Madras High Court
Sudhakar vs State Represented By on 22 September, 2023
Crl. R.C.(MD)No.244 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 22.09.2023
CORAM
THE HONOURABLE MR. JUSTICE P. DHANABAL
Crl. R.C.(MD)No.244 of 2019
and
Crl.M.P.(MD)No.3560 of 2019
Sudhakar .. Petitioner
Vs.
State Represented by
The Inspector of Police,
Panthanallur Police Station,
Thanjavur District.
(Crime No.68 of 2006). .. Respondent
Prayer : This criminal revision case is filed under Sections 397(1) r/w. 401 of
Cr.P.C., to call for the records and set aside the conviction and sentence imposed
upon the petitioner herein in Crl.A.No.77 of 2017 on the file of the learned
Additional District and Sessions Judge, Kumbakonam, Thanjavur District by
judgment dated 25.03.2019 confirming the judgment dated 04.11.2017 in C.C.No.
134 of 2006 on the file of the learned II Additional District Munsif cum Judicial
Magistrate No.I, Kumbakonam, Thanjavur District and acquit the petitioner herein of
the charges.
For Petitioner : Mr.K.Veilmuthu
For Respondent : Mrs.M.Aasha
Government Advocate (Crl. Side)
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Crl. R.C.(MD)No.244 of 2019
ORDER
This petition has been filed by the petitioner to set aside the judgment and
conviction passed by the learned Additional District and Sessions Judge,
Kumbakonam, Thanjavur District in Crl.A.No.77 of 2017 on 25.03.2019, in
confirming the judgment and conviction passed by the learned II Additional District
Munsif cum Judicial Magistrate No.I, Kumbakonam, Thanjavur District in C.C.No.
134 of 2006 on 04.11.2017.
2.The petitioner herein is accused in C.C.No.134 of 2006 and he was
convicted under Section 304A of IPC and sentenced to undergo two years simple
imprisonment. Aggrieved by the said judgment and conviction, the petitioner herein
preferred an appeal in Crl.A.No.77 of 2017 before the learned Additional District
and Sessions Judge, Kumbakonam, Thanjavur District and the learned Additional
District and Sessions Judge also confirmed the judgment and conviction passed in
C.C.No.134 of 2006, by dismissing the appeal by a judgment dated 25.03.2019.
3.According to the prosecution case, on 31.03.2006 at about 19.15 hours,
in the main road of Kathiramangalam Vellaipillaiyar kovil Street, opposite to house
of Ramalingam, when the deceased Balaya was proceeding from west to east by
walk, a bus bearing registration No.TN-46-B-2799, which was came in opposite
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Crl. R.C.(MD)No.244 of 2019
direction driven by the accused in a rash and negligent manner and dashed against
the said Balaya and thereby, he sustained injuries and died on the spot. Thereafter,
the petitioner was charged for the offence under Section 304A of IPC. After the
occurrence, the complaint Ex.P1 was given by P.W.1 and based on the complaint
given by P.W.1, P.W.9 registered FIR, Ex.P2. Thereafter, the case has been
investigated by P.W.1 and after investigation, they filed final report as against the
petitioner under Section 304A of IPC. Thereafter, the accused was served copies
under Section 207 of Cr.P.C. Thereafter, the learned Judicial Magistrate after hearing
both sides has framed charge under Section 304A of IPC and read over and
explained about the charge and the accused denied the charge.
4.The prosecution had examined P.W.1 to P.W.11 and marked Exs.P.1 to
P.8 and on the side of the accused, no one was examined and no document was
marked. After examination of prosecution witnesses, the accused were examined
under Section 313(1)(b) of Cr.P.C., with regard to incriminating circumstances found
in the prosecution evidences. The accused denied the evidences.
5.Upon perusing the oral and documentary evidences, the trial Court found
the petitioner guilty for the offence punishable under Section 304A of IPC and
sentenced to undergo two years simple imprisonment. Aggrieved by the same, the
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Crl. R.C.(MD)No.244 of 2019
petitioner preferred an appeal in Crl.A.No.77 of 2017 on the file of the learned
Additional District and Sessions Judge, Kumbakonam and the Appellate Court also
dismissed the same, by a judgment dated 25.03.2019 and confirmed the conviction
and sentence imposed by the trial Court.
