Madras High Court
Mr.Manikandan vs The Inspector Of Police on 11 January, 2022
Crl.R.C. No.505 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.01.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C.No.505 of 2015
Mr.Manikandan ... Petitioner
Versus
The Inspector of Police,
Valivalam Police Station,
(Crime No.12 of 2012) ... Respondent
Criminal Revision Petition filed under Section 397 and 401 of
Criminal Procedure Code, to revise the dismissal order dated 16.03.2015
passed by the Learned District and Sessions Judge, Nagapattinam in
Crl.A.No.47 of 2014 against the order dated 26.11.2014 in C.C.No.55 of
2013, on the file of the Learned Chief Judicial Magistrate, Nagapattinam.
For Petitioner : Mr.S.Arivazhagan
For Respondent : Mr.L.Baskaran,
Government Advocate (Crl.side)
ORDER
This Criminal Revision is filed by Manikandan, the petitioner/
accused in this case, aggrieved by the Judgment of the Learned Chief Judicial
Magistrate, Nagapattinam dated 26.11.2014 in C.C.No.55 of 2013, whereby
finding the accused guilty of an offence under Section 297 of Indian Penal
Code and imposing a fine of Rs.500/-, in default, to undergo one week Simple
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Imprisonment and for the offence under Section 304 (A) of Indian Penal Code
and imposing a sentence of two years Simple Imprisonment and a fine of
Rs.5,000/-, in default of payment of fine, to undergo three months Simple
Imprisonment and the Judgment of the Learned District and Sessions Judge,
Nagapattinam, dated 16.03.2015 in Crl.A.No.47 of 2014, thereby, dismissing
the appeal filed by the petitioner/accused and confirming the conviction and
sentence of the Trial Court.
2.On 18.01.2012 at about 19:15 hours, P.W.10, the Sub-Inspector
of Police, Valivalam Police Station, was on duty. Upon receipt of
information, he proceeded to Thiruvarur, TMCH, recorded the statement of
the in-patient Rengaiyan son of Srinivasan. The said Rengaiyan stated that
on 17.01.2012 at about 11.00 a.m., after purchasing Betel Nut from
Subramaniyan Maligai (in tamil) Shop, he was walking north to south, a two
wheeler bearing Registration No.TN-50-H-6860 was driven at a high-speed
and a negligent manner, hitting him in the backside and he fell down, due to
which, he got injured on the left eye-brow and he felt severe pain in his waist.
Immediately, he was taken by 108 Ambulance to the Hospital. He came to
know that it was the accused/Manikandan, who rode the said Motorbike. On
the said statement, P.W.10, registered a case in Crime No.12 of 2012, for the
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Crl.R.C. No.505 of 2015
offences under Sections 279 and 337 of Indian Penal Code. The said
deceased, Rengaiyan was thereafter shifted from Thiruvarur, to Thanjavur
Hospital. After undergoing protracted treatment, he succumbed to the injuries
on 12.02.2012. Thereafter, the case was altered into one Sections 279 and
304(A) of the Indian Penal Code and was taken up for investigation by the
Inspector of Police, P.W.13 one Raj Mohan. He completed the Investigation
and filed a final report before the Learned Chief Judicial Magistrate,
Nagapattinam, proposing the petitioner/accused guilty of the offenses, which
was taken on file as C.C.No.55 of 2013.
3.Upon issuing summons and furnishing of the copies as per
Section 207 of the Code of Criminal Procedure, the accused denied the
charges and stood trial. The prosecution examined 13 witnesses, including
P.W.1/ Gandhi, P.W.2/Thiyagarajan, who are the eye-witnesses and P.W.10/
Vijayasundram, the Sub-Inspector of Police, who registered the First
Information Report; P.W.13/ the Inspector of Police, who is the Investigation
Officer in the case. The prosecution marked the Observation Mahazar as
Ex.P-1, the statement of the deceased Rengaiyan as Ex.P-2, the First
Information Report as Ex.P-3, the rough sketch as Ex.P-4, the Motor Vehicle
Inspection Report of the Motor Vehicle Inspector as Ex.P-5, the Post-
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Mortem Report as Ex.P-6, the Inquest Report as Ex.P-7, and the Alteration
Report as Ex.P-8,. Upon being questioned about the evidence on record and
the incriminating circumstances as per Section 313 of Code of Criminal
Procedure, the accused denied the charges as false and stood trial. However,
no evidence was let in on behalf of the defence.
