K.Raja vs The State By
2022 Latest Caselaw 9379 Mad

                                                                                  Crl.R.C.No.262 of 2018


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 27.05.2022

                                                          CORAM

                                  THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

                                     Orders Reserved On      Orders Pronounced On
                                         26.04.2022                27.05.2022

                                                Crl.R.C.No.262 of 2018


                     K.Raja                                                   ... Petitioner

                                                           Vs.

                     The State by
                     Inspector of Police,
                     Gudiattam Town Police Station,
                     Vellore District.
                     Crime No.325 of 2010                                     ... Respondent



                     PRAYER: Criminal Revision Petition filed under Sections 397 and 401 of
                     Criminal Procedure Code, to set aside the conviction and sentence imposed
                     in the judgment dated 10.10.2017 in C.A.No.6 of 2017 on the file of the
                     Principal District and Sessions Judge, Vellore dismissing the appeal against
                     conviction and sentence imposed in judgment dated 21.12.2016 made in
                     C.C.No.208 of 2010 on the file of the Judicial Magistrate, Gudiattam.



                     1/18



https://www.mhc.tn.gov.in/judis
                                                                                    Crl.R.C.No.262 of 2018




                                             For Petitioner     :     Mr.A.Thiyagarajan

                                             For Respondent     :     Mr.R.Kishore Kumar
                                                                      Government Advocate


                                                              ORDER

The petitioner/accused in C.C.No.208 of 2010 was convicted by the

learned Judicial Magistrate, Gudiattam by judgment dated 21.12.2016 for

the offence under section 279 and sentenced to undergo six months simple

imprisonment and to pay a fine of Rs.250/-, in default to undergo one month

simple imprisonment, for the offence under Section 337 IPC and sentenced

to undergo six months simple imprisonment and to pay a fine of Rs.250/-, in

default to undergo one month simple imprisonment, for the offence under

Section 471 304(A) [3 counts] and sentenced to undergo two years simple

imprisonment for each count and to pay a fine of Rs.500/- for each count, in

default to undergo one month simple imprisonment for each count and the

sentences to run concurrently. Against which, the petitioner preferred an

appeal in C.A.No.6 of 2017 before the Sessions Court. The learned

Principal District and Sessions Judge, Vellore by judgment dated

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10.10.2017 dismissed the appeal confirming the conviction and sentence of

the Trial Court, against which, the present revision petition is filed.

2.Before the Trial Court, P.W.1 to P.W.17 examined and Ex.P1 to

Ex.P14 marked. On the side of the defence, no witnesses examined and no

documents marked. On conclusion of the trial, the Trial Court convicted the

petitioner which was confirmed by the Lower Appellate Court as stated

above.

3.The gist of the case is that on 09.05.2010 at about 10.30 p.m., the

petitioner had driven the borewell lorry bearing registration No.KA-01-ME-

1516 and was proceeding in the Katpadi-Gudiyatham road from east to west

direction. While he was near the bridge in Govindapuram Division, he drove

the vehicle in a rash and negligent manner, dashed against one Selvam who

was walking on the southern side of the road towards east and he sustained

grievous injury. Thereafter, the petitioner lost balance, dashed against the

Tractor driven by one Velu with a Trailer, caused serious damage and

thereby, the driver of the Tractor Velu and one of its occupant one Ramraj

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died. P.W.1 and P.W.2, other occupants of the Tractor, of which P.W.2

sustained injury and P.W.1 lodged a complaint. The injured were taken to

the Government Hospital, Gudiyatham in 108 Ambulance where D1/Selvam

and D2/Velu pronounced dead, D3/Ramraj was referred to the Government

Hospital, Vellore and later, he succumbed to injuries. P.W.17 who received

the complaint, visited the scene of occurrence, prepared observation

mahazar, rough sketch, enquired the witnesses present, thereafter proceeded

to the Hospital conducted inquest, made arrangements for Postmortem and

sent both the vehicles, namely, Tractor and borewell lorry for motor vehicle

inspection. P.W.11/Motor Vehicle Inspector, examined both the vehicle,

given the inspection report Ex.P3 for the Tractor and Ex.P4 for the borewell

lorry. P.W.14/Doctor who conducted postmortem on the body of Selvam/D1

and Velu/D2 issued postmortem report Ex.P5 and Ex.P6. P.W.15/Doctor

who conducted postmortem on the body of Ramraj/D3, issued postmortem

certificate Ex.P7. P.W.16 is the Doctor who treated P.W.2 and issued

wound certificate Ex.P8. P.W.8 and P.W.10 are the witnesses to the

observation mahazar/Ex.P11, rough sketch/Ex.P10, they have not supported

the case of the prosecution. In this case, P.W.3 to P.W.7 though admit they

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have reached the scene of occurrence after the accident, they are in the