6.Aggrieved by the said judgment, the petitioner has filed the present
revision case on the following grounds:
The Courts below failed to appreciate the fact that there is a delay of five
days in reaching the FIR to Court. The eye witnesses P.W.1 to P.W.4 deposed that
the vehicle was driven in high speed and there is no absolutely legal evidence to
connect the petitioner herein with the present Crime. There is no evidence about the
rash and negligence driving of the petitioner. In order to consider the offence under
Section 304A of IPC, rash and negligent is essential and the prosecution has failed to
prove the same but the Courts below have not considered above said aspects. There
are major contradictions between prosecution witnesses with the manner of
occurrence. As per the prosecution case, the occurrence took place but none of the
witnesses have examined on the side of accused. The witnesses were examined by
the prosecution and as per the Motor Vehicles Inspector Report, the left rear side of
the bus was damaged. The deceased came from service road and hit the vehicle.
Thereby, the left rear side of the bus was damaged. The aforesaid aspects have not
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Crl. R.C.(MD)No.244 of 2019
been considered by the Courts below. Therefore, the conviction and judgment passed
by the trial Court and confirmed by the appellate Court are liable to be set aside by
allowing this revision.
7.The learned counsel appearing for the petitioner argued that the
prosecution has proved the case beyond reasonable doubt. The evidence of P.W.1 to
P.W.4 are contradictory to each other. P.W.1 to P.W.4 are said to be eye witnesses
cannot be eye witnesses. The other witnesses also contradictory each other and none
of the evidence stated about the rash and negligent driving of the petitioner. To
consider the offence under Section 304A of IPC, the rash and negligent driving is
essential. But in this case, the prosecution failed to prove the rash and negligent act
of the petitioner. The Courts below failed to consider these aspects and wrongly
convicted the petitioner. Therefore, the prosecution witnesses are highly doubtful
and the offence under Section 304A of IPC was not proved beyond reasonable doubt.
Hence, the revision case is liable to be allowed by setting aside the judgment and
conviction of the Courts below.
8.The learned Government Advocate appearing for the respondent would
contend that the prosecution has examined P.W.1 to P.W.11 and marked Ex.P1 to
Ex.P8. The prosecution witness P.W.1 is the complainant as well as eye witness to
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Crl. R.C.(MD)No.244 of 2019
the occurrence. P.W.2 to P.W.4 are eye witnesses to the occurrence. P.W.7 is the
Motor Vehicle Inspector. P.W.8 registered FIR and P.W.10 Doctor conducted post
morterm of the deceased. The witnesses have categorically deposed about the alleged
occurrence. The vehicle came in high speed and dashed against the deceased. P.W.10
Doctor deposed that the deceased died due to shock and hemorrhage and due to
injuries sustained by him. The Investigating Officer also went to the occurrence and
prepared Observation Mahazer and rough sketch and arrested the accused and filed
final report. Therefore, as per the evidence of P.W.16 and P.W.17, the occurrence
took place in the extreme left side of the road. The prosecution has proved the
charges as against the petitioner and the trial Court also after elaborate discussion
convicted the accused and the appellate Court also after considering all the aspects,
dismissed the appeal by confirming the judgment of the trial Court and the revision
case is liable to be dismissed.
9.Upon perusing the documents and evidences adduced on both sides and
upon perusing the judgments of lower Courts, the points for determination in this
petition is whether the judgment of the learned Additional District and Sessions
Judge, Kumbakonam in Crl.A.No.77 of 2017 on 25.03.2019, in confirming the
conviction and sentence imposed by the learned II Additional District Munsif cum
Judicial Magistrate No.I, Kumbakonam, in C.C.No.134 of 2006 on 04.11.2017 is
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sustainable according to law and facts.
Point:-
10.The prosecution case is that on 31.03.2006 at about 19.15 hours, in the
main road of Kathiramangalam Vellaipillaiyar kovil Street, when the deceased was
walking on the extreme left side of the road from west to east, bus bearing
registration No.TN-46-B-2799 came in an opposite direction in a rash and negligent
manner and dashed against the deceased and he died on the spot.
