Madras High Court

Ameed Basha vs State Represented By on 28 September, 2021

                                                                                 Crl.R.C.No.1 of 2019




                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      Dated : 28.09.2021
                                                          CORAM:
                                   THE HONOURABLE MR. JUSTICE P.VELMURUGAN
                                                     Crl.R.C.No.1 of 2019

                     Ameed Basha                                                       ...Petitioner


                                                              Vs.


                     State represented by
                     The Inspector of Police,
                     J-3, Traffic Investigating Wing,
                     Guindy, Chennai – 600 032.                                      ...Respondent



                                  Criminal Revision case filed under Section 397 r/w 401 of Code of
                     Criminal Procedure to set aside the judgment dated 07.09.2018 in
                     C.A.No.47 of 2018 passed by the learned Principal and Sessions Judge, City
                     Civil Court, Chennai, and the judgment of the trial Court in C.C.No.4407 of
                     2012 dated 17.01.2018 passed by the learned IV Metropolitan Magistrate,
                     Saidapet, Chennai, and acquit the petitioner.




                     1/11


https://www.mhc.tn.gov.in/judis
                                                                                      Crl.R.C.No.1 of 2019




                                              For Petitioner    : Mr.R.Sankarasubbu

                                              For Respondent : Mr.S.Sugendran
                                                               Govt. Advocate (Crl.Side)
                                                            --------


                                                               ORDER

The criminal revision has been filed against the concurrent judgment

of conviction dated 07.09.2018 in C.A.No.47 of 2018 passed by the learned

Principal and Sessions Judge, City Civil Court, Chennai, confirming the

judgment of the trial Court in C.C.No.4407 of 2012 dated 17.01.2018

passed by the learned IV Metropolitan Magistrate, Saidapet, Chennai,

2 A case was registered by the respondent police against the

petitioner/accused for the offence under Section 279 & 304(A) of IPC and

Section 3 r/w 181 of Motor Vehicles Act. After investigation, the

respondent police filed a final report before the learned IV Metropolitan

Magistrate, Saidapet, Chennai, which was taken on file in C.C.No.4407 of

2012.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1 of 2019

3 Before the trial Court, in order to prove the case of the

prosecution, P.W.1 to P.W8 were examined and Ex.P1 to Ex.P11 were

marked and on the side of the accused no one was examined and no

document was marked. No material object was produced by prosecution.

4 The learned Magistrate, after trial found the accused guilty for

the offence under Sections 279 & 304 (A) and also Section 3 r/w 181 of

Motor Vehicles Act and convicted him and sentenced him to undergo

simple imprisonment for a period of six months for the offence under

Section 279 IPC, sentenced to undergo simple imprisonment for a period of

two years for the offence under Section 304(A) IPC and sentenced him to

undergo simple imprisonment for a period of three months for the offence

under Section 3 r/w 181 of Motor Vehicles Act and ordered the sentence to

run concurrently.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1 of 2019

5 Aggrieved against the same, the petitioner/accused had

preferred an appeal in C.A.No.47 of 2018 before the learned Principal

District and Sessions Judge, Chennai. The learned Sessions Judge, after

hearing the arguments advanced by the counsel on either side, by judgment

dated 07.09.2018, dismissed the appeal and confirmed the conviction and

sentence passed by the learned Magistrate.

6 Assailing the concurrent judgment of conviction and sentence

passed by the Courts below, the accused has preferred this present criminal

revision before this Court.

7 Case of the prosecution is that on 16.06.2012 at 1.20 p.m. at

Madhavan Street, Velacherry, the petitioner/accused drove a car bearing

registration No.TN-07/B-3767 from west to east, in a rash and negligent

manner and dashed against the motorcycle bearing Registration No.TN-

04/AA-3607, which was coming from south to west opposite to Victoria

Towers, Velacherry Main Road and due to the said hit, the motorcyclist

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1 of 2019

Jainulabudin sustained grievous injuries on his left leg knee and ankle and

he was taken to Government Royapettah Hospital and died on the way.