nature of hear say witnesses. P.W.1 and P.W.2 are the eye witnesses,

P.W.1 is the owner of the Tractor and P.W.2 is his employee. Both of them

travelled in the Tractor driven by Velu/D2 along with Ramraj/D3. The Trial

Court based on the evidence and materials produced found that the

petitioner had driven the lorry in a rash and negligent manner, dashed

against D1/Selvam and thereafter moved to the right side of the road, dashed

against the Tractor, coming on the opposite direction. Further, due to the

accident three persons died and one person sustained injury and hence, the

Trial Court convicted the petitioner which was confirmed by the Lower

Appellate Court as stated above.

4.The contention of the learned counsel for the petitioner is that the

accident took place in the main road at about 10.30 p.m. As per rough

sketch/Ex.P10 it is seen that there was no light available near the accident

spot. P.W.1 and P.W.2 are the only eye witnesses projected by the

prosecution and they have not stated that they have seen the accident with

the aid of any light. Admittedly, in this case, no light is present near the

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scene of occurrence. He further submitted that the presence of P.W.1 is

highly unbelievable. P.W.1 states that the petitioner's lorry ran over the legs

of D1/Selvam, while he was sleeping in the road and thereafter, dashed

against the Tractor. The petitioner got down from his vehicle, P.W.1

questioned him about the same is highly doubtful, further the damage to the

Tractor and the injuries sustained by D2, D3 and P.W.2, it is highly

doubtful. P.W.1 sustained not notable injuries, P.W.1 states that he made

arrangements for 108 Ambulance sending the injured to the hospital and he

was also present in the hospital, not taken any treatment is highly artificial.

P.W.1 owner of the Tractor lodged a complaint. The narration about the

accident by P.W.2 is highly doubtful, as could be seen from the wound

certificate/Ex.P8. In the wound certificate, it is recorded that P.W.2

sustained injury when he was walking on the road and there is no mention

that he travelled in the Tractor. Further, from the evidence of

P.W.16/Doctor, who treated P.W.2, it is seen that there is only laceration on

the upper chest measuring 5cmx2cm depth in lungs. P.W.16 further states

that he gave first aid to P.W.2 and referred him to the Government Hospital,

Vellore where he was given further treatment bu no certificate from

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Government Hospital, Vellore produced. P.W.16 further confirms that

P.W.2 sustained injury while he was walking and not due to fall from the

Tractor. Thus, P.W.2 not travelled in the Tractor.

5.The learned counsel further submitted that P.W.11/Motor Vehicle

Inspector, who inspected both the Tractor and the Borewell lorry given the

inspection reports, Ex.P3 and Ex.P4. In Ex.P3/Motor vehicle Inspection

report of the Tractor, it is recorded that right rear wheel disconnected and in

Ex.P4/Motor Vehicle Inspection report, it i seen that the lorry had minimum

damage only in the front right corner. It is known fact that the rear wheel of

the Tractor is huge which if disconnected, the Tractor will get toppled, due

to which the accident took place. He further submitted that the disconnected

wheel ran over the legs of D1/Selvam who was sleeping aside, in the road as

could be seen from the injury sustained in both the legs of D1, both the legs

broken and the flesh part torn apart. Further, the fall of the tyre on the head

of D1 might have caused death. To cover up all these facts, the petitioner is

shown as reason for the accident. P.W.11 admits that the Tractor was not

registered, it was plying illegally and he had not visited the scene of

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occurrence to find out the tyre marks and the real reason for the accident.

He admits that the Tractor was not in a running condition and he inspected

the vehicle in stationary condition. P.W.17 admits that he only registered

FIR and thereafter, it was one Manickam, Inspector of Police who conducted

investigation in this case. Since the said Manickam in the meanwhile passed

away P.W.17 deposed about the occurrence and investigation. On perusal

of the records, the Trial Court in the entire judgment not even adverted to the

cross examination of any of the witnesses, merely relied on the chief

examination and convicted the petitioner. The Lower Appellate Court not

independently considered the evidence and materials produced and had

mechanically dismissed the appeal.

