Madras High Court
P.Selvam vs State Rep.By on 4 March, 2022
Crl.RC.No.1136 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.RC.No.1136 of 2015
P.Selvam ... Petitioner
Vs.
State Rep.by
Inspector of Police
Coimbatore
Crime No.83 of 2013. ... Respondent
Prayer: Criminal Revision filed under Sections 397 and 401 of the
Code of Criminal Procedure, against the order of the District and
Sessions Judge, Coimbatore in C.A.No.143 of 2015 against the judgment
of the Judicial Magistrate No.VIII, Coimbatore in C.C.No.124 of 2013
by its order dated 27.08.2015 confirming the conviction and sentence to
imposed by the learned Judicial Magistrate Court No.VIII Coimbatore
for the offence under Sections 279 & 304(A) IPC.
1/13
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Crl.RC.No.1136 of 2015
For Petitioner : Mr.K.V.Muthuvisagan
Legal Aid Counsel
For Respondent : Mr.A.Damodaran
Additional Public Prosecutor
ORDER
This petition has been filed against the order of the District
and Sessions Judge, Coimbatore in C.A.No.143 of 2015 against the
judgment of the Judicial Magistrate No.VIII, Coimbatore in C.C.No.124
of 2013 by its order dated 27.08.2015 confirming the conviction and
sentence imposed by the learned Judicial Magistrate Court No.VIII
Coimbatore for the offence under Sections 279 & 304(A) IPC.
2. The petitioner/accused was convicted by the Judicial
Magistrate No.VIII, Coimbatore in C.C.No.124 of 2013 dated
02.06.2015 under Sections 279 & 304-A IPC and sentenced to pay a fine
of Rs.500/- for offence under Section 279 IPC, in default, to undergo
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Crl.RC.No.1136 of 2015
Simple Imprisonment for one week and sentenced to undergo one year
Simple Imprisonment and to pay a fine of Rs.3,000/-, in default to
undergo Simple Imprisonment for a period of three months for offence
under Section 304-A IPC. Against the conviction, the petitioner
preferred an appeal before the Sessions Court in C.A.No.143 of 2015
before the Principal District and Sessions Judge, Coimbatore. The
Appellate Court by the judgment dated 27.08.2015 dismissed the appeal,
confirming the conviction and sentence passed by the trial Court, against
which, the present Revision has been filed.
3. The gist of the case is that on 30.03.2013 at about 7.40
a.m PW1 was proceeding in his car near by Aravind Eye Hospital,
Coimbatore at that time, near Avinashi Road, Coimbatore, CMC
Junction, a Motor cycle was proceeding from west to east, the defacto
complainant was 50 ft behind a lorry which was coming in a rash and
negligent manner from east to west suddenly turn towards right direction
and had dashed against the two wheeler. The Driver of the two wheeler
was thrown away. The defacto complainant parked his vehicle on the
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Crl.RC.No.1136 of 2015
side of the road and went to the rescue of the injurer person. He saw the
person with head injury and blood oozing from his left ear and left eye
blackened, enquired the injured, found him to be a known person, named
Dhandapani. The said Dhandapani was riding his bike with Reg.No.TN-
38-BD-1260. The Lorry which caused the accident was bearing
Reg.No.TN-38-AR-0076. In the lorry, the name “Puthuar Amman
Thunai” was written. Thereafter, the driver's name was found as one
Selvam. Thereafter, service of 108 Ambulance service utilized, with the
help one Raghu brought the injured Dhandapani to KMCH Hospital.
PW1/Subramanian, a driver of the tourist van at that time, after dropping
his customers came to KMCH Hospital, where he was informed that the
said Dhandapani passed away at 9.30 a.m. Thereafter, they went to the
Police Station and lodged a complaint Ex.P1, the same registered at
10.00 a.m., by PW8. In this case, prosecution examined PW1 to PW9 and
marked Ex.P1 to Ex.P10. The trial Court on the evidence and materials
produced, convicted and sentenced the petitioner. The Lower Appellate
Court confirmed the conviction and sentence as stated above.
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Crl.RC.No.1136 of 2015
4. The contention of the petitioner is that the accident said to
have been taken place in a public road, main junction Coimbatore, no
public witnesses examined. Admittedly, PW1 claims to be the friend of
the deceased Dhandapani. PW2 is another friend. PW3 is the son of
deceased. All the other witnesses are close relatives to the deceased, viz.,
PW4, the brother of the deceased and PW5, another son of the deceased.
