Madras High Court
Boopathi vs The State Represented By The Inspector ... on 10 January, 2025
Crl.RC.No.851 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 20.12.2024
PRONOUNCED ON : 10.01.2025
CORAM:
THE HONOURABLE MR.JUSTICE SHAMIM AHMED
Crl.RC.No.851 of 2021
Boopathi Petitioner
Vs
The State represented by the Inspector of Police
Mohanur Police Station, Namakkal Respondent
Prayer:- This Criminal Revision Case has been filed, against the judgement of
conviction and sentence, dated 21.10.2021 made in CA.No.48 of 2021, by the
Sessions Judge, Special Court for Trial of Cases under the SC/ST (POA) Act at
Namakkal, confirming the judgement of conviction and sentence, dated
24.02.2021, made in CC.No.116 of 2017 by the Judicial Magistrate II,
Namakkal.
For Petitioner : Mr.M.Mohamed Riyaz
For Respondent : Mr.A.Gopinath, GA(Crl.Side)
ORDER
1. This Criminal Revision Case has been filed, against the judgement of
conviction and sentence, dated 21.10.2021 made in CA.No.48 of 2021, by
the Sessions Judge, Special Court for Trial of Cases under the SC/ST
(POA) Act at Namakkal, confirming the judgement of conviction and
sentence, dated 24.02.2021, made in CC.No.116 of 2017 by the Judicial
Magistrate II, Namakkal, thereby convicting and sentencing the Revision
https://www.mhc.tn.gov.in/judis
Petitioner/Accused, Boopathi, for the offences under Section 279 of IPC
to pay a fine of Rs.1,000/-, in default to undergo 3 months Simple
Imprisonment and under Section 338 of IPC to pay a fine of Rs.1,000/-, in
default to undergo 3 months Simple Imprisonment and under Section
304A of IPC to undergo six months Simple Imprisonment.
2. The case of the Prosecution, arisen on the basis of the complaint, Ex.P3,
First Information Report, given by the defacto complainant, PW.1,
Jagadeeswaran, registered in Crime No.376 of 2016 at the Mohanur
Police Station for the offences under Sections 279, 338 and 304A of IPC,
is as follows:-
(a) When on 30.10.2016 at about 2.15 p.m., the father of the defacto
complainant, Kuppusamy, was riding his two wheeler, bearing
Reg.No.TN 48 the 9193, on the left side of the road towards North
direction, in Mohanur to Karur Road, along with his wife, Chellammal,
PW.3, as a pillion rider, at Vangal Bridge, a Car, bearing Reg.No.TN 88
A 7243, coming in the opposite direction and driven by the Revision
Petitioner/ accused, Boopathi, in a rash and negligent manner, hit
against the said two wheeler and caused the accident. In the above said
accident, both the rider and the pillion rider of the said two wheeler
sustained grievous injuries and the rider, Kuppusamy died on the way to
Hospital. Hence, for such acts, the Respondent Police, after conducting
investigation, had filed a charge sheet against the Revision Petitioner/
accused for the offences under Sections 279, 338 and 304A of IPC
https://www.mhc.tn.gov.in/judis
before the Judicial Magistrate II, Namakkal.
3. The case was taken on file in CC.No.116 of 2017 by the Judicial
Magistrate II, Namakkal. After receipt of summons from the Trial Court,
when the accused appeared in person before the Trial Court, copies of the
documents were served on them under Section 207 of Cr.PC. After giving
sufficient time to the accused and after hearing the accused and
considering the documents, necessary charges were framed for the
offences under Sections 279, 338 and 304A of IPC. Since the accused
had denied the charges and pleaded not guilty of the aforeaid charges
and claimed to be tried, in order to bring home the charges against the
accused, the Prosecution examined the following 11 witnesses, as PW.1
to PW.8 and marked 9 documents as Ex.P1 to Ex.P9.
