Thileepan vs Kannammal
2022 Latest Caselaw 5991 Mad

                                                                                     Crl.R.C.No.544 of 2018


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 24.03.2022

                                                          CORAM

                                  THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

                                              Crl.R.C.No.544 of 2018 and
                                               Crl.M.P.No.3590 of 2022

                Thileepan                                                           ... Petitioner

                                                           Vs.

                Kannammal                                                           ... Respondent

                PRAYER: Criminal Revision Petition filed under Sections 397 r/w 401 of
                Criminal Procedure Code, to set aside the judgment passed in C.A.No.54 of
                2016 on the file of the III Additional District and Sessions Judge, Tiruppur at
                Dharapuram, dated 28.02.2018 modifying the judgment passed in C.C.No.336
                of 2009 on the file of the Judicial Magistrate No.I, Udumalpet, dated
                20.04.2016.

                                   For Petitioner     :    Mr.K.Selvakumaraswamy
                                   For Respondent     :    Mr.B.Gopalakrishnan

                                                       *****
                                                      ORDER

The respondent filed a private complaint against the petitioner/A2 and

A1 in C.C.No.336 of 2009. After ful-fledged trial, the petitioner/A2 was

convicted by the learned Judicial Magistrate No.I, Udumalpet (trial Court), vide

judgment, dated 20.04.2016 in C.C.No.336 of 2009 and sentenced to undergo 6

months Simple imprisonment and to pay a fine of Rs.1,000/-, in default, to

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Crl.R.C.No.544 of 2018

undergo 1 month Simple Imprisonment for offence under Section 279 of IPC

and also sentenced to undergo two years Simple Imprisonment and to pay a fine

of Rs.5,000/-, in default, to undergo 1 month Simple Imprisonment for offence

under Section 304(A) IPC. The trial Court acquitted A1 from the case in

C.C.No.336 of 2009. Aggrieved against the same, an appeal was preferred by

the petitioner/A2 before the learned III Additional District and Sessions Judge,

Tiruppur at Dharapuram (lower appellate Court) in C.A.No.54 of 2016. The

lower appellate Court, by judgment, dated 28.02.2018, dismissed the appeal

confirmed the conviction and sentence for offence under Section 304(A) IPC

and set aside the conviction and sentence for offence under Section 279 IPC.

As against the judgment of the lower appellate Court, dated 28.02.2018, the

present Criminal Revision Case has been filed by the petitioner/A2.

2.The gist of the case is that on 19.04.2007, at about 11.30 p.m., the

respondent's son Masilamani, who was working in Palaniyandavar Cotton Mill,

had gone out to have tea along with his maternal uncle Patteeswarn. When they

attempted to cross Udumalpet-Palani road, a white colour Indigo car bearing

registration No.TN 59 M 7636 hit the respondent's son Masilamani from the

behind. Due to which, he sustained injuries on his head, right leg, chest and

other parts of the body. Immediately, he was taken in ambulance to the https://www.mhc.tn.gov.in/judis

Crl.R.C.No.544 of 2018

Government Hospital, Udumalpet and later, shifted to Coimbatore Medical

College and Hospital, Coimbatore, where he was declared dead. After

cremation, the respondent came to know that a complaint was lodged by her

brother Patteswaran to the Inspector of Police, Udumalpet Police Station

(PW3). In the complaint, the particulars of the vehicle, its driver and the

manner in which the accident occurred were suppressed. On the compliant of

Pattesswaran, a case in Crime No.182 of 2007 (Ex.P3) was registered, for

offence under Sections 279 and 337 IPC. On getting information from the

Coimbatore Medical College and Hospital about the death of the respondent's

son Masilamani, the Inspector of Police, Udumalpet Police Station altered the

Sections to 279 and 304(A) IPC, visited the scene of occurrence, prepared

Observation Mahazar, Rough Sketch, enquired the witnesses present in the

scene of occurrence.