11.In this case, P.W.1 to P.W.11 are eye witnesses. P.W.1 has deposed that
on 31.03.2006 at about 07.00 p.m., when her husband was came to his house in the
main road, a bus came in high speed and dashed against her husband and he fallen
down and he died on the spot and P.W.1 during her cross examination stated that she
did not know whether her husband was proceeding towards the left side of the road.
Further she admitted that after hearing noise only, she rushed to the spot. In this
context, it is stated that in the cross examination, she stated that 'vdJ fztu;
rk;gt rkaj;jpy; Nkw;NfapUe;J fpof;F Nehf;fp Nghdhu;. mtu; rhiyapy;
NghJ ,lJgf;fkhfg; Nghdhuh> tyJgf;fkhf Nghdhuh vd;W ehd;
ghu;f;ftpy;iy. ehd; vd; ngz; jz;zPu; vLf;f NghapUe;jJ ,d;Dk;
tutpy;iyNa vd;W vl;bg;ghu;f;Fk;NghJjhd; ,e;j rk;gtk; ele;jJ. ehd;
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Crl. R.C.(MD)No.244 of 2019
rj;jk; Nfl;L rk;gtjplj;jpw;F Xbr;nrd;W ghu;j;jNghJ vd; fztu; clk;gpy;
fhaq;fs; ,Ue;jJ ehd;jhd; Ngha;g;ghu;j;Njd;'. Therefore, from the evidence of
P.W.1, it reveals that after the occurrence and after hearing noise only, she rushed to
the spot and she cannot be eye witness to the occurrence.
12.P.W.2 in her evidence stated that on 31.03.2006 at about 07.00 p.m., her
father proceeded from the grocery shop, at that time, a bus came in opposite direction
and dashed against her father. There is no whisper about the rash and negligent
driving of the driver except the bus came in high speed. P.W.2 in her cross
examination stated that more than 15 persons witnessed the occurrence. But the
Investigating Officer has not examined any other independent witness. Even
according to the P.W.2, there is no rash and negligent driving of the driver.
13.Yet another witness P.W.3 also deposed that on 31.03.2006 at about
07.00 p.m., when he was standing in front of the house, the deceased Balaya was
proceeding towards east to west, at that time, a bus also came towards east to west
and dashed against the deceased Balaya and he sustained injuries. At that time, the
bus came in speedy manner. Though the witness stated about the speed of the bus, he
has not stated what was the speed and the evidence of P.W.3 also does not disclose
the rash and negligent act of the petitioner.
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14.Yet another eye witness P.W.4 also stated before the trial Court that on
31.03.2006 when he was standing near compound wall, the deceased Balaya was
proceeding from grocery shop, at that time, the bus came in a speedy manner and
dashed against Balaya and he died on the spot itself.
15.According to the evidence of P.W.2, the deceased came from west to
east but according to the evidence of P.W.3, the deceased came from south to north.
According to the evidence of P.W.4, the deceased came from west to east. Therefore,
there are major contradictions between the prosecution witnesses with regard to
scene of occurrence. Therefore, the prosecution has failed to prove the rash and
negligent driving of the accused.
16.At this juncture, the learned counsel appearing for the petitioner relied
on the judgment of this Court in the case of Selvamani v. State reported in 2022-1-
L.W. (Crl.) 126, wherein this Court in para no.13 held as follows:-
“Thus, in this case, in the background of the statement of PW.1
to PW.3 that the Bus was driven fast, the above principles should have
been borne in mind, while deciding the culpability. Admittedly, no
negligence can be attributed in the instant case. However, the question is
whether the driving of the Bus in a high speed amounted to culpable
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Crl. R.C.(MD)No.244 of 2019
rashness. In this context, a perusal of Ex.P6/rough sketch, demonstrates
that the width of the Thar road was 12 ft., and there was 5 ft., of Mud road
on the eastern side of the road. In this context, PW.1 states that :
“ehq;fs; Nuhl;by; ,lJ gf;fkhf nrd;Wf;nfhz;bUe;Njhk;.
me;j muR g]; Ntfkhf te;J ehq;fs; nrd;w Nkhl;lhu; irf;fps;
kPJ NkhjpaJ Nuhl;bd; ,lJ gf;fj;jpy; xJq;f
vq;fSf;F ,lk; ,y;iy.'
It appears to be incorrect and as stated above in the Judgment of the Hon-
ble Supreme Court of India, the evidence on record does not rule out the
possibilities that the victim could have also been a reason for the accident.