1. PW.1 = Jagadeeswaran
2. PW.2 = Praveen, relative of PW.1, (eye witness)
3. PW.3 = Chellammal, wife of the deceased (eye witness)
4. PW.4 = Radhika (hearsay witness)
5. PW.5 = Gopalakrishnan (mahazar witness)
6. PW.6 = Nithyanandam (mahazar (witness)
7. PW.7 = Vijayan, Sub Inspector of Police
8. PW.8 = Elango, Investigating Officer
1. Ex.P1 = Complaint given by PW.1
2. Ex.P2 = Observation mahazar
3. Ex.P3 = First Information Report
4. Ex.P4 = Rough Sketch
5. Ex.P5 = Inquest Report
6. Ex.P6 = Post-mortem certificate
7. Ex.P7 = MVI Report of Two Wheeler
8. Ex.P8 = MVI Report of the Car
9. Ex.P9 = Wound Certificate of Chellammal
4. On completion of the evidence on the side of the Prosecution, when the
https://www.mhc.tn.gov.in/judis
accused was questioned under Section 313 of Cr.PC, as to the
incriminating circumstances found in the evidence of prosecution
witnesses against him, the accused had come with the version of total
denial and stated that he had been falsely implicated in this case. On the
side the accused, one Subramani was examined as DW.1 and no
document was marked.
5. The Trial Court, after hearing the arguments advanced on either side and
also looking into the materials available on record, found the Revision
Petitioner guilty and awarded punishments, as referred to above, by the
impugned judgement of conviction and sentence. On the appeal, the lower
appellate court had, by its impugned judgement of conviction and
sentence, confirmed the judgement of conviction and sentence of the Trial
Court. Aggrieved over the same, this Criminal Revision Case has been
filed by the Revision Petitioner/ accused.
6. This Court heard Mr.M.Mohamed Riyaz, the learned counsel for the
Revision Petitioner/accused and Mr.A.Gopinath, the learned Government
Advocate (Criminal Side) for the Respondent. Translated copies of the
judgements and the other connected documents were supplied by learned
counsel for the parties in the Court for consideration.
7. The learned counsel for the Revision Petitioner/accused has submitted
that the trial courts have not appreciated the evidence in a proper and
perspective manner and that though there is no valid, reliable and cogent
evidence, both oral and documentary evidence, to base conviction on the
https://www.mhc.tn.gov.in/judis
Revision Petitioner/accused for the offences under Sections 279, 338 and
304A of IPC, the trial courts erred in convicting the Revision Petitioner
only based on the evidence of the interested witnesses.
8. The learned counsel for the Revision Petitioner/accused has further
submitted that the impugned judgements of conviction and sentence of
the trial courts are not sustainable on the following grounds:-
a) Though the date of occurrence is 30.10.2016 at 2.15 p.m., Ex.P3 First
Information Report was registered on 31.10.2016 at 7.00 a.m. The First
Information Report was sent to the Court after a delay of two days, which
has not been properly and satisfactorily explained by the Prosecution.
Since, PW.7, Sub Inspector of Police has stated that he received a
written complaint from PW.1, but, PW.1 has stated that he instructed the
Police about the accident and he wrote the complaint, the registration of
the First Information Report itself becomes highly doubtful and there
were every possibilities to falsly implicate the Revision Petitioner for
some other reasons.
b) There is no independent eye witness to the occurrence. The alleged, eye
witnesses, namely, PW.1 to PW.3 who are relatives, namely, wife and
sons, are interested witnesses. As per the evidence of, PW.7, Sub
Inspector of Police, PW.2 could not have witnessed the occurrence.
PW.3, has also deposed that she did not see the driver of the car, which
caused the accident. Since the evidence of PW.1 to PW.3 are
contradictory in nature, they cannot be treated as eye witnesses to the
https://www.mhc.tn.gov.in/judis
occurrence.
c) There is also another contradiction in the evidence of PW.1 and PW.2.
PW.1 has not stated in the complaint that he was riding the vehicle along
with his cousin brother PW.2, as a pillion rider. But, PW.1, in his oral
evidence has stated that PW.2, who was claimed to be an eye witness to
the occurrence, was a pillion rider.
d) The essential requirements of rash and negligent driving on the part of
the Revision Petitioner/accused have not been proved, by valid
evidence. None of the witnesses deposed about the rash and negligent
driving of the Revision Petitioner.
e) Though PW.3 had stated in her evidence that she did not saw the driver
of the vehicle, which caused the accident, the Trial Court gave a wrong
finding that PW.3 has identified the accused at the time of the accident.