4.The Trial Court, thereafter, proceeded to hear the learned
Additional Public Prosecutor on behalf of the prosecution and the learned
counsel appearing on behalf of the accused and found from the evidence of
P.W.1 and P.W.2, eye-witnesses, that it is the accused who caused the
accident. From the evidence of the Motor Vehicle Inspector, it is found that
there was no mechanical defect in the vehicle. Since, P.W.1 & P.W.2 have
deposed that the vehicle was driven in a rash and negligent manner, it held
that the accident happened, on account of the rashness and negligence of the
petitioner. The Trial Court rejected the defence that merely because the day
was Kanum Pongal (in tamil) and the road was congested, the accident could
have happened on the negligence of the deceased. The Trial Court also
rejected the defence of the petitioner that the deceased/Rengaiyan was in a
drunken state and he fell down without noticing the bike, on the ground that
no such positive evidence was let in on behalf of the accused to prove the
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said facts.
5.Aggrieved by the Judgment dated 26.11.2014, the
petitioner/accused filed Crl.A.No.47 of 2014 on the file of the District and
Sessions Judge, Nagapattinam, and by Judgment dated 16.03.2015, the
Lower Appellate Court also appraising the evidence of P.W.1 and P.W.2,
found that it was the accused, who drove the motorcycle in a high-speed and
dashed against the deceased/Rengaiyan. As far as the defence of the
petitioner/accused regarding the manner of accident, the Appellate Court has
held as follows:-
"...It is also argued on the side of appellant that P.Ws
have very clearly deposed, the road which is running
Thiruthuraipoondi to Thiruvarur, is south to north. It is also
argued, the bike was coming from Thiruthuraipoondi to
Thiruvarur, it shows that naturally the bike was coming
from south to north but P.Ws say the bike was coming from
north to south. Absolutely there is no proof is available
before this court that the deceased Rengaiyan was coming
from south to north.... "
6.That apart, the Appellate Court also held that in any event, it is
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proved that it is only the accused riding the bike which has caused the said
accident, therefore, confirmed the conviction and sentence imposed by the
Trial Court. Aggrieved by the same, the present revision is laid before this
Court.
7.Heard Mr.S.Arivazhagan, the Learned Counsel for the petitioner
and Mr.L.Baskaran, learned Government Advocate (criminal side) on behalf
of the prosecution.
8.The first and foremost contention raised by the learned counsel
for the petitioner is that a reading of the evidence of P.W.1, P.W.2,
P.W.10/the Sub-Inspector of Police, P.W.13/ the Inspector of Police and the
rough sketch, would make it clear that the road was running from north to
south. Thiruvarur, is on the northern side and Thiruthuraipoondi is on the
southern side. The deceased had stated in his statement that he was walking
north to south that is from the side of Thiruvarur, road towards the side of
Thiruthuraipoondi, after getting betel nut from Subramaniyan’s Maligai
Shop. The said statement can also be clarified from item No.11, which is
shown as the shop of Subramaniyan in the rough sketch. As per the First
Information Report, and the charge sheet, the specific case of the prosecution
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is that the petitioner/ accused rode the two wheeler from Thiruvarur, to
Thiruthuraipoondi, and hit the deceased from the backside. However, the
eyewitnesses P.W.1 and P.W.2, on whose evidence, the petitioner was
convicted, have deposed to the contrary, therefore, the prosecution has
miserably failed to prove the accident. It is his further submission that in the
rough sketch, willfully and wantonly the existence of TASMAC shop is not
noted. Further, the timing of the drawal of rough sketch is also under
contradiction and therefore the rough sketch itself loses its evidentiary value.