3.During investigation, the Inspector of Police, Udumalpet Police Station

(PW3) examined one Parameshwaran, ambulance Driver. The said

Parameshwaran in his statement recorded under Section 161 Cr.P.C., stated that

after the accident, he chased a white colour Maruthi 800 car involved in the

accident and could not see the registration number of the car. One Iqbal (PW2)

and Pandian, Auto Driver in their statement under Section 161 Cr.P.C., stated https://www.mhc.tn.gov.in/judis

Crl.R.C.No.544 of 2018

that they are eye witnesses to the accident and they saw white colour Indigo car

bearing registration No.TN 58 M 7636 involved in the accident. The other eye

witnesses Muthu and Marimuthu stated that it was white colour Maruthi car hit

the respondent's son Masilamani. Since the statements of the eye witnesses

were contradictory to each other, the Inspector of Police, Udumalpet Police

Station (PW3) unable to find out which of the car committed the accident

whether it was white colour Maruthi car or white colour Indigo car. Unable to

come to definite conclusion, an FIR in Crime No.182 of 2007 (Ex.P3) was

closed as 'Undetected' (UN) and closure report in R.C.S.No.81 of 2007 (Ex.P4)

was filed before the learned Judicial Magistrate No.I, Udumalpet on

04.11.2007. In the meanwhile, the respondent sent representations to the

Superintendent of Police, Udumalpet (Ex.P5), the Director General of Police,

Coimbatore (Ex.P7), the District Collector, Tiruppur (Ex.P6) seeking proper

investigation and justice for her son's death.

4.Two months thereafter, when she was crying near the scene of

occurrence thinking about her son's death, Iqbal (PW2) came there and

enquired her. She informed that she is helpless and nobody came forward to

disclose truth about the accident. PW2 informed her that he saw the accident

along with Pandian, Auto Driver. Despite the respondent giving particulars https://www.mhc.tn.gov.in/judis

Crl.R.C.No.544 of 2018

about the vehicle involved in the accident is white colour Indigo car, belongs to

Srimathi/A1, the petitioner's mother and the ambulance Driver was one

Chinnadurai, the Police, for the reasons best known, was not taken any proper

action against them. Hence, the respondent filed a private complaint before the

trial Court. The trial Court had taken the complaint on file, recorded the

statement of the witnesses, examined 6 witnesses as PW1 to PW6 and marked 7

documents as Exs.P1 to P7.

5.PW1 is the respondent, the mother of the deceased; PW2 is one Iqbal,

who is the eye witness to the accident; PW3 is the Inspector of Police,

Udumalpet Police Station, who conducted the investigation and closed the case

in Crime No.182 of 2007 (Ex.P3) as 'Undetected' (UN); PW4 is the wife of the

deceased; PW5 is the sister of PW1 and PW6 is the Postmortem Doctor. Ex.P1

is the Postmortem Certificate of the deceased Masilamani; Ex.P2 is his Death

Certificate, Ex.P3 is the FIR in No.182 of 2007; Ex.P4 is the closure report in

R.C.S.No.81 of 2007; Exs.P5 to P7 are representations given to the

Superintendent of Police, Udumalpet, the District Collector, Tirupur and the

Director General of Police, Coimabatore respectively. After conclusion of trial,

the petitioner was convicted and sentenced as stated above.

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Crl.R.C.No.544 of 2018

6.The learned counsel for the petitioner submitted that admittedly, the

respondent is not an eye witness to the accident, which had taken place on

19.04.2007. The only eye witness examined in this case on the side of the

respondent is PW2. PW2 admitted in his evidence that he was having tea

inside the shop nearer to the scene of occurrence, only after hearing the noise,

he came out and found the deceased Masilamani was hit by a car. He further

admitted that he made arrangement to sent him to hospital for treatment in

Ambulance. PW2 further stated that he did not make any complaint or inform

the Police about the accident. The learned counsel further submitted that after

1½ months from the date of occurrence, PW2 disclosed the vehicle number of

the car involved in the accident. The other witness Pandian, Auto Driver, who

said to have been along with PW2, was not examined as witness in this case.