Thus, there is no proper appreciation of evidence on the part of the trial
courts.
f) Non examination of the Motor Vehicle Inspector to prove the damage
and cause of damage for the two wheeler and the Medical Officers, who
treated the injured and conducted post-mortem, would be fatal to the
case of the Prosecution.
9. The learned counsel for the Revision Petitioner has ultimately submitted
that in view of the above said grounds, the case of the Prosecution
appears to be wholly unreliable and that the Prosecution has miserably
failed to prove its case beyond the realm of reasonable doubts and that in
https://www.mhc.tn.gov.in/judis
view of the above said grounds and in the absence of valid, convincing
and cogent evidence against the Revision Petitioner/accused to base
conviction for the offences under Sections 279, 338 and 304A of IPC, the
impugned judgements of conviction and sentence are not sustainable.
10. In support of his contentions, the learned counsel for the Revision
Petitioner has relied on the following decisions:-
a) 2021 CDJ MHC 6783 (Subburam Vs. Inspector of Police)
b) 2016 SCC Online Mad 30704 (Renugopal Vs. State)
c) CDJ 2019 MHC 5962 (Sankarapandiyan Vs State)
d) Order dated, 23.12.2020 in Crl.RC.No.1090 of 2020 of the Madras High
Court
e) Order dated, 16.12.2020, in Crl.RC.No.1118 of 2020 of the Madras
High Court
11. Per contra, the learned Government Advocate (Criminal Side) for the
Respondent has, while supporting the impugned judgements of conviction
and sentence of the trial courts, submitted that the Prosecution has proved
its case beyond all reasonable doubts, by letting in valid and cogent
evidence and that though the Prosecution witnesses are interested
witnesses, their evidence is sufficient to base conviction on the Revision
Petitioner/accused for the offences under Sections 279, 338 and 304A of
IPC and that therefore, the impugned judgements of conviction and
sentence do not warrant any interference by this Court.
12. I have given my careful and anxious consideration to the rival contentions
put forward by the learned counsel on either side and thoroughly scanned
through the entire evidence available on record and also perused the
impugned judgements of conviction and sentence, including the various
https://www.mhc.tn.gov.in/judis
decisions referred to by the learned counsel for the parties.
13. Now, in the present case, the question is whether the impugned
judgements of conviction and sentence of the trial courts, convicting and
sentencing the Revision Petitioner/accused for the offences under
Sections 279, 338 and 304A of IPC are justifiable or not?
14. In order to attract the provisions of 279, 338 and 304A of IPC, the
Prosecution has to prove the essential ingredient of rash and negligent
manner on the part of the Revision Petitioner/accused, by letting in valid
and cogent evidence. In the present case, in order to come to a
conclusion as to whether the Prosecution has proved its case against the
Revision Petitioner under the provisions of Sections 279, 338 and 304A of
IPC, by valid and cogent evidence and whether the trial courts are right in
coming to the conclusion that the Revision Petitioner is guilty of the
offences under Sections 279, 338 and 304A of IPC, it has become
necessary for this Court to analyse the entire evidence, both oral and
documentary evidence, in a proper and perspective manner.
15. At the outset, it is relevant to quote the provisions of Sections 279, 338
and 304A of IPC as under:-
“279. Rash driving or riding on a public way.—Whoever drives any
vehicle, or rides, on any public way in a manner so rash or
negligent as to endanger human life, or to be likely to cause hurt or
injury to any other person, shall be punished with imprisonment of
either description for a term which may extend to six months, or
with fine which may extend to one thousand rupees, or with both.
338. Causing grievous hurt by act endangering life or personal
safety of others.— Whoever causes grievous hurt to any person by
https://www.mhc.tn.gov.in/judis
doing any act so rashly or negligently as to endanger human life, or
the personal safety of others, shall be punished with imprisonment
of either description for a term which may extend to two years, or
with fine which may extend to one thousand rupees, or with both.
304A. Causing death by negligence.—Whoever causes the death
of any person by doing any rash or negligent act not amounting to
culpable homicide, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine,
or with both.”