6.The learned counsel for the petitioner fairly submitted that Ex.P3

and Ex.P4 was not confronted with P.W.11 in detail with regard to

disconnection of right rear wheel. He further submitted that on the face of

the document Ex.P3 and Ex.p4, the damage to the wheels have been

recorded which has been taken in evidence. Hence, referring to the same he

made his submissions stating that P.W.1 and P.W.2 are not the eye

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witnesses to the occurrence, the accident was due to the disconnection of

rear wheel of the Tractor which capsized the Tractor, due to which D2 and

D3 sustained injury and succumbed. Further, the disconnected wheel ran

over the legs of D1 and later he succumbed. The injury to P.W.2 happened

only while he was walking which was confirmed by P.W.16. The witnesses

to the observation mahazar and rough sketch, P.W.8 and P.W.10, not

supported the case of the prosecution. From Ex.P10/rough sketch there is

no light in the scene of occurrence and observation mahazar/Ex.P11, there is

no reference to any light. These vital facts failed to be considered by the

Courts below. Hence, he prayed for acquittal.

7.The learned counsel for the petitioner relied upon the decision of

this Court in the case of Kather Avulia vs. State rep. by Inspector of

Police, Palayamkottai Police Station, Tirunelveli District and another in

Crl.R.C.(MD).No.268 of 2006 dated 22.12.2014 and in the case of

Arunachalam vs. State in Crl.R.C.No.1028 of 2014 dated 23.03.2021 and

submit that the accused and P.W.1 and P.W.2 are totally strangers and they

have not known to each other earlier, the occurrence took place in the night,

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no test identification parade, conducted to identify the accused, three years

thereafter for the first time P.W.1 and P.W.2 identified the accused during

trial in Court, is highly unbelievable to be rejected.

8.The learned Government Advocate appearing for the respondent

submitted that in this case the bore well lorry was driven by the petitioner is

not in dispute, P.W.1 and P.W.2 clearly identified the petitioner. P.W.1

clearly states that the lorry was proceeding from east to west, on the

southern side of the road D1 was walking, the bore well lorry dashed against

him and thereafter, dashed against the Tractor in which P.W.1 and P.W.2

were travelling along with D2 and D3. Immediately, the injured were rushed

to the hospital, initially to the Government Hospital, Gudiyatham, thereafter

one of the deceased was taken to the Government Hospital, Vellore. P.W.2

referred to the Government Hospital, Vellore. P.W.1 lodged a complaint

and on receipt of the complaint, FIR registered, observation mahazar and

rough sketch prepared, statement of witnesses present in the scene of

occurrence recorded, inquest conducted on the body of D1 to D3 and sent

for postmortem. The statement of P.W.16/Doctor who treated P.W.2

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recorded, on receipt of the postmortem report, Doctor who conducted

postmortem examined and both the vehicles sent for inspection.

P.W.11/Motor Vehicle Inspector inspected the vehicle gave his report. On

completion of investigation, charge sheet filed in this case. The Trial Court

on the evidence of P.W.1 to P.W.17 and Ex.P1 and Ex.P14 rightly convicted

the petitioner which was confirmed by the Lower Appellate Court. Hence,

he prayed for dismissal of this petition.

9.Considering the submissions made and on perusal of the materials

placed before this Court, it is seen that P.W.1 lodged a complaint to the

respondent police stating that D1/Selvam was walking on the edge of the

road towards Gudiyatham and at that time, the lorry driven by the petitioner

dashed him and ran over on both legs of D1, thereafter the lorry treaded to

the right side and dashed against the Tractor which was coming on the left

side of the road and caused death of D2 and D3 and injury to P.W.1 and

P.W.2. P.W.1 states that he sustained simple lacerated injuries, hence he

had not taken treatment. The presence of P.W.1 is highly doubtful as could

be seen in his evidence. P.W.1 states that “//////ahnuh xUegh; nuhl;oy;

https://www.mhc.tn.gov.in/judis Crl.R.C.No.262 of 2018

gLj;jpUe;jth;kPJ v';fs; tz;of;F vjpnu te;j yhhp xd;W

nghh;bty; nghl cgnahfg;gLj;Jk; yhhp me;j eghpd; fhypd;

kPJ Vwptpl;lJ” which is a contradiction. Further he states that

immediately the lorry was stopped, the driver got down from the lorry,

thereafter the lorry dashed against the Tractor, due to which two persons

died and two persons injured which is highly improbable. The evidence of

P.W.2 is contrary to the evidence of P.W.1. P.W.2 states that the lorry

dashed against D1 and thereafter, dashed against the Tractor in which he

was travelling. From the wound certificate/Ex.P8 and the evidence of

P.W.16/Doctor, it is recorded that P.W.2 was walking on the road and he

never travelled in the Tractor which was confirmed by P.W.16 that the

injuries sustained by P.W.2 was only due to fall on the road and not

possible, due to the fall from the Tractor. Thus the presence of P.W.1 is

highly doubtful as well as P.W.2 travelling in the Tractor is also doubtful. It

is further confirmed by the evidence of P.W.11/Motor Vehicle Inspector who

examined the Tractor and Bore well lorry, gave Ex.P3 and Ex.P4 report. In

the Ex.P3/Inspection report of the Tractor, it is stated that the Tractor's right

