Madras High Court
D.Joison ... Revision vs The Inspector Of Police on 21 April, 2023
Crl.R.C(MD)No.37 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.04.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.37 of 2018
D.Joison ... Revision Petitioner/
Appellant/Accused
Vs.
The Inspector of Police,
Tiruchuli Circle,
M.Reddiapatty Police Station,
In Crime No.109 of 2010,
Virudhunagar District. ... Respondent/
Respondent/Complainant
PRAYER: Criminal Revision Case filed under Section 397 and 401 of
the Code of Criminal Procedure, to call for the records and set aside
the Judgment of the Appellate Court passed by the learned Principal
District and Sessions Judge, Virudhunagar District at Srivilliputtur in
C.A.No.137 of 2011, dated 15.11.2017, confirming the Judgment of
the learned Judicial Magistrate, Aruppukkottai, Virudhunagar District
in C.C.No.125 of 2011, dated 26.08.2011 by allowing this revision.
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Crl.R.C(MD)No.37 of 2018
For Petitioner : Mr.S.Titus
For Respondent : Mr.M.Vaikkam Karunanithi
Government Advocate (Crl. Side)
ORDER
This revision has been filed to set aside the Judgment
made in C.A.No.137 of 2011, dated 15.11.2017 on the file of the
learned Principal District and Sessions Judge, Virudhunagar District
at Srivilliputtur, confirming the conviction and sentence made in
C.C.No.125 of 2011, dated 26.08.2011 on the file of the learned
Judicial Magistrate, Aruppukkottai, Virudhunagar District.
2.The case of the prosecution is that on 26.12.2010 at
about 06.30 p.m., when the deceased was proceeding in his TVS-XL
heavy-duty two-wheeler bearing Registration No.TN-67-AY-4101 in
Aruppukottai – Sayalkudi main road from South to North after
crossing the Mandapasalai bus stop, the petitioner was driving his
Tata Saloon vehicle bearing Registration No.TN-59-AT-3400 from the
opposite direction in a rash and negligent manner and dashed
against the deceased. Therefore, he sustained grievous injuries and
died, due to the injuries sustained by him during the accident. On
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Crl.R.C(MD)No.37 of 2018
the complaint, the respondent registered the F.I.R in Crime No.109
of 2010 for the offence under Section 304(A) of I.P.C. After
completion of the investigation, the respondent filed a final report
and the same has been taken cognizance in C.C.No.125 of 2011 on
the file of the learned Judicial Magistrate, Aruppukkottai,
Virudhunagar District.
3.On the side of the prosecution, they had examined
P.W.1 to P.W.7 and marked Ex.P.1 to Ex.P.6 and on the side of the
accused, no one was examined and no documents were marked.
4.On perusal of the oral and documentary evidence, the
trial Court found the accused guilty for the offence under Section
304(A) of I.P.C and sentenced him to undergo one year Rigorous
Imprisonment and to pay a fine of Rs.2,000/-, in default, to undergo
three months Rigorous Imprisonment. Aggrieved by the same, the
petitioner preferred an appeal in C.A.No.137 of 2011 on the file of
the learned Principal District and Sessions Judge, Virudhunagar
District and the Appellate Court dismissed the appeal confirming the
conviction and sentence imposed by the trial Court. Hence, the
present revision.
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Crl.R.C(MD)No.37 of 2018
5.The learned counsel appearing for the petitioner would
submit that the prosecution did not even prove that the petitioner
only dashed against the two-wheeler, which was driven by the
deceased. The identity of the vehicle was not proved by the
prosecution. In fact, the prosecution failed to seize the vehicle which
was involved in the accident. In order to prove the accident, the
prosecution examined P.W.1 and P.W.2, who were the eyewitnesses
to the occurrence. P.W.1 and P.W.2 deposed that the petitioner had
driven his vehicle in a rash and negligent manner and hit the
deceased two-wheeler. Therefore, he sustained injuries and died.
