Madras High Court
Ravi vs State Through on 12 June, 2023
Crl.R.C(MD)No.21 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.06.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.21 of 2019
Ravi ... Petitioner/Appellant/Accused
Vs.
State through,
The Inspector of Police,
Nesamony Nagar Police Station,
Traffic Investigation Wing,
Nagercoil,
Kanyakumari District.
In Crime No.53 of 2005 ... Respondent/
Respondent/Complainant
PRAYER: Criminal Revision Case filed under Section 397 r/w 401 of
the Code of Criminal Procedure, to call for the records of the learned
Additional District and Sessions Judge, Kanyakumari at Nagercoil in
Crl.A.No.136 of 2006, dated 26.07.2018 confirmed the conviction
and modifying the sentence of imprisonment imposed on the
petitioner by the learned Judicial Magistrate No.III, Nagercoil in
C.C.No.111 of 2005, dated 14.06.2012.
For Petitioner : Mr.P.T.Ramesh Raja
For Respondent : Mr.K.Sanjai Gandhi
Government Advocate (Crl. Side)
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Crl.R.C(MD)No.21 of 2019
ORDER
This revision has been filed to set aside the Judgment made
in Crl.A.No.136 of 2006, dated 26.07.2018 on the file of the learned
Additional District and Sessions Judge, Kanyakumari at Nagercoil,
confirming the conviction and modifying the sentence of imprisonment
imposed on the petitioner made in C.C.No.111 of 2005, dated 14.06.2012,
on the file of the learned Judicial Magistrate No.III, Nagercoil.
2.The case of the prosecution is that on 30.04.2005 at about
08.00 pm., in Vettornimadam – Chungankdai Road when the deceased
along with his son/P.W.1 proceeded towards Parvathipuram, the petitioner
drove the Mahindra Van bearing Registration No.TN-74-Z-5506 in a rash
and negligent manner and dashed against the deceased. Therefore, he
sustained injuries on the head, right foot, right cheek, and left knee and
there were injuries all over the body and succumbed to the injuries.
Hence, the complaint.
3.On the complaint, the respondent registered the F.I.R in
Crime No.53 of 2005 for the offence under Section 304A of I.P.C. as
against the petitioner. After completion of the investigation, the
respondent filed a final report and the same has been taken cognizance by
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Crl.R.C(MD)No.21 of 2019
the trial Court in C.C.No.111 of 2005 on the file of the learned Judicial
Magistrate No.III, Nagercoil.
4.On the side of the prosecution, they had examined P.W.1 to
P.W.11 and marked Ex.P.1 to Ex.P.7 and on the side of the accused, no one
was examined and no documents were produced.
5.On perusal of the oral and documentary evidence, the trial
Court found the accused guilty for the offence punishable under Section
304(A) of I.P.C and sentenced him to undergo three months Rigorous
Imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo one
month Simple Imprisonment. Aggrieved by the same, the petitioner
preferred an appeal in Crl.A.No.136 of 2006 on the file of the learned
Additional District and Sessions Judge, Kanyakumari at Nagercoil and the
Appellate Court partly allowed the appeal confirming the conviction and
modified the sentence from three months to one month Rigorous
Imprisonment and fine amount from Rs.1,000/- to Rs.5,000/-. In other
aspects, the Judgment passed by the trial Court stands confirmed. Hence,
the present revision.
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Crl.R.C(MD)No.21 of 2019
6.The learned counsel appearing for the petitioner would
submit that the prosecution failed to prove its case beyond any doubt.
P.W.1 and P.W.2 were examined as eyewitnesses to the occurrence. They
could not be eyewitnesses to the occurrence, since they are close relatives
of the deceased. According to P.W.3, who is the son-in-law of the
deceased, also walked along with him, after getting down from the bus
and they proceeded to see the daughter of the deceased. The petitioner in
the same direction drove his van in a rash and negligent manner and
dashed against the deceased. He mainly relied upon the rough sketch
produced by the prosecution. It shows that when the deceased walking on
the thar road, the petitioner had driven the van and dashed against him
adjacent to the thar road and there is a mud road for pedestrians.
Therefore, the accident had taken place at the time of crossing the road
without noticing the van driven by the petitioner herein. Therefore, the
accident had occurred only because of the rash and negligent act of the
deceased and not due to the rash and negligent driving of the petitioner
herein. There was no tyre mark in order to prove that the van was
stopped suddenly after hitting the deceased. That apart, the deceased
person was aged about 76 years at the time of the accident and he had no
eyesight. It was also admitted by P.W.3, who is none other than the son-
in-law of the deceased. P.W.2 is none other than his neighbour. Therefore,
all are set-up witnesses and as such, the prosecution failed to prove its
case beyond any doubt. Even then, both the Courts below mechanically
convicted the petitioner.