rear wheel disconnect, rear housing damage, right rear wheel mudguard

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damage, right side battery box damage, front right wheel disc bend, right

rear and back left indicators damage, right/left wheel bend, trailer mount

hook cut and as regards the Trailer, front right body damage. It is a known

fact that the rear wheels of the Tractor are large and huge, the disconnection

of the wheel would naturally cause capsizing of the vehicle and that is the

reason for the damage to the Tractor and Trailer on the right side.

10.Added to it, it is seen from Ex.P4/Motor Vehicle Inspection report

of the bore well lorry, wherein it is stated that front right corner body

damage, front right indicator damage, front right wheel front mudguard

damage, front right, headlight and indicator damage, front right grill

damage, front right wind screen glass damage. The impact of capsizing of

the Tractor had caused damage to the right side of the vehicle. Had the bore

well lorry turned to the right and hit the Tractor, the impact and damage

would be much more to the lorry. From the postmortem report/Ex.P5 of

D1/Selvam, it is seen that crush injury over left leg extending upto left foot

exposing all the internal structures with the left leg bones, likewise crush

injury on the right left from middle upto the medial side of right ankle and

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crush injury over the left hind foot exposing all structures in the sole of the

foot. Further, he also sustained skull injury on the right occipital bone.

These injuries cannot happen if the lorry dash D1 from behind. Thus, the

only reason for the injury on both the legs is due to running of a tyre or hard

substance when the person is lying down and not during walking. Further,

from Ex.P10 and Ex.P11, there is no mention regarding presence of light in

the accident spot. In the observation mahazar, the width of the road is

shown as 24 feet and the accident took place almost 15 feet from the edge of

the road. Thus the possibility of the bore well lorry running over D1/Selvam

and thereafter dashing against the Tractor coming on the opposite direction

is not possible. These vital facts have lost sight and not considered by the

Courts below.

11.Further, on perusal of the postmortem report of D2/Velu which is

marked as Ex.P6 and on the evidence of P.W.14, it is seen that all the

injuries sustained by D2/Velu, Driver of the Tractor is on the right side like

right occipital bone fracture, right collar bone fracture, right forearm fracture

and other injuries. Likewise for D3/Ramraj, the postmortem

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certificate/Ex.P7 issued by P.W.15, it is seen that D3 sustained multiple

abrasions of various sizes over the right eyebrow region, right parietal region

of the scalp, right side of the face, right shoulder, etc. Both the Doctor admit

that only due to the fall from the vehicle such injuries are possible. Thus the

possibility of the Tractor getting capsized due to the disconnection of rear

wheel and getting toppled on the right side cannot be ruled out. Had the

lorry hit the Tractor on the right side, the fall will be to the left side of the

vehicle and injuries could not be as found in the postmortem report.

12.From the above, it is seen that the prosecution had miserably failed

to prove the case beyond all reasonable doubt against the petitioner. In view

of the same, this Court is inclined to set aside the conviction passed by the

Trial Court which was confirmed by the Lower Appellate Court.

13.Accordingly, the order of conviction passed by the learned Judicial

Magistrate, Gudiyatham in C.C.No.208 of 2010 dated 21.12.2016 which

was confirmed by learned Principal District and Sessions Judge, Vellore in

C.A.No.6 of 2017 dated 10.10.2017 are hereby set aside. The petitioner is

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acquitted of all the charges levelled against him.

14.In the result, this Criminal revision petition is allowed.

27.05.2022 Speaking Order/Non Speaking Order Index : Yes/No Internet : Yes/No cse

https://www.mhc.tn.gov.in/judis Crl.R.C.No.262 of 2018

To

1.The Judicial Magistrate, Gudiyatham.

2.The Principal District and Sessions Judge, Vellore.

3.The Inspector of Police, Gudiattam Town Police Station, Vellore District.

4.The Public Prosecutor, High Court, Madras.

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M.NIRMAL KUMAR, J.

cse

Pre-delivery order made in

Crl.R.C.No.262 of 2018

27.05.2022

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