PW6 & PW7 are the observation mahazar and rough sketch witnesses.
PW8 is the Sub-Inspector of Police who registered the First Information
Report. PW9 is the Investigating Officer. He further submitted that two
eye witnesses projected are PW1 & PW2, whose evidence contradictory
to each other. PW1 states that he was behind the deceased, who was
riding his bike. After the accident, he had gone to police station lodged
the complaint. He states that one Raghu/ PW2 was known to him who
was found near the accident spot and the said Raghu took the injured
Dhandapani to the hospital. From the AR copy Ex.P6 it is seen that one
Vijay Anand is said to have taken the injured Dhandapani to the Kovai
Medical Centre and Hospital. The said Vijay Anand has not examined as
witness. He further submitted that PW1 admits that he informed the
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Crl.RC.No.1136 of 2015
Traffic Police Constable present near the signal junction about the
accident. In this case, no Traffic Police Constable was examined from the
accident spot. He further submitted that PW1 not stated anything about
the presence of Raghu in his evidence. PW2/ Raghu is the friend of PW3,
PW3 is the son of the deceased. In his evidence, he states that he was
following the two wheeler, at that time, the accident took place. PW1
does not mention anything with regard to Raghu riding bike on the scene
of the accident. PW2 states that he along with PW1 saw the injured
person. PW1 does not say anything about these aspects. PW2 further
states that he had taken the injured in Ambulance to the Government
Hospital and he does not say anything about the said Vijay Anand. In this
case, admittedly the Causality Doctor one K.Sathish Kumar of KMCH
Hospital not examined as witness. Likewise, the Post-Mortem Doctor of,
Coimbatore Medical College Hospital not examined. From the Motor
Vehicle Inspector who inspected both the two wheeler and lorry had
given his reports Ex.P8 and Ex.P9. Ex.P8 pertains to the Lorry in which
“scratch marks on the rear left outer tyre” found and recorded. From the
Motor Vehicle Inspector's report Ex.P9 for the two wheeler it is
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Crl.RC.No.1136 of 2015
mentioned that the “handle bar bend, head light assembly damaged, front
body damaged, fork bend and both side rear view mirror broken.” The
Motor vehicle Inspector's report confirms that the lorry had scratch on
left rear tyre. He further submitted that from the rough sketch Ex.P4 it is
seen that the width of the road, Avinashi from the center median is 40 ft,
the accident taken place is 25 ft away from the median. Infact that lorry
has crossed the road more than 20 ft, the accident has taken place almost
middle of the road, It was the bike which had overshot the signal and
dashed on the rear tyre of the lorry. These factors not considered by the
trial Court as well as the Lower Appellate Court.
5. The learned Additional Public Prosecutor submits that in
this case, PW1 is a natural witness, who was driving his car, seen the
accident. Immediately after the accident, went to rescue the injured
person, at that time, the injured person found to be known to him. In his
complaint, the presence of PW2 is recorded. PW1 & PW2 found injuries
on Dhandapani. PW2 took injured person to the KMCH Hospital for
further treatment, thereafter, the death was informed by death intimation
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Crl.RC.No.1136 of 2015
report Ex.P5. Thereafter, the First Information Report was registered
which was marked as Ex.P3. On registration of the First Information
Report PW9, the Sub-Inspector of Police, went to the accident spot,
prepared the observation mahazar and rough sketch, obtained signatures
from the witnesses present in the scene of occurrence, conducted inquest
and sent the body for Post-Mortem, thereafter, sent the vehicles, i.e., two
wheeler and lorry for inspection. The Motor Vehicle Inspector,
Coimbatore inspected both the vehicles given reports Ex.P8 and Ex.P9.
