Madras High Court
Devaraj vs The State Of Tamil Nadu on 20 June, 2023
CRL.R.C.(MD).No.60 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.06.2023
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.R.C.(MD).No.60 of 2019
Devaraj ... Petitioner
Vs.
The State of Tamil Nadu,
Rep. By the Inspector of Police,
Kanyakumari Police Station,
Crime No.756 of 2007,
through the Public Prosecutor ... Respondent
PRAYER : Criminal Revision Case filed under Section 397 r/w. 401 of
Cr.P.C to call for the records relating to the order dated 11.06.2018 in Crl.
A. No.29 of 2011 on the file of the Additional District and Sessions
Judge (Fast Track Court) Kanniyakumari at Nagercoil confirming the
order dated 22.02.2011 in C.C.No.6 of 2008 on the file of the Judicial
Magistrate No.1, Nagercoil, Kanyakumari District, set aside the same.
For Petitioner : Mr.R.Anand
For Mr.S.Xavier Rajni
For Respondent : Mr.Vaikkam Karunanithi
Government Advocate (Crl. Side)
ORDER
This revision has been preferred as against the Judgment passed in
Crl. A. No.29 of 2011 on the file of the Additional District and Sessions
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CRL.R.C.(MD).No.60 of 2019
Judge (Fast Track Court) Kanniyakumari at Nagercoil, dated 11.06.2018,
confirming the conviction and sentence imposed in C.C.No.6 of 2008 on
the file of the Judicial Magistrate No.I, Nagercoil, Kanyakumari District,
dated 22.02.2011.
2.The case of the prosecution is that on 27.11.2007 at about 10
a.m., from Kottaram – Nagercoil Main Road, the first deceased drove his
Maruti Car bearing registration No.TN-74-F-3364 towards Nagercoil
along with his mother and his sister. When his car reached
Mantharamputhoor, a bus belongs to Tamil Nadu State Transport
Corporation bearing registration No.TN-74-N-0441 driven by the
petitioner in the opposite direction in a rash and negligent manner and
dashed against Maruti car. Thereafter, the car was dragged and pushed
down in the water channel. Therefore, three persons who travelled in the
car, sustained grievous injury and died by sinking into water channel. On
complaint, the respondent police has registered the FIR. After completion
of investigation, the same was taken on file on the side of the prosecution
in order to prove the charges.
3.The prosecution had examined P.W.1 to P.W.14 and marked
Exs.P.1 to P.12 and on the side of the accused, no one was examined and
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CRL.R.C.(MD).No.60 of 2019
photographs were marked as Ex.D.1.
4.On perusal of the oral and documentary evidence, the trial Court
found the petitioner guilty for the offence punishable under Section 304A
(3 counts) and sentenced him to undergo one year rigorous imprisonment
on each count. Aggrieved by the same, the petitioner preferred an appeal
in Crl.A. No.29 of 2011 on the file of the learned Additional District and
Sessions Judge (Fast Track Court), Kanyakumari at Nagercoil and the
Appellate Court also dismissed the same confirming the order of the trial
Court. Hence, the present Revision.
5.The learned counsel for the petitioner would submit that Ex.D1
categorically proved that the bus was driven by the petitioner on extreme
left hand side in the place of accident. Whereas the deceased has driven
the car in a rash and negligent manner and that too in the turning point
without even seeing the bus, which was coming in opposite direction, hit
the right hand side of the bus and thereafter, rolled down and fell down in
the water channel. Therefore, the driver of the car and also other
passengers died. In fact one of the deceased died due to drowning. The
Motor Vehicle Inspector also categorically deposed that the right hand
side of the bus got damaged, which shows that the bus was driven by the
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CRL.R.C.(MD).No.60 of 2019
driver on the left side and the car was driven only in the rash and
negligent manner. Therefore, the prosecution failed to prove that the
petitioner drove the bus in a rash and negligent manner. No passenger
who were travelled in the bus, was not examined by the prosecution to
corroborate the evidence of P.W.1, P.W.2 and P.W.3 who were examined
as eye witnesses. P.W.1 and P.W.2 are close relatives of the deceased.
P.W.3 and P.W.10 who are coming behind the car by bicycle, deposed that
when the car was driven by one of the deceased in front of their vehicle,
the petitioner drove the bus in a rash and negligent manner and hit the
car. Therefore, the car was dragged to water channel and three persons
sustained grievous injuries and died. In fact they deposed that the bodies
from the car were taken at about 02.15 p.m. Whereas the accident was
occurred at about 10.00 a.m. The photographs were produced showing
that the right hand side of the bus got damaged and to safeguard the
passengers who travelled in the bus, the petitioner suddenly turned the
bus in the extreme left side and also to avoid hit of the car. Unfortunately
the car had fallen down in the water channel and due to which, three
persons died. The Courts below has mechanically convicted the
petitioner for the offence under Section 304A IPC.