He would further submit that there has been contradiction in the evidence of
the observation mahazar witnesses also. P.W.8, the second observation
mahazar, witness has deposed that nobody else signed, when he signed. He
would submit that when all these defences have been raised categorically by
the accused, the Trial Court did not even take them up for consideration and
dealt with only the convenient points, while reasoning of the Appellate Court
is absolutely erroneous and requires interference by this Court in exercise of
the powers of revisional jurisdiction, as the erroneous conviction has led to a
serious miscarriage of justice for the petitioner/accused.
9.Opposing the said submissions, Mr.L.Baskaran, learned
Government Advocate (criminal side) appearing on behalf of the prosecution
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would submit that in this case, the prosecution has proved the offence beyond
any reasonable doubt, in as much as, the medical evidence viz., the post-
mortem report clearly states that the victim succumbed to the injuries
sustained in the accident. The statement of the deceased/victim, which is also
marked as a document, has clearly stated that he was walking from north to
south only and that the charge laid in the final report and P.W.13/the
Investigation Officer has also spoken in tune with the statement of the
deceased/victim and therefore, notwithstanding the contradictory statement of
P.W.1 and P.W.2 the accident stood proved.
10.This apart, merely because, there is some confusion for the
eyewitnesses while deposing, the same would not enure to the benefit of the
accused and he would submit that the Lower Appellate Court rightly held that
in any event, the accident happened only because of the rash and negligent
driving of the petitioner/accused. The petitioner/accused has rightly been
convicted. He would further submit that the day of accident being a Kanum
Pongal day, everybody is aware of the fact that there will be a number of
pedestrians walking all along every road and when there is number of persons
walking along in the road, the accused should have taken care especially,
considering the festive mood and should have been careful enough while
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driving to avoid the accident. The very fact that he has hit the deceased from
the back and the deceased fell down in the opposite direction and had an
external injury on the left hand side eye-brow would itself demonstrate the
high-speed and rashness in which the vehicle was driven and therefore, he
would submit that no case is made out by the petitioner/accused before this
Court so as to interfere in exercise of power of revisional jurisdiction.
11.I have considered the rival submissions made on behalf of either
side and I have perused the material evidence on record.
12.I am fully in agreement with the Learned Counsel appearing on
behalf of the petitioner/accused that it is the bounden duty of the prosecution
to prove that the accident happened in a particular manner of accident as
charged by it. In this case, the conviction by the Trial Court as well as the
First Appellate Court is primarily based on the evidence of the eyewitness
namely P.W.1 and P.W.2. The charge of the prosecution is that the accused
was driving the vehicle in a rash and negligent manner and proceeding from
the direction of Thiruvarur, towards Thiruthuraipoondi that is north to south
and hit the deceased from the rear side. However, P.W.1 and P.W.2 have in
their cross-examination deposed as follows:-
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"P.W.1: jpUj;Jiwg;g{z;o nuhL tlf;F
bjw;F nuhL vd;why; rupjhd;/
jpUj;Jiwg;g{z;oapy; ,Ue;J jpUthU:u; nehf;fp
igf; te;jJ vd;why; rupjhd;////"
"P.W.2: jpUj;Jiwg;g{z;oapy; ,Ue;J
jpUthU:u; nuhL bjd; tly; nuhL vd;why;
rupjhd;/ igf; jpUj;Jiwg;g{zo
; apy; ,Ue;J
jpUthU:u; nehf;fpjhd;; te;jJ vd;why; rupjhd;///"
As matter of fact, P.W.10 in his cross-examination has admitted as
follows:-
"...rk;gt ,lkhdJ bjd; tly; nuhL vd;why;
rupjhd;///"
P.W.13/the Investigating Officer has deposed in his cross-
examination as follows:-
"...g[fhu; thf;FK:yj;jpd;go fhak; gl;ltu;
tlf;fpypUe;J bjw;F nehf;fp te;jhu; vd;why;
rupjhd;/ tlf;fpypUe;J jpUthU:upy; ,Ue;J
jpUj;Jiwg{z;o nehf;fp te;Jf;bfhz;oUe;jjJ
vd;why; rupjhd; ///"
Therefore, in this case, there are contradiction even with regard to
the very basic and primary fact as to from which direction the bike was ridden
by the petitioner/accused, therefore that makes the entire case of the
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Crl.R.C. No.505 of 2015
prosecution, vulnerable to grave doubt.
13.The Trial Court simply swept aside this argument of the defence
and did not consider this aspect at all. Whereas the First Appellate Court as
extracted above had given two reasonings: Firstly, it rejects the defence of
the accused by stating that there is no evidence that the deceased/Rengaiyan
was walking from south to north which is absolutely illogical. The second
conclusion is that in any event, it is only the accused, who was involved in the
accident and it is only the bike driven by the accused as caused the accident
is again incorrect. Then the defence of the accused that the manner of
accident would have happened on account of the mistake of the deceased also
cannot be ruled out. In that view of the matter, since the Trial Court and the
First Appellate Court have grievously erred in a material point regarding the
offence, this Court has no other option than to interfere with the findings of
the Trial Court and the First Appellate Court.
14.This apart, there was one more point which was let in on behalf
the defence ie., the day was Kanum Pongal day. The accident took place near
a TASMAC shop. Even though the TASMAC shop was very near to the
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place of occurrence, it was wilfully not shown in the observation sketch.
When P.W.1, P.W.2, P.W.3, P.W.10 and P.W.13, were questioned, they all
admitted the above fact in their cross-examination. However, the Trial Court
rejected the contention of the possibility of the victim being in a drunken
mood, and only on the ground that there was no positive evidence which was
let in on behalf of the accused. In this regard, other important circumstances,
which were overlooked by the Trial Court as well as the First Appellate Court
is that the accident took place on 17.01.2012. Immediately, thereafter, the
deceased was taken to the Thiruvarur, Hospital. Thereafter, he was taken for
higher treatment to Thanjavur, where he died on 1st February succumbing to
the injuries. Since he died so many days after the accident, obviously the
Viscera was not subjected to test as to its contents. But, whether the victim
was in an inebriated condition or not would have been noted in the accident
report and the Doctor, who gave the immediate treatment, would be the
competent person, to depose about the same. It is the prosecution that did not
produce any of the records namely the accident report nor the examination
report of the doctor, who gave treatment immediately on the date of the
accident. Therefore, this is one of the important circumstances, which also
goes in favour of the accused raising a probable defence. Therefore, on this
score also the petitioner/accused is entitled for benefit of doubt and the Trial
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Court and the First Appellate Court did not consider this issue also in a
proper perspective.
15.In view of the same, this Criminal Revision is allowed. The
Judgment of the Learned Chief Judicial Magistrate, Nagapattinam dated
26.11.2014 in C.C.No.55 of 2013 and the Judgment of the Learned District
and Sessions Judge, Nagapattinam in Crl.A.No.47 of 2014 dated 16.03.2015
are set aside. The accused is acquitted of the offences giving him the benefit
of doubt. Fine amount if any paid by the accused is directed to be refunded to
him.
11.01.2022
Index : yes
Internet :yes
Speaking order
klt
D.BHARATHA CHAKRAVARTHY, J.
klt
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Crl.R.C. No.505 of 2015
To
1.The District Sessions Judge, Nagapattinam.
2.The Chief Judicial Magistrate, Nagapattinam.
3.The Inspector of Police, Valivalam Police Station.
Crl.R.C.No.505 of 2015
11.01.2022
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