There were contradictions between them, and in fact, the mahazar
witnesses P.W.3 and P.W.4 were turned hostile. The Doctor who
treated the victim was examined as P.W.5. However, the post-
mortem report was also not marked and the post mortem Doctor
was also not examined by the prosecution. In fact, the Investigating
Officer was also not examined by the prosecution. The prosecution
also failed to mark the rough sketch before the trial Court. All the
witnesses had deposed that when the petitioner was proceeding
from North to South in Aruppukottai – Sayalkudi main road, dashed
against the deceased two-wheeler, who was proceeding from South
to North on the same road immediately after the Mandapasalai bus
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Crl.R.C(MD)No.37 of 2018
stop. On perusal of the rough sketch shows that the accident was
taken place away from the bus stop of Mandapasalai bus stop. In
the charge-sheet, the respondent stated that after dashing against
the two-wheeler, he was dragged up to 40 feet on the same road.
When the petitioner was coming from the Northern side, it could not
be possible to drag the deceased 40 feet in the opposite direction,
namely the deceased was proceeding from the South to the North
direction. Therefore, the prosecution failed to prove its case beyond
any doubt and prayed for setting aside the conviction and sentence
imposed by the Courts below.
6.Per contra, the learned Government Advocate
(Criminal Side) would submit that P.W.1 and P.W.2 categorically
deposed about the occurrence and the accident had occurred only
due to rash and negligent driving of the petitioner herein, due to
which he sustained grievous injuries and he died. In order to
disprove the case of the prosecution, the petitioner also did not
examine anybody and he also failed to make any statement under
Section 313 of Cr.P.C. Therefore, the Courts below rightly convicted
the petitioner and it does not warrant any interference by this
Court.
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Crl.R.C(MD)No.37 of 2018
7.Heard the learned counsel appearing on either side
and perused the materials available on record.
8.The case of the prosecution is that on 26.12.2010 at
about 06.30 p.m., when the petitioner was proceeding from North to
South Aruppukottai – Sayalkudi main road, dashed against the
deceased two-wheeler, who was coming from South to North on the
same road near Madapasalai bus stop. The prosecution had
examined eyewitnesses as P.W.1 and P.W.2. On perusal of their
evidence revealed that they along with the deceased were
proceeding from Sayalkudi to Aruppukottai from the Southern side
to the Northern side, in the opposite side, the petitioner drove his
car in a rash and negligent manner against him and therefore, he
sustained injuries. Though they requested the petitioner to board
the deceased into the Hospital, he refused to board the deceased
into the Hospital. After calling upon the Ambulance, he was taken to
the Government Hospital, Aruppukkottai. Thereafter, he was taken
to Government Hospital, Madurai for higher treatment. However, he
was declared as brought dead.
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Crl.R.C(MD)No.37 of 2018
9.On perusal of the charge sheet revealed that after
hitting the deceased vehicle, the deceased was dragged along with a
two-wheeler for 40 feet. On perusal of the rough sketch, which was
not marked by the prosecution, revealed that the accident had
occurred far away from the bus stop of Mandapasalai bus stop that
too on the direction from South to North. Whereas, according to the
prosecution, the petitioner proceeded from North to South side of
Aruppukkottai to Sayalkudi main road. If the petitioner after hitting
the deceased vehicle and dragged him 40 feet, it should be towards
the Southern side, since the petitioner was proceeding from the
Northern side, whereas, the rough sketch shows as if the petitioner
was proceeding from the Southern side to the Northern side and
after hitting the two-wheeler, the petitioner dragged the deceased
along with the vehicle towards Northern side. There is absolutely no
material to charge with the allegation that the petitioner after
hitting the deceased dragged him along with his vehicle for 40 feet.
No one had spoken about the same in order to bring the said
charge. It is also pertinent to note that the prosecution failed to
mark the rough sketch. Therefore, the prosecution failed to prove
the very accident itself.