16. With regard to the grounds, relating to delay in registering the First
Information Report and sending the same to the Court concerned and also
the question as to who wrote the complaint, raised by the learned counsel
for the Revision Petitioner, on a perusal of the entire records, it is seen
that the date of the accident is 30.10.2016 at 2.15 p.m. and Ex.P3 First
Information Report was registered on the next day on 31.10.2016 at 7.00
a.m. and the same was sent to the concerned Court after a delay of two
days. These facts are evident from the oral evidence of PW.7, Sub
Inspector of Police, who registered the First Information Report, inasmuch
as PW.7, has deposed to the effect that if it is stated that he had sent the
First Information Report involving a delay of 2 days, the same is correct
and that if it is stated that the signature of the complaint was not obtained
in column 14 of the First Information Report, the same is correct.
17. Regarding the issue as to who wrote the complaint, it is appropriate to
refer to the evidence of PW.1, defacto complainant, PW.7, Sub Inspector
of Police and PW.8, Investigating Officer. PW.7 has stated that he
received a written complaint from PW.1, but, PW.1, in his cross
https://www.mhc.tn.gov.in/judis
examination, has deposed that since he was not capable of writing in
Tamil, the complaint was written by the Police. Contrarily, PW.8 deposed
that PW.1 knew Tamil.
18. Thus, it is established that the complaint was written by the Police after
due deliberation and consultation and not by PW.1, complainant. Further,
this Court finds no satisfactory explanation from the Prosecution, by way
of valid evidence whatsoever for the delay both in registering the First
Information Report and also sending the same to the Court. Hence, the
registration of the First Information Report itself becomes highly doubtful
and there were every possibilities to falsely implicate the Revision
Petitioner for some other reasons and also to manipulate, by suitably
drafting the complaint according to their wish. Hence, this Court is of the
view that the registration of the First Information Report was with due
deliberation and consultation from the Prosecution and not by PW.1.
19. As the case of the Prosecution mainly rests on the evidence of PW.1 to
PW.3, who are stated to be the eye witnesses to the occurrence, now
coming to the question as to whether the evidence of the Prosecution
witnesses, PW.1 to PW.3, can be relied upon, admittedly, PW.1 is the
defacto complainant and son of the deceased, PW.2 is the relative of
PW.1 and PW.3 is the wife of the deceased and it can be stated that they
are interested witnesses.
20. On a perusal of the oral evidence of PW.1, it is seen that PW.1 in his chief
examination, has deposed that “the registration number of the car, which
https://www.mhc.tn.gov.in/judis
caused the accident, was not in his memory and that in the cross
examination, PW.1 has deposed that if it is stated that only on hearing
the terrific sound, he had seen, the same is correct.” In view of such
evidence of PW.1, PW.1 cannot be said to be a direct eye witness to the
occurrence.
21. Admittedly, PW.1 in the First Information Report did not state that PW.2
accompanied him as a pillion rider. But, PW.1, in his chief examination,
has deposed that in the two wheeler, he and PW.2 as a pillion rider were
going behind the deceased. PW.2 also in his chief examination, has
deposed that in that two wheeler, he and PW.1 going behind the
deceased. Further, PW.7 in the cross examination has deposed that “if it
is stated that the complainant said in his complaint that he was going
behind the deceased person and no one came along with them, the
same is correct.” Thus, here also, it cannot said that PW.2 had witnessed
the occurrence.
22. In this regard, it is also seen that PW.3, during the Chief-Examination, has
deposed that “since the said Car came very speedly, she did not see the
driver and that since she is not educated, she did not know the
registration number of the Car”.
23. In view of the above said evidence of PW.7, Sub Inspector of Police and
PW.1 to PW.3, who are relatives and interested witness and though they
are stated to be the eye witnesses to the occurrence, they cannot be
treated as eye witnesses to the occurrence and hence, their evidence is
https://www.mhc.tn.gov.in/judis
unbelievable and cannot be taken into consideration. There is no proper
corroboration of evidence, which is not at all taken into consideration by
the trial courts.
24. Though PW.3 had stated in her evidence that she did not saw the driver of
the vehicle, which caused the accident, the Trial Court gave a wrong
finding that PW.3 has identified the accused at the time of the accident.
However, the trial courts erred in relying on the evidence of PW.1 to PW.3
to base conviction on the Revision Petitioner/ accused. Thus, this Court is
of the view that there is no proper appreciation of evidence on the part of
the trial courts, while passing the impugned judgements of conviction and
sentence.