Further no tyre marks were also noted in the rough sketch. As held by the
Hon-ble Supreme Court of India in the aforementioned Judgment of State
of Karnataka Vs. Sathish, the phrase “high speed“ is a relative term and
the prosecution has not brought any other material on record to establish
what is meant by high speed. Further the manner of the accident that is the
Bike got hit in the Bumper, impacting the number plate and the injuries
mentioned in the Post~mortem report, viz., there was a cut on the nose, a
lacerated injury up to the eye~brow region and right upper side lip a cut,
split and contusion over the left cheek leading to the internal head injury,
all cumulatively shows that the speed cannot be projected as a case of
culpable rashness and as the evidence on record does not rule out the
action of the victim would also be the reason behind the event, the finding
of the Trial Court as well as the Lower Appellate Court is by an
interpretation of the statement of the witnesses and therefore, this is a fit
case for interference by this Court.”
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17.The learned counsel appearing for the petitioner relied on the judgment
of this Court in the case of C.H.Kesava v. State of Kerala in Crl.Rev.Pet.No.219 of
2012, wherein this Court in para no.20 held as follows:-
“20. In this context, it is relevant to quote a decision of this Court
in Thomas M.R. v. State of Kerala [2015 KHC 889] wherein while dealing
with Sections 279 and 304A IPC it has been held that in a case of rash and
negligent driving, the duty of the prosecution does not end by alleging the
rashness or negligence on the part of the driver. It must also be proved that
the rashness and negligence was responsible for the accident and the
consequent injury or death. It is also held that there is no presumption of
negligence under Section 304A IPC from the mere fact that a man is
knocked down and killed by a motorist. It is further held that the
presumption of law is that a person is innocent unless and until his guilt is
proved and simply because an accident occurred which resulted in injury or
death to a pedestrian or cycle rider, it cannot be taken for granted that the
driver of the vehicle involved in the incident is guilty of the crime. So the
principles laid down in the above decision is squarely applicable to the case
in hand. Both the courts below by improper appreciation of facts and
circumstances and evidence adduced, found the accused guilty and that has
caused miscarriage of justice and hence it is liable to be interfered with.
18.On careful reading of the aforesaid judgments, it is clear that mere
speed cannot be projected as the case of high speed. In this case, none of the
witnesses have stated about the rashness and negligence on the part of the accused.
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But they stated that bus came in a speedy manner. Mere evidence that the bus was
driven by the driver in a high speed is not sufficient to prove the evidence under
Section 304A of IPC.
19.The aforesaid aspect has not been considered by the trial Court. The
trial Court discussed about the evidence adduced on the prosecution side and failed
to consider that the prosecution have not witnessed about the rash and negligent
driving of the accused. The appellate Court failed to consider the absence of
evidence with regard to rash and negligent driving of the accused. With the available
evidence, it is unsafe to convict the petitioner for the offence under Section 304A of
IPC. Therefore, the judgment and conviction passed by the trial Court and also
confirmed by the appellate Court are unsustainable and liable to be set aside.
20.In the result, the Criminal Revision Petition is allowed and the
judgment and the conviction passed as against the petitioner in C.C.No.134 of 2006
dated 04.11.2017 by the learned II Additional District Munsif cum Judicial
Magistrate No.I, Kumbakonam and confirmed in Crl.A.No.77 of 2017 dated
25.03.2019, on the file of the learned Additional District and Sessions Judge,
Kumbakonam are set aside. The petitioner is acquitted from the charge under Section
304A of IPC and he be set at liberty subject to other cases if any. The bail bond if
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Crl. R.C.(MD)No.244 of 2019
any executed by the petitioner shall stand cancelled. Consequently, connected
miscellaneous petition is closed.
22.09.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes/No
Mrn
To
1.The Additional District and Sessions Judge, Kumbakonam, Thanjavur District.
2.The II Additional District Munsif cum Judicial Magistrate No.I, Kumbakonam,
Thanjavur District.
3.The Inspector of Police,
Panthanallur Police Station,
Thanjavur District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl. R.C.(MD)No.244 of 2019
P.DHANABAL, J.
Mrn
Crl. R.C.(MD)No.244 of 2019
22.09.2023
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