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Crl.R.C(MD)No.37 of 2018
10.In so far as the rash and negligent is concerned,
though P.W.1 and P.W.2 deposed that the petitioner was driving his
car in a rash and negligent manner, the direction of the vehicle and
also the place of the accident also differ and as such, their evidence
cannot be believed. That apart, they are close relatives of the
deceased and the prosecution failed to examine any independent
witness. According to the prosecution, the accident had occurred
near the bus stop that too evening at 06.45 p.m. Therefore, there
would have been so many persons available and even then the
prosecution failed to examine any independent witnesses. The
mahazar witnesses were also turned hostile and were examined as
P.W.3 and P.W.4.
11.The prosecution also did not mark the postmortem
report. Therefore, the prosecution failed to prove that the death was
caused only due to the injuries sustained during the accident. In
fact, the postmortem Doctor was not examined by the prosecution
to prove the death. However, the prosecution also failed to examine
the Investigating Officer, who conducted the investigation in order
to prove the case. It is very unfortunate to state the respondent
conducted a shabby investigation. Therefore, this Court condemns
the shabby investigation done by the respondent.
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Crl.R.C(MD)No.37 of 2018
12.It requires departmental proceedings as
against the Investigating Officer. Therefore, the Deputy
Inspector General of Police, Madurai is directed to take
appropriate departmental action as against the Investigating
Officer in Crime No.109 of 2010 on the file of the respondent.
If the Investigating Officer retired from service, he shall pay
a sum of Rs.1,00,000/- (Rupees One Lakh Only) as
compensation to the legal heirs of the deceased victim within
a period of eight weeks from the date of receipt of a copy of
this order. If not paid the said compensation, the legal heirs
of the deceased are at liberty to initiate appropriate
proceedings to recover the said compensation from the
Investigating Officer in the manner known to law.
13.The Investigating Officer, who visited the place of the
accident, had drawn a rough sketch. Even then, the rough sketch
was not marked and the Investigating Officer was not examined by
the prosecution. Therefore, no plausible explanation for the
non-examination of the Investigating Officer. Thus, necessary
interference has to be drawn in favour of the petitioner and
extended the benefit of the doubt on account of this serious
lapse/omission on the part of the prosecution. Unfortunately, both
the Courts below ignored the said vital fact. That apart, the
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Crl.R.C(MD)No.37 of 2018
postmortem report was not marked and in fact, the Doctor, who
conducted the postmortem, was not examined in order to prove the
cause of death due to the injuries sustained during the accident.
Therefore, the cause of death is not proved by the prosecution.
Hence, the conviction and sentence imposed on the petitioner
cannot be sustained and the same is liable to be set aside.
14.Accordingly, the Criminal Revision Case is allowed
and the Judgment made in C.A.No.137 of 2011, dated 15.11.2017
on the file of the learned Principal District and Sessions Judge,
Virudhunagar District at Srivilliputtur, confirming the Judgment
made in C.C.No.125 of 2011, dated 26.08.2011 on the file of the
learned Judicial Magistrate, Aruppukkottai, Virudhunagar District,
are set aside. The petitioner/accused is acquitted. Bail bond, if any
executed by the petitioner/accused, shall stand cancelled and the
fine amount if paid is ordered to be refunded to the
petitioner/accused forthwith.
21.04.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
ps
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Crl.R.C(MD)No.37 of 2018
To
1.The Principal District and Sessions Court,
Virudhunagar District at Srivilliputtur.
2.The Judicial Magistrate,
Aruppukkottai,
Virudhunagar District,
3.The Inspector of Police,
Tiruchuli Circle,
M.Reddiapatty Police Station,
Virudhunagar District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Copy To:-
4.The Deputy Inspector General of Police,
Madurai.
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Crl.R.C(MD)No.37 of 2018
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.R.C(MD)No.37 of 2018
21.04.2023
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