25. Witnesses may be categorized into three distinct categories. They may be
wholly reliable. Similarly there may be witnesses, who can be considered
wholly unreliable. There is no difficulty in placing reliance or disbelieving
his evidence when an evidence is wholly reliable or wholly un-reliable, but
difficulty arises in case of third category i.e. where witness is neither
wholly reliable nor wholly unreliable. Hostile witness ordinarily falls in
category of those witnesses who are neither wholly reliable nor wholly un-
reliable. The Honourable Supreme Court, in Khujji @ Surendra Tiwari Vs.
State of M.P; AIR 1991 SC page 1853, was pleased to observe as under
:-
"The evidence of a prosecution witness cannot be rejected in toto
merely because the prosecution chose to treat him as hostile and
cross-examined him. The evidence of such witnesses cannot be
https://www.mhc.tn.gov.in/judis
treated as effaced or washed off the record altogether, but the same
can be accepted to the extent their version is found to be
dependable on a careful scrutiny thereof."
26. The term "hostile witness" does not find a place in the Evidence Act 1872
(herein after referred to as the Act of 1872 for brevity). It is a term
borrowed from the English Law. Though in the English Law to allow a
party to contradict its own witness was not acceptable a view, the theory
of contradicting its own witness was resisted on the ground that a party
should be permitted to discard or contradict his own witness, which turns
unfavorable to the party calling him, however, this rigidity of rule was
sought to be relaxed by evolving a term "hostile" or "unfavourable
witness" in common law.
27. It is relevant to quote Section 154 (1) of the Act of 1872, as under:-
“"the Court may, in its discretion, permit the person, who calls a
witness to put any question to him, which might be put in cross
examination by the adverse party".
28. Sub-Section (2) of Section 154 of Act of 1872, further provides as under:-
"Nothing in this section shall disentitle the person so permitted under
sub-section (1), to rely on any part of evidence of such witness".
29. Thus, discretion is vested in Court to permit a person to put such question,
which may be put by an adverse party, if Court deems it appropriate.
Thus, the term "hostile witness" has been borrowed from the English Law
and developed in through case Laws.
30. The principle of "falsus in uno falsus in omnibus" (false in one thing, false
in everything) has no application in India. It is the duty of the Court to
https://www.mhc.tn.gov.in/judis
separate grain from chaff. Keeping in view the above principles, the
Honourable Supreme Court, in the case of Sucha Singh v. State of
Punjab; AIR 2003 SC 3617, was pleased to observe as under :-
"even if major portion of the evidence is found to be deficient, in case
residue is sufficient to prove guilt of an accused, it is the duty of the
court to separate grain from chaff. Falsity of particular material
witness or material particular would not ruin it from the beginning to
end. The maxim falsus in uno falsus in omnibus (false in one thing,
false in everything) has no application in India and the witness
cannot be branded as a liar. In case this maxim is applied in all the
cases it is to be feared that administration of criminal justice would
come to a dead stop. Witnesses just cannot help in giving
embroidery to a story, however, truth is the main. Therefore, it has to
be appraised in each case as to what extent the evidence is worthy
of credence, and merely because in some respects the court
considers the same to be insufficient or unworthy of reliance, it does
not necessarily follow as a matter of law that it must be disregarded
in all respects as well."
31. Now, coming to question as to whether the Revision Petitioner is guilty of
rash and negligent driving or not, it is settled proposition of law that there
can be no general presumption that a person should have driven a vehicle
in a rash and negligent manner. The Prosecution has to prove the factum
of rash and negligent manner, by convincing and concrete evidence.
When there is no evidence to show the rash and negligent driving by an
accused, the accused person is entitled for acquittal.
32. In the present case, it is seen from the entire evidence of the Prosecution
witnesses, particularly that of PW.1 to PW.3, who are interested witnesses
that there is no indication that the Revision Petitioner drove the vehicle in
a rash and negligent manner nor they have stated so in their statements.