All the witnesses examined by PW3, the Investigating Officer, during earlier

investigation stated that they were not sure about whether it was white colour

Maruthi car or white colour Indigo car involved in the accident. Since PW3,

the Investigating Officer unable to find out the car, which was involved in the

accident, he closed the FIR in Crime No.182 of 2007 as 'Undetected' (UN) and

filed the closure report (Ex.P4) in R.C.S.No.81 of 2007 before the learned

Judicial Magistrate No.I, Udumalpet. None of the witnesses examined either https://www.mhc.tn.gov.in/judis

Crl.R.C.No.544 of 2018

during the Police investigation or during trial Court, have identified the

petitioner was the driver of the car and he has driven the car on the date of the

accident.

7.The learned counsel for the petitioner further submitted that since the

petitioner being son of the owner of Indigo car, he is shown as accused in this

case. Initially, the complaint was given by one Patteeswaran, who is none other

than the maternal uncle of the deceased Masilamani. The said Patteeswaran

categorically stated that at the time of occurrence, he was along with the

deceased, but he was unable to give any particulars of the car involved in the

accident. Had Patteeswaran was present in the scene of occurrence, he would

have definitely disclosed the vehicle number of the car and name of the driver

in the complaint. Later as an after thought, for the purpose of motor accident

claim, the petitioner/A2 and his mother/A1 falsely implicated in this case. The

trial Court failed to consider these facts. The lower appellate Court failed to

independently consider the evidence and materials and mechanically dismissed

the appeal. He further submitted that in this case, there have been vital

contradictions in the manner of accident which had taken place on 19.04.2007.

The presence of PW2 in the scene of occurrence is highly doubtful. Hence, he

prayed for acquittal.

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Crl.R.C.No.544 of 2018

8.He further submitted that without prejudice to his contention on merits,

now compromise arrived between the parties. The petitioner voluntarily came

forward to pay a sum of Rs.5,00,000/- (Rupees five lakh only) to the family

member of the deceased Masilamani on humanitarian consideration. The

petitioner and the respondent filed the consent affidavits separately along with

Joint Compromise Memo, wherein the petitioner, respondent, wife of the

deceased and his legal heirs viz., Kanagaraj (son) and Nivetha (daughter) are

signed.

9.The learned counsel for the respondent submitted that in this case, a

pitiable mother, who was running from pillar to post seeking justice for her

son's death. On the fateful day, the deceased Masilamani had gone out to have

tea. While he was crossing Udumalpet-Palani road, the petitioner, who came in

a white colour Indigo car bearing registration No.TN 59 M 7636 in rash and

negligent manner, dashed the respondent's son Masilamani. Immediately,

PW2-Iqbal and Pandiyan, Auto Driver took steps to send the injured/deceased

to the hospital. At that time, the ambulance driver chased the car involved in

the accident. On seeing the same, the petitioner had taken away the car and

escaped from the accident spot. Thereafter, the ambulance Driver returned to https://www.mhc.tn.gov.in/judis

Crl.R.C.No.544 of 2018

the spot and took the deceased to the Government Hospital, Udumalpet. The

respondent made enquiry with the hospital authorities and found that the

ambulance driver did not provide any particulars to the hospital authorities and

even not collected transportation charge. On suspicious, the respondent made

enquiry through her brother with regard to the driver of the ambulance and

found that it was one Chinnadurai, who was the ambulance driver. During

enquiry, the said Chinnadurai gave contradictory version. The said

Chinnadurai stated that immediately after the accident, he chased the car

involved in the accident. The driver of the car requested the ambulance driver

to take injured to the hospital and he informed that he was going to the Police

Station to inform the accident. Despite the same, the Inspector of Police,

Udumalpet Police Station (PW3) not conducted proper investigation with the

said Chinnadurai. Finding that the Inspector of Police, Udumalpet Police

Station (PW3) deliberately not conducted proper investigation, the respondent

sent representations to the Superintendent of Police, the Director General of

Police and the District Collector, Tiruppur. Then to, no action taken. On the

other hand, PW3 closed the case in Crime No.182 of 2007 (Ex.P3) as

'Undetected' (UN) and filed the closure report in R.C.S.No.81 of 2007 (Ex.P4).