Hence the petitioner/accused was charge sheeted for the offence under

Sections 279 & 304(A) of IPC and also Section 3 r/w 181 of Motor

Vehicles Act.

8 The learned counsel for the petitioner would submit that

P.Ws.3 and 7 are stated to be the eye witnesses to the occurrence, whereas,

P.W.3 turned hostile and did not support the case of the prosecution. P.W.7

in his evidence has stated that the offending vehicle came near by

Madhavan Street and the deceased came opposite side and the driver of the

offending vehicle dashed against the two wheeler, which was driven by the

deceased and the deceased was thrown away in front of his Car, but, in the

cross examination, P.W.7 has stated that he has not seen the offending

vehicle dashing the deceased and after dashing only he seen the deceased

sustained grievous injuries and was struggling for his survival.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1 of 2019

8.1 The learned counsel further contended that P.W.7 has not

stated that the petitioner drove the vehicle in a rash and negligent manner.

Even as per the Ex.P10/Rough Sketch, the occurrence could not have taken

place as projected by the prosecution. In order to extract money by way of

compensation, the present case has been registered against the petitioner.

None of the witnesses has identified the petitioner and stated that he only

drove the vehicle in a rash and negligent manner. Therefore benefits of

doubt could have been extended to the petitioner/accused. Both the Courts

below had failed to consider the above facts, and erroneously convicted the

accused, which warrants interference.

9 The learned Government Advocate (Crl.Side) would submit

that P.W.7 who is the eye witness to the occurrence had clearly stated that

the accused drove the offending vehicle and dashed against the Motor

Cycle, which was driven by the deceased, due to which, the deceased

thrown away and fell down in front of the Car driven by P.W.7. Ex.P10

Rough Sketch would clearly corroborate with the evidence of P.W.7

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1 of 2019

regarding the manner in which the occurrence has taken place. The accused

only drove the vehicle in a rash and negligent manner and caused the

accident. Hence both the Courts below had rightly came to the conclusion

that the accused found guilty of offence punishable under Sections 279 and

304 (A) IPC.

10 Heard the learned Counsel for the petitioner and the learned

Government Advocate (Crl.Side) appearing for the respondent police and

perused the materials available on record.

11 This Court, while exercising revisional jurisdiction, cannot

exercise power of the Appellate Court and this Court, being a revisional

Court, cannot sit in the arm chair of appellate Court and it has no power to

re-assess the evidence and substitute its views on findings of fact. Further,

while deciding the revision, it can only see whether there is any perversity

in appreciation of evidence by the Courts below.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1 of 2019

12 A careful perusal of the records would go to show that P.Ws.3

and 7 are stated to be the eye witness to the occurrence. It is seen that

evidence of P.W.3 does not support the case of the prosecution and P.W.3

turned hostile. P.W.7, who stated to be the other eye witness, has not stated

anywhere that he has seen the petitioner/accused drove the vehicle in a rash

and negligent manner and dashed against the deceased. To convict a person

for the offence under Section 304(A), prosecution has to prove the fact the

accused drove the vehicle in a rash and negligent manner and caused the

accident, due to which, a person died. The trial Court has failed to see that

the main ingredients of Section 304(A) has not been attracted from the

evidence of the prosecution witnesses. Section 304(A) of IPC reads as

follows:

304(A)Causing death by negligence —

Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1 of 2019

13 In the case on hand, no witnesses of the prosecution has stated

that the petitioner/accused drove the vehicle in a rash and negligent manner

and caused the accident. In order to impose criminal liability on the accused,

it must be found as a fact that collusion was entirely or mainly due to the

rashness or negligence. In the absence of the same, the conviction recorded

against the petitioner/accused is found to be perverse. The lower appellate

Court also has not properly re-appreciated the evidence of the prosecution

witnesses and simply endorsed the view of the learned trial Judge.