There is no other independent eye witness to the occurrence. Since none
https://www.mhc.tn.gov.in/judis
of the Prosecution witnesses deposed about the rash and negligent of the
Revision Petitioner. In other words, there is no evidence at all in this
regard. Thus, it is established that the essential requirement of rash and
negligent driving on the part of the Revision Petitioner/ accused has not
been proved by the Prosecution. On a perusal of the entire evidence, it is
also highly improbable to say that the Revision Petitioner/ accused drove
the vehicle in a rash and negligent manner.
33. This Court, in the case of Subburam v. Inspector of Police; 2021 CDJ
MHC 6783 in Crl.RC(MD)No.89 of 2018 (Order dated 02.09.2021), was
pleased to observe as under:-
“13. It is mainly argued on the side of the petitioner/accused that
the oral evidence of the prosecution witnesses was not proved the
rash and negligent driving of the accused and there are
contradictions between the oral evidence of the prosecution
witnesses and there can be no general presumption that a person
should have driven a vehicle in a rash and negligent manner,
merely because there was an accident.
14. At this juncture, it is relevant to refer the decision of this Court
reported in 2017-1-LW.(Crl.) 160 (M.Subramani Vs. State rep. By
Inspector of Police, Edapadi Police Station, Salem District),
wherein this court has held as follows:-
"19.In State of Karnataka vs. Sathish (1998)8 SCC 493), in a road
accident where the accused was prosecuted under Section 304-A
IPC, one of the witness had stated that the bus drive came driven
the bus at a high speed. The Hon'ble Apex Court held that it would
not satisfy the requirement of the driver driving the vehicle in a rash
and negligent manner as required under Section 304-A IPC and
acquitted the accused."
20. In this respect, the following observations made by the Hon'ble
Supreme Court in SATISH (supra) are relevant here to note:-
“3. Both the Trial Court and the Appellate Court held the
https://www.mhc.tn.gov.in/judis
respondent guilty for offences under Sections 337, 338 and 304-A
IPC after recording a finding that the respondent was driving the
truck at a "high speed". No specific finding has been recorded
either by the Trial Court or by the First Appellate Court to the effect
that the respondent was driving the truck either negligently or
rashly. After holding that the respondent was driving the truck at a
"high speed", both the Courts pressed into aid the doctrine of res
ipsa loquitur to hold the respondent guilty.
4. Merely because the truck was being driven at a "high speed"
does not bespeak of either "negligence" or "rashness" by itself.
None of the witnesses examined by the prosecution could give any
indication, even approximately, as to what they meant by "high
speed". "High speed" is a relative term. It was for the prosecution to
bring on record material to establish as to what it meant by "high
speed" in the facts and circumstances of the case. In a criminal
trial, the burden of providing everything essential to the
establishment of the charge against an accused always rests on
the prosecution and there is a presumption of innocence in favour
of the accused until the contrary is proved. Criminality is not to be
presumed, subject of course to some statutory exceptions. There is
no such statutory exception pleaded in the present case. In the
absence of any material on the record, no presumption of
"rashness" or "negligence" could be drawn by invoking the maxim
"res ipsa loquitur". There is evidence to show that immediately
before the truck turned turtle, there was a big jerk. It is not
explained as to whether the jerk was because of the uneven road
or mechanical failure. The Motor Vehicle Inspector who inspected
the vehicle had submitted his report. That report is not forthcoming
from the record and the Inspector was not examined for reasons
best known to the prosecution. This is a serious infirmity and
lacuna in the prosecution case.”
21. Subsequently, in Abdul Subhan vs. State (NCT of Delhi) (2007
Cri.L.J. 1089), in a road accident case for an offence under Section
304-A IPC, the only available evidence of an Head Constable is
that the bus driver had driven the bus fastly. The Delhi High Court
relying on the Hon'ble Apex Court decision in SATISH (supra) held
that the bus driver cannot be held to have drove the bus in a rash
and negligent manner.
22. In State vs. Avadh Kishore (Cri.L.P. No.213 of 2007 dated
30.1.2009 (Delhi High Court)), the Delhi High Court reiterated its
earlier view in ABDUL SUBHAN (supra).
https://www.mhc.tn.gov.in/judis
23. Recently in Puttaiah @ Mahesh vs. State by Rural Police (Crl.
Review Petition No. 1317 of 2010 dated 4.3.2016 (Karnataka High
Court)), the Karnataka High Court held as under:-
"In this view of the matter, both the Trial Court as well as the First
Appellate Court have not assessed the oral and documentary
evidence in right perspective. Both the Courts should have
navigated through the evidence of material witnesses cautiously.