Hence, the respondent filed the private complaint before the learned Judicial

Magistrate No.I, Udumalpet. The trial Court took the complaint on file, issued https://www.mhc.tn.gov.in/judis

Crl.R.C.No.544 of 2018

summons to the accused and proceeded with the trial. During trial, 6 witnesses

examined as PW1 to PW6 and 7 documents marked as Exs.P1 to P7. The trial

Court, on the evidence and materials, finding that PW2 is the eye witness in this

case, who clearly identified the car involved in the accident, had convicted and

sentenced the petitioner as stated above and the same was confirmed by the

lower appellate Court. There is no infirmity or illegality to interfere with the

finding of the Courts below.

10.The learned counsel for the respondent fairly submitted that

compromise was arrived between the parties. The petitioner has come forward

to pay a compensation of Rs.5,00,000/- without prejudice to his case. The

petitioner and respondent appeared before this Court and confirmed the receipt

of Rs.5,00,000/- and the same is confirmed by the respective counsel. The

petitioner and the respondent filed the consent affidavits separately along with

Joint Compromise Memo, wherein the petitioner, respondent, wife of the

deceased and his legal heirs viz., Kanagaraj (son) and Nivetha (daughter) are

signed.

11.This Court considered the rival submissions and perused the materials

available on record.

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12.It is seen that in this case six witnesses were examined, on the side of

the prosecution, during trial. Admittedly, PW1, the mother of the victim, is not

an eye witness to the occurrence as well as the other witnesses PW4, wife of the

deceased and PW5, the sister of PW1. The only eye witness to the occurrence

is PW2. PW2 admitted that 1½ months after the accident, he saw PW1

weeping near the accident spot, he enquired her and informed that the car

number involved in the accident as TN 59 M 7636, a white colour Indigo car.

It could be seen from the evidence of PW2 that he does not give any particulars

with regard to the identity of the driver of the car bearing registration No.TN 59

M 7636. More so, in this case, no witness or document produced to

substantiate that on 19.04.2017, the petitioner drove the car bearing registration

No.TN 59 M 7636 in a rash and negligent manner and caused the accident.

13.It is to be seen that there is some confusion in the investigation

conducted by PW3 in Crime No.182 of 2007 (Ex.P3) whether it was white

colour Maruthi car or white colour Indigo car involved in the accident. From

the evidence of PW2 and PW3, the Investigating Officer, it is certain that a

white colour Indigo car involved in the accident. PW2 clearly identified the car

involved in the accident is white colour Indigo car bearing registration No.TN https://www.mhc.tn.gov.in/judis

Crl.R.C.No.544 of 2018

59 M 7636. PW1, the mother of the deceased Masilamani lost her son and

desperately seeking justice through her relatives and others and had taken all

steps to identify the white colour Indigo car bearing registration No.TN 59 M

7636. Later, the respondent found the car bearing registration No.TN 59 M

7636, which was parked in front of the house of the petitioner and the car

belongs to the petitioner's mother/A1. Thus, in this case, the involvement of

white colour Indigo car was conclusively proved. As regards the driver of the

white colour Indigo car is concerned, there is some infirmity in the evidence

adduced on the side of the prosecution and there is no conclusive proof that the

petitioner had driven the white colour Indigo car and committed the accident.

14.From the available evidence and materials, it would not be

conclusively held that the petitioner has driven the car bearing registration

No.TN 59 M 7636 on the date of occurrence.

15.Thus, by giving benefit of doubt, the petitioner is acquitted from all

the charges. The judgments of the Courts below are liable to be set aside and,

are set aside.

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Crl.R.C.No.544 of 2018

16.In the result, this Criminal Revision Case is allowed. Fine amount, if

any, paid shall be refunded. Bail bond, if any, executed shall stand cancelled.

Consequently, the connected Criminal Miscellaneous Petition is ordered.

24.03.2022 Speaking Order/Non Speaking Order Index : Yes/No Internet : Yes/No vv2

To

1.The III Additional District and Sessions Court, Tiruppur at Dharapuram.

2.The Judicial Magistrate Court No.I, Udumalpet.

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Crl.R.C.No.544 of 2018

M.NIRMAL KUMAR, J.

vv2

Crl.R.C.No.544 of 2018

24.03.2022

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