value.
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Crl.R.C.(MD)No.739 of 2017
16.Secondly, on going through the evidence given by P.W.3, it is true
that in his chief-examination, he has narrated the occurrence as, during the
time of occurrence, the deceased alone gave signal to the accused to drive
the lorry in reverse direction. In otherwise, in his cross-examination, he
changed his version and stated before the trial Court as, the accident had
happened due to the negligent act of the deceased. After recording the said
evidence, with the leave of the Court he was treated as hostile witness.
Subsequently, during the time when he was put under cross-examination by
the learned Assistant Public Prosecutor, he had given evidence as the
averments found in the chief-examination are true. On the other hand, in
respect of the evidence given in the cross-examination, the learned Assistant
Public Prosecutor did not pose any question as to whether the same is
correct or not, thereby, the evidence given by P.W.3 in his cross-
examination particularly, before treating him as hostile witness, is the
evidence and the same can be relied on for deciding the issue raised in this
Criminal Revision.
17.As rightly pointed out by the learned counsel appearing for the
revision petitioner, P.W.3 had given clear evidence that the alleged
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Crl.R.C.(MD)No.739 of 2017
occurrence had happened due to the negligent act of the deceased. The
Courts below without analyzing the cross-examination conducted by the
learned Assistant Public Prosecutor, concluded the case that the revision
petitioner is guilty under Section 304-A I.P.C., which is erroneous in law.
18.Though due to the incident, the person has died, the accused
cannot be convicted on mere surmises and conjecture and can be convicted
only on legal evidence. The law does not permit the Court to punish the
accused on the basis of moral conviction or suspicion alone. The burden of
proof in criminal trial never shifts and the burden is always on the
prosecution to prove its case beyond all reasonable doubts on the basis of
acceptable evidence. It is a well settled principle of criminal jurisprudence
that more serious offence, the stricter is the degree of proof. In this case, the
prosecution has failed to prove its case beyond all reasonable doubts and the
Courts below without properly appreciating and analysing the evidence,
have erred in convicting the petitioner/accused.
19.In fine, this Criminal Revision is allowed and the conviction and
sentence imposed by the Courts below are set aside. The revision
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Crl.R.C.(MD)No.739 of 2017
petitioner/accused is acquitted from the charges levelled against him. Bail
bonds, if any, executed by the revision petitioner shall stand cancelled and
fine amount, if any, paid by him shall be refunded to him.
Speaking/Non-speaking order 22.09.2021
Index : Yes / No
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Crl.R.C.(MD)No.739 of 2017
To
1.The Principal District and Sessions Judge,
Ramanathapuram.
2.The Cheif Judicial Magistrate,
Ramanathapuram.
3.The Inspector of Police,
Ramanathapuram Bazaar Police Station,
Ramanathapuram District
4.The Section Officer,
Criminal Section (Records),
Madurai Bench of Madras High Court,
Madurai.
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Crl.R.C.(MD)No.739 of 2017
R.PONGIAPPAN, J.
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