Glaring inconsistencies have been brushed aside as minor
variations. They have adopted wrong approach to the real state of
affairs and have not properly scanned the evidence. Both the
Courts have forgotten that the initial burden was on the prosecution
to establish the charge of rashness or negligence beyond
reasonable doubt. Thus, the judgments of both the Courts suffer
from perversity and illegality. Hence, this Court is of the opinion
that the revision petition is to be allowed."
15. On coming to the instant case on hand, the prosecution
witnesses have not stated that the accident occurred due to the
rash and negligent driving of the accused. For all the reasons
stated above, this court is of the considered view that the
prosecution has not proved the case beyond reasonable doubt.
16. In the result, this Criminal Revision is allowed. The impugned
judgment of conviction and sentence are set aside. The revision
petitioner/accused is acquitted of the charges levelled against him.
The bail bond if any executed by him shall stand cancelled and the
fine amount if any paid by him shall be refunded to him.”
34. In the present case, from the evidence of PW1 to PW3, it is highly
improbable to say that the Revision Petitioner/A1, the driver of the vehicle
had driven in a rash and negligent manner. The rash and negligent driving
of the vehicle is the essential component in order to attract section 304 (A)
of IPC and the prosecution has not established the case before the trial
courts that the Revision Petitioner/A1 had driven the vehicle in rash and
negligent manner. There is no indication from the prosecution evidence
that the Revision Petitioner/A1 had driven the vehicle in a rash and
https://www.mhc.tn.gov.in/judis
negligent manner. And no evidence was let in by the prosecution as to the
speed in which vehicle was driven by the Revision Petitioner/accused.
35. This Court, in the case of Renugopal vs State; 2016 SCC Online Mad
30704, relying upon the dictum of Honourable Supreme Court, has held in
para No. 24 that ipse dixit of the eye witnesses that the accused came
driven the vehicle fast was not enough to convict the accused person. The
relevant paragraph is extracted hereunder.
"24. In the decided cases when the witnesses stated that the driver
had driven the vehicle at high speed, the Courts held that that will
not be a rash and negligent act. Further the ipse dixit of the eye-
witnesses in this case is that the accused came driven the van fast.
There is no material as to what was the speed, what was the details
of the speed there is no material to decide whether the accused has
driven the van in a rash and negligent manner."
It is also relevant to extract the para No. 18, 19 of the said judgment
wherein this Court has extracted the dictum of the Hon'ble Apex Court as
under:-
“18. In State of Karnataka v. Satish ((1998) B SCC 493), in a road
accident, the accused was prosecuted under Section 304-A IPC.
One of the witnesses had stated that the bus driver came driven the
bus at a high speed. The Hon'ble Apex Court held that it would not
satisfy the requirement of the diver having driven the vehicle in a
rash and negligent manner as required under Section 304-A IPC.
and acquitted the accused.
19. In this respect, the following observations of the Hon'ble
Supreme Court made in Satish (supra) are relevant here to note:
"3. Both the Trial Court and the Appellate Court held the respondent
guilty for offences under Sections 337, 338 and 304-A IPC after
recording a finding that the respondent was driving the truck at a
"high speed". No specific finding has been recorded either by the
Trial Court or by the First Appellate Court to the effect that the
respondent was driving the truck either negligently or rashly. After
https://www.mhc.tn.gov.in/judis
holding that the respondent was driving the truck at a "high speed",
both the Courts pressed into aid the doctrine of res ipsa loquitur to
hold the respondent guilty.
4. Merely because the truck was being driven at a "high speed"
does not bespeak of either "negligence" or "rashness" by itself.