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Crl.R.C(MD)No.21 of 2019
7.Per contra, the learned Government Advocate (Criminal
Side) appearing for the respondent would submit that in order to bring the
charge under Section 304(A) of I.P.C., the prosecution had examined P.W.
1 to P.W.11 and marked Ex.P.1 to Ex.P.7. P.W.1 to P.W.3 are eyewitnesses
to the occurrence and they categorically deposed that only because of the
rash and negligent driving of the petitioner, he had dashed against the
deceased, due to which, he sustained injuries and died. That apart, both
the Courts below concurrently held and confirmed the conviction and as
such, it does not warrant any interference by this Court.
8.Heard the learned counsel appearing on either side and
perused the materials available on record.
9.Admittedly, when P.W.1 and his father, namely the
deceased, got down from the bus and proceeded towards Paravthipuram
to his daughter's house on the road, the petitioner drove his van and
dashed against the deceased. According to the petitioner, they were
crossing the road without noticing the vehicle which was driven by the
petitioner and as such, the petitioner dashed against the deceased.
Further, P.W.2 and P.W.3 are also relatives to P.W.1. Though the place of
occurrence far away, by co-incidence P.W.2 and P.W.3 were happened to
be the eyewitnesses to the occurrence. However, they corroborate the
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Crl.R.C(MD)No.21 of 2019
evidence of P.W.1. On perusal of the rough sketch which was marked as
Ex.P.6 revealed that the deceased and P.W.1 were walking on the left side
of the road, which is a thar road and also it has pedestrian road.
Therefore, the deceased without walking on the Pedestrian along with P.W.
1, walked on the main thar road, namely Nagercoil to Thiruvanandapuram
road. Therefore, it cannot be completely ruled out only because of the
rash and negligent driving of the petitioner, the accident happened.
10.In Peter Anthony Durairaj Vs. The Inspector of
Police [Crl.R.C(MD)No.372 of 2012, dated 14.03.2013], this Court
held as follows:-
“9.The requirement of Section 304A of IPC is that
the death of any person must have been caused by the
accused by doing any rash or negligent act. In other
words, there must be proof that the rash or negligent
act of the accused was the proximate cause of the
death. There must be direct nexus between the death
of a person and the rash or negligent act of the
accused. The act causing death must be the Causa
causans and it is not enough that it may have been the
Causa Sine qua non, meaning that the death must be
the direct result of the rash and negligent act of the
accused and that act must be the proximate and
affluent cause without the intervention of another's
negligence and it must be the causa causans.
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Crl.R.C(MD)No.21 of 2019
10.It is no doubt true that the doctrine of
contributory negligence well known as a defence in the
law of torts, has no place in criminal law, though it may
minimize damages in a civil case. The fact that the
victim has also contributed a little by his negligence is
immaterial where there is ample proof that the accused
brought about the accident by his own negligent and
rash driving. In criminal juris prudence, if the victim
has also contributed to the causation of the accident by
contributory negligence and in the absence of any
material to show that only on account of rash and
negligent driving of the accused driver that the accident
occurred, it would not be permissible under such
circumstances to hold the accused driver guilty of
committing an offence Section 304A of IPC, since
contributory negligence of the victim affords as
intervening circumstances, i.e. without the intervening
circumstance the accident could not have happened.”
11.By applying the said principle to the case on hand and the
reasons discussed above, this Court is of the opinion that the prosecution
miserably failed to prove the case beyond any doubt. Without considering
the above and without an appreciation of the evidence in a proper manner,
the Courts below convicted the petitioner. Therefore, the impugned
Judgment of the conviction and sentence passed by the Courts below are
liable to be set aside.
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Crl.R.C(MD)No.21 of 2019
12.Accordingly, the Criminal Revision Case is allowed and the
Judgment made in Crl.A.No.136 of 2006, dated 26.07.2018 on the file of
the learned Additional District and Sessions Judge, Kanyakumari at
Nagercoil, confirming the conviction and modifying the sentence of
imprisonment imposed on the petitioner made in C.C.No.111 of 2005,
dated 14.06.2012, on the file of the learned Judicial Magistrate No.III,
Nagercoil, are set aside. The petitioner is acquitted. Bail bond if any
executed by the petitioner shall stand cancelled and a fine amount if paid
is ordered to be refunded to the petitioner forthwith.
12.06.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
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Crl.R.C(MD)No.21 of 2019
To
1.The Additional District and Sessions Judge,
Kanyakumari at Nagercoil.
2.The Judicial Magistrate No.III,
Nagercoil.
3.The Inspector of Police,
Nesamony Nagar Police Station,
Traffic Investigation Wing,
Nagercoil,
Kanyakumari District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.R.C(MD)No.21 of 2019
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.R.C(MD)No.21 of 2019
12.06.2023
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