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CRL.R.C.(MD).No.60 of 2019
6.Per contra the learned Government Advocate for the respondent
would submit that in order to prove the charge under Section 304A of
IPC, the prosecution has examined P.W.1 to P.W.14 and marked Ex.P.1 to
Ex.P.12. P.W.1 to 3 and P.W.10 are witnesses and they categorically
deposed that only because of rash and negligent driving of the petitioner,
the accident had occurred and due to which, three persons died on the
spot. Both the Courts below concurrently held that the petitioner is liable
to be punished under Section 304A of IPC and therefore, nothing
warrants by this Court to interfere in the concurrent decision of the Court
below.
7.Heard the learned counsel appearing on either side and perused
the materials available on record.
8.The only point in this case is that whether the prosecution proved
the negligence on the part of the petitioner. On 27.11.2007 at about 10.00
a.m., when the petitioner driven his bus belong to the Tamil Nadu State
Transport Corporation bearing registration No.TN-74-N-0441 from
Nagercoil to Kanyakumari road at Mantharamputhoor, one of the
deceased, who had driven the Maruti car bearing Registration No.TN-74-
F-3364 along with other two deceased, hit the bus and due to the impact,
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CRL.R.C.(MD).No.60 of 2019
the car also rolled down and fell into the water channel and drowned. In
fact one of the deceased died due to drowning. The Doctor, who
conducted autopsy examined as P.W.13 and she deposed that the second
deceased died due to drowning.
9.A perusal of the photographs which were marked as Ex.D.1
reveals that the bus was driven by the petitioner on the left hand side of
the road. The place of occurrence is turning, in which from the opposite
side, the deceased had driven his car. The photographs revealed that the
Maruti car hit the right hand side of the front of the bus and rolled down
and fell into the water channel.
10.It is seen that if at all the bus was driven by the petitioner in the
middle of the road or right hand side of the road, another front side of the
bus could got damaged. Except right hand side of the road, there is no
other damage to the bus. The Motor Vehicle Inspector categorically
deposed that the accident was not occurred due to mechanical defect. The
water channel is situated at left hand side of the road. The bus was also
driven by the petitioner on the left hand side of the road. Therefore, the
accident was not occurred due to rash and negligent driving of the
petitioner. Further, admittedly 34 passengers were travelled in the bus.
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CRL.R.C.(MD).No.60 of 2019
The prosecution did not even examine any of the passenger in order to
prove the charge under Section 304A against the petitioner.
11.Admittedly P.W.1 and P.W.2 are close relatives of the deceased.
According to them, they also travelled along with the car, which was
driven by the first deceased by their bike. P.W.3 and P.W.10 were also
travelled behind the car in a bicycle. Though they deposed in the Chief
Examination that the bus was only driven by the petitioner in the rash
and negligent manner and dashed against the car, in the cross
examination, they admitted that they were not seen the occurrence and
only after falling down in the water channel, they helped to drag the car
out of the water channel. Therefore, no independent witness has settled
the case of prosecution. P.W.1 and P.W.2 are close relatives of the
deceased. Therefore, in order to prove the charges, the prosecution ought
to have been examined any passenger who travelled in the bus which was
driven by the petitioner to prove that the petitioner had driven his bus in
a rash and negligent manner. The occurrence was happened in the
morning. Therefore, all the passengers were travelled in a fresh morning
and they could have been the best witness to prove the charges.
Unfortunately the prosecution did not even record their statement under
Section 161 Cr.P.C. Therefore, the maxim of 'res ipsa loquitur' cannot be
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CRL.R.C.(MD).No.60 of 2019
applied in this case, since it is clear from the Motor Vehicle Inspector
Investigation report and from the photographs produced by the petitioner.
Even at the first case, there was contra negligence on both the vehicles
due to which the accident had taken place. Therefore, the petitioner
cannot be convicted for the offence under Section 304A of IPC and he is
entitled for acquittal, since the prosecution has failed to prove the case
beyond any reasonable doubt.
12.Accordingly, the Criminal Revision Case is allowed and the
conviction and sentence imposed by the Courts below is set aside. The
petitioner is acquitted from all charges. Bail bonds if any executed, shall
stand cancelled. The fine amount if any paid by the petitioner shall be
refunded.
20.06.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
Mrn
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CRL.R.C.(MD).No.60 of 2019
To
1.The Additional District and Sessions Judge (Fast Track Court),
Nagercoil.
2.The Judicial Magistrate No.I, Nagercoil, Kanyakumari District.
3.The Inspector of Police,
Kanyakumari Police Station,
Kanyakumari District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
5.The Section Officer,
Criminal Section,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
CRL.R.C.(MD).No.60 of 2019
G.K.ILANTHIRAIYAN, J.
Mrn
CRL.R.C.(MD).No.60 of 2019
20.06.2023
https://www.mhc.tn.gov.in/judis