None of the witnesses examined by the prosecution could give any
indication, even approximately, as to what they meant by "high
speed". "High speed is a relative term. It was for the prosecution to
bring on record material to establish as to what it meant by "high
speed" in the facts and circumstances of the case. In a criminal trial,
the burden of providing everything essential to the establishment of
the charge against an accused always rests on the prosecution and
there is a presumption of innocence in favour of the accused until
the contrary is proved. Criminality is not to be presumed, subject of
course to some statutory exceptions. There is no such statutory
exception pleaded in the present case. In the absence of any
material on the record, no presumption of "rashness" or
"negligence" could be drawn by invoking the maxim 'res ipsa
loquitur" There is evidence to show that immediately before the
truck turned turtle, there was a big jerk. It is not explained as to
whether the jerk was because of the uneven road or mechanical
failure. The Motor Vehicle Inspector who inspected the vehicle had
submitted his report. That report is not forthcoming from the record
and the Inspector was not examined for reasons best known to the
prosecution. This is a serious infirmity and lacuna in the prosecution
case".”
36. Similarly, this Court in Sankarapandiyan Vs. State; CDJ 2019 MHC
5962 in para 13, was pleased to observe as under:-
“13. In the case on hand, as stated above, none of the Witnesses
have spoken about the Bus having been driven in a rash an
negligent manner. Further, no evidence has been let in by the
prosecution to decide, as to what was the speed in which the bus
was driven.”
37. Another infirmity in the case of the Prosecution, as pointed out by the
learned counsel for the Revision Petitioner is the non examination of the
Motor Vehicle Inspector to prove the damage and cause of damage for the
two wheeler and the Medical Officers, who treated the injured and
https://www.mhc.tn.gov.in/judis
conducted post-mortem, as witnesses. In this regard, in the present case,
though two MVI Reports, a post-mortem certificate and a wound
certificate of Chellammal, have been marked as Ex.P7, Ex.P8, Ex.P6 and
Ex.P9 respectively, but to corroborate the said documents, admittedly, the
Prosecution has not examined the Motor Vehicle Inspector concerned and
the concerned Doctors. Hence, in view of non-examination of Doctors and
Motor Vehicles Inspector and failure in marking the documents through
the appropriate witnesses, it cannot be stated that the said documents are
proved and the Revision Petitioner is guilty of rash and negligent driving.
As such, non-examination of the concerned Motor Vehicles Inspector and
Doctors as witnesses is fatal to the case of the Prosecution and it cannot
said that the Revision Petitioner/accused is guilt of rash and negligent
driving.
38. This Court, in the case of Srinivasan Vs. State, in Crl.R.C. 1090 of 2020,
by the order, dated 23.12.2020, while acquitting, was pleased to observe
as under:-
“10. ..... The direction and position of the bus shown in rough sketch
is contrary to the oral evidence, and the doctors who treated the
injured and conducted post-mortem, were not examined as
witnesses in this case. Likewise, the Motor Vehicles Inspector was
not examined as witnesses. Exs.P7 to P14 are marked through
Investigating Officer. In view of non-examination of Doctors and
Motor Vehicles Inspector and failure in marking the documents
through the appropriate witnesses, it cannot be conclusively held
that the documents are proved and further nothing to show that the
petitioner driven the vehicle in a rash and negligent manner and he
is the cause for the accident".
39. This Court, in the case of N.Kinnaskandan Vs. State, in Crl.R.C. 1118 of
https://www.mhc.tn.gov.in/judis
2020, by the order, dated 16.12.2020, was pleased to observe as under:-
“12. Admittedly, the Motor Vehicle Inspector were not examined to
prove the damages caused and cause for damage of the motor
bikes. Further, the Doctors, who treated the injured were not
examined in this case as witnesses, even the Postmortem Doctor
was not examined, which is fatal, cut the root of the prosecution
case.”
40. At this juncture, this Court is of the view that through out the web of the
Criminal Jurisprudence, one golden thread is always seen that it is the
duty of the Prosecution to prove the guilt of the accused beyond all
reasonable doubts, by letting in valid, convincing and cogent evidence.
This burden of proof on the Prosecution to prove guilt is also known as
presumption of innocence. The presumption of innocence, some times
refer to by the latin expression “ei incumbit probatio qui dicit, non qui
negat” (the burden of proof is on one who declares, not to one who
denies) is the principle that one is considered innocence unless proven
guilt. In criminal jurisprudence, every accused is presumed to be innocent
unless the guilt is proved. The presumption of innocence is a human right.
The Prosecution may obtain a criminal conviction only when the evidence
proