Rajesh vs State By Inspector Of Police
2022 Latest Caselaw 854 Mad

                                                                                      Crl.R.C.No.247 of 2015

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 20.01.2022

                                           CORAM :
                      THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
                                                    Crl.R.C.No.247 of 2015

                Rajesh
                S/o Kupuswamy                                                                  ..
                Petitioner
                                                             Vs.

                State by Inspector of Police
                Sevvapet Police Station                                                     .. Respondent


                Prayer: Criminal Revision Case is filed under Section 397 and 401 of Cr.P.C.,
                to set aside the order dated 26.02.2015 in C.A.No.43/2013 on the file of the
                Hon'ble I - defaultal Sessions Judge, Thiruvallur, confirming the order passed by
                the Judicial Magistrate-II, Thiruvallur in C.C.No.187 of 2005 dated 19.06.2013,
                and allow this Criminal revision petition and thus render justice.

                                  For Petitioners      : Mr. R. Alvin Manoj Raj
                                                         Legal Aid Counsel for Petitioner

                                  For Respondent       : Mr.L.Arvl
                                                         Government Advocate for Respondent


                                                           ORDER

This Criminal Revision in Criminal R.C.No.247 of 2015 is filed by the

petitioner accused, aggrieved by the judgment of the Judicial Magistrate No.2

https://www.mhc.tn.gov.in/judis

Crl.R.C.No.247 of 2015

Trivallaur in CC.No.187 of 2005 dated 19.06.2013, thereby convicting the

petitioner accused of offences under Section 279 of Indian Penal Code and

imposing the punsihment of fine of Rs.750/- and in default of payment of fine

one month simple imprisonment, for an offence under Section 304-A and

imposing the punsihment of six months simple imprisonment and fine of

Rs.3000/- and in default of payment of fine, one month simple imprisonment

and the judgment of the first defaultal Sessions Judge at Trivallaur dated

26.08.2015 in Criminal No.43 of 2013, thereby confirming the conviction and

sentence imposed by the Trial Court.

2. On 09.12.2014 PW-1 appeared before the Shevapet Police Station and

lodged a complainant stating that on 08.12.2004 at 10:45 AM when his father

was walking along the Avadi to Tiruvallur CTH Road, towards Veppampattu,

the Hyundai Car bearing No.TN20M9946 was driven in a rash and negligent

manner and hit him from the back and his father Sankarayya suffered injuries

on the leg and head in the same car he was transpoted to Shri Ramchandra

Medical Hospital and he was admitted for treatment. On the said complaint a

case in Crime No.558 of 2004 was registered for the offence under Section 279

read with Section 337 of the Indian Penal Code. Subsequently, the victim

succumbed to the injuries and therefore, the case was altered as to one under

Section 304-A of the Indian Penal Code and PW-9 took up the case for https://www.mhc.tn.gov.in/judis

Crl.R.C.No.247 of 2015

investigation and laid a charge-sheet proposing the petitioner/accused guilty for

the offenses under Section 279 and 304 A of Indian Penal Code.

3. The case was taken on file as CC No.187 of 2005 on the file of the

Judicial Magistrate No.2 Trivallaur and upon summoning the accused and

furnishing the copies as per Section 207 of the Criminal Procedure Code, the

accused denied the charge and stood trial. Thereafter, the prosecution examined

PW1 to PW9 and marked Ex.A1 to A7 and rested its case. Upon being

questioned about the adverse evidence and circumstances on record under

Section 313 of the Code of Criminal Procedure the accused denied the same as

false. Thereafter, no evidence was let in on behalf of the defense. The Trial

Court therefore, proceeded to hear the Learned Assistant public prosecutor on

behalf of the prosecution and learned counsel appearing on behalf of the

accused and by a judgment dated 19.06.2013, found that evidence of PW2 to

PW5, witnessing the accident and identifying the petitioner accused as the

person who drove the vehicle, categorically proved that the Hyundai Car was

driven in high speed and hit the deceased from behind the back and from the

medical evidence on record it was clear that the deceased succumbed to the

head injuries he suffered and therefore, held the prosecution proved the offences

under Section 279 and 304 A of the Indian Penal Code beyond doubt. The Trial

Court rejected the argument of the defense that merely because an observation https://www.mhc.tn.gov.in/judis

Crl.R.C.No.247 of 2015

mahazar was not drawn in this case and merely because the Sub-Inspector of

Police who registered the FIR and the IO initially conducted the case and the

Doctor who conducted the postmortem were all not examined, the same would

not in any manner entitle the petitioner for an acquittal as the prosecution has

otherwise proved the case.

4. Aggrieved by the same the petitioner accused preferred C.A.No.43 of

2015 on the file of the first defaultal Sessions Judge at Trivallaur and by a

judgment dated 26.02.2015 after independently appraising the evidence,

considering the evidence of PW 2, 3, 4 & 5 who have clearly deposed that it was

only the petitioner who drove the vehicle and the manner of accident the vehicle

being driven by the accused in a rage and negligent manner, the accused is

guilty of the offences. The lower Appellate Court also held that it is the defense

of the petitioner accused that at the time of accident he was not driving the

vehicle and therefore, the burden of proving the said fact asserted by him lies

only on him and except for the contradictory statement of PW1 in the FIR, there

was nothing else on record to infer, that the accused had not driven the car and

therefore, rejected the defense and confirmed the conviction and sentence

imposed by the Trial Court. Aggrieved by the same the present revision is laid

before this Court.

5. Heard the learned legal Aid counsel appearing on behalf of the https://www.mhc.tn.gov.in/judis

Crl.R.C.No.247 of 2015

petitioner and the learned Government Advocate (Criminal side) on behalf of

the prosecution. The learned counsel appearing for the petitioner would submit

that the FIR being the earliest document, clearly states that it was only one

Rajesh who drove the vehicle and therefore, that arises a needle of suspicion as

to whether the petitioner drove the vehicle or not. However, to substantiate the

said defense, the person who registered the FIR was not examined, otherwise if

cross-examined the defence would have established the fact that after clearly

knowing about the fact of driving PW 1 has mentioned the name of Rajesh in

the FIR. Therefore, the accused has been put to prejudice by non-examination of

the relevant witnesses. This apart, the learned counsel would submit that the

manner of accident has to be proved by the prosecution. In this case there is no

other positive evidence as to whether or not it was the fault of the pedestrian

crossing the road and therefore, on this score also benefit of doubt is to be given

to the petitioner/accused.

6. Per Contra the learned Learned Government Advocate (criminal side)

would submit that PW 2,3,4 & 5 have categorically deposed about the manner

of accident and the manner in which the deceased was hit from behind and then

he fell on the bonnet and even the windshield of the car was broken,

cumulatively established the high speed and rashness in which the car was

driven. As a matter of fact, in the care the PW 5 also accompanied and the https://www.mhc.tn.gov.in/judis

Crl.R.C.No.247 of 2015

deceased was taken to the hospital. Therefore, the evidence of PW2 to PW5 and

the manner of impact and the dents and the windshield damage to the car, all

cumulatively and categorically establish the manner of accident and therefore it

is the petitioner who is guilty and therefore, there is nothing in this case to

interfere by this Court in the revision.

7. I have considered the rival submissions made on both sides. I have

gone through the material evidence on record. I am inclined to accept the

submission of the Learned Government Advocate (criminal side) that in the

prosecution even though certain witness were not examined because they were

not available as may having gone abroad, otherwise by the other witnesses and

the documents on record the prosecution has cogently and clearly established

the guilt of the petitioner/accused. As a matter of fact, PW 5's deposition is

categorical to the effect that it was only the petitioner/accused who drove the

vehicle. PW1 in the chief examination as well as the cross-examination has

clearly stated that because Mr. Rajesh telephoned him about the accident he

thought he was driving the car and he actually did not know who drove the car.

Therefore, the said contradiction in the FIR has been clarified by the

prosecution in the evidence. There is absolutely nothing to point out that the

petitioner accused did not drive the vehicle and therefore, his only defence fails.

This apart from the deposition of PW1 to PW5 the prosecution has proved the https://www.mhc.tn.gov.in/judis

Crl.R.C.No.247 of 2015

manner of accident and therefore one can safely hold that it was due to rash and

negligent driving of the petitioner/accused the accident happened and under

these circumstances no fault can be found and conclusion of the Trial Court as

well as the first Appellate Court and accordingly I found no infirmity in the

finding of the guilt.

8. Coming to the sentence imposed by the Trial Court considering the fact

that the accident happened in the year 2004 and at that time the

respondent/accused is aged about 32 years and now about 18 years of time have

gone and the petitioner/accused is now being aged about 50 years and since he

was not involved in any other offense thereafter, I am inclined to reduce the

sentence imposed by the Trial Court in respect of the offense under Section 304-

A from six months simple imprisonment to that of two months simple

imprisonment. The other fine amounts shall remain the same. The Criminal

Revision is partly allowed accordingly.

20.01.2022

Index : yes Speaking order nst

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Crl.R.C.No.247 of 2015

To

1.Hon'ble I - defaultal Sessions Judge, Thiruvallur.

2.The Judicial Magistrate-II, Thiruvallur.

3.The Public Prosecutor, Madras High Court.

4.The Inspector of Police Sevvapet Police Station.

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Crl.R.C.No.247 of 2015

D.BHARATHA CHAKRAVARTHY, J.

nst

Crl.R.C.No.247 of 2015

20.01.2022 https://www.mhc.tn.gov.in/judis