The Post-Mortem Doctor gave opinion that the deceased would have
appear to have died of “Multiple Injuries and its Complications.” From
the rough sketch Ex.P4 it could be seen that the lorry taken right
direction suddenly and dashed against the two wheeler. Due to which, the
deceased who was riding the two wheeler sustained injury which was
witnessed by PW1 and later died. These witnesses are not created
witnesses against the petitioner. They are natural witnesses happened to
be near the accident spot. The points raised by the petitioner already
considered by the Courts below and the same was rejected. The trial
Court as well as the Lower Appellate Court had given well reasoned
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Crl.RC.No.1136 of 2015
judgment, which needs no interference. He further submitted that the
Motor Vehicle Inspector's report and the Post-Mortem certificate marked
under Section 294(2) Cr.P.C., without any objection. Once documents
are marked under Section 294 (2) Cr.P.C., the petitioner cannot question
the veracity and authenticity of the documents now. Hence, he opposed
this petition.
6. Considering the submission and on perusal of the
materials, it is seen that PW1 & PW2 are projected as eye witnesses in
this case. PW1 states that he was proceeding 50 feet behind the bike, at
that time, the lorry from the east to west direction, in a rash and negligent
manner dashed against the motor cycle driven by Dhandapani. PW1
states that he was 50 feet behind and he does not mention about PW2,
who is said to be have followed the said Dhandapani's Bike. Further,
PW1 admits that he had informed the Traffic Police Constable present
near accident spot. In this case, no Traffic Police Constable was
examined. Thus the Traffic Police Constable present near the signal is a
right person to speak about what was the signal position at the time of
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Crl.RC.No.1136 of 2015
accident and which vehicle had over shooted the signal and caused the
accident. The signal are programmed with timings which can confirm the
timing of the signal. The pocket book maintained by the Traffic Police
Constable, would show any such accidents occurred, its time and nature
of the accident. In this case, the prosecution has failed to examine the
said Traffic Police Constable and failed to mark any such document.
Further PW2 though states that he had accompanied, the injured
Dhandapani to the Hospital, in the Accident Register Ex.P6 the name of
one Vijay Anand recorded as the person who accompanied the injured.
Strangely, the Causality Medical Doctor of KMCH Hospital not
examined as witness. Further, from the Motor Vehicle Inspector's report
Ex.P8, it is seen that except a scratch mark on the rear left outer tyre
there is no other damage found in the lorry. From the inspection of two
wheeler Ex.P9 it is seen that the handle bar bend, head light assembly
damaged, front body damaged, fork bend and both side rear view mirror
broken. The accident could not have taken place as projected by PW1 &
PW2. The evidence of PW1 & PW2 are contradictory to each other. PW1
is the friend of the deceased, PW2 is the friend of PW3 the son of the
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Crl.RC.No.1136 of 2015
deceased. In this case, no independent witnesses was examined from the
scene of occurrence. The accident happened in a public road, junction of
a signal point. PW1 & PW2 as well as the Investigating Officer admit
that the accident spot is a main road busy with public movement at
plying of vehicle. From the Post-Mortem certificate Ex.P10 it is seen that
the injuries were not on peritoneal region, but the death was due to
multiple injuries sustained by him, due to slip and fall. These vital
aspects not considered by both the trial Court as well as the Lower
Appellate Court. Thus, this Court finds that presence of PW1 & PW2 in
the scene of occurrence is highly doubtful. The Motor Vehicle
Inspector's report and Medical Post-Mortem report is helpful to the
petitioner's case, which was not considered by the Courts below.
7. In view of the same, this Court is inclined to allow the
Revision petition. This Court set asides the conviction and sentence of
the trial Court confirmed by the Lower Appellate Court. The accused is
acquitted of all charges levelled against him.
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Crl.RC.No.1136 of 2015
8. With the above direction, this Criminal Revision is
allowed.
9. This Court places its appreciation for the efforts taken and
submissions made by the Legal Aid Counsel Mr.K.V.Muthuvisagan who
had taken efforts in preparation, by perusing the original records, and
made effective submissions. Bail bond, if any, executed shall stand
cancelled. Fine amount, if any, paid shall be refunded.
04.03.2022
Index : Yes / No
Internet : Yes/No
dna
To
1.The District and Sessions Judge, Coimbatore.
2.The Judicial Magistrate No.VIII, Coimbatore.
3.The Inspector of Police
Coimbatore
Crime No.83 of 2013.
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Crl.RC.No.1136 of 2015
M.NIRMAL KUMAR, J.
dna
Crl.RC.No.1136 of 2015
04.03.2022
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Crl.RC.No.1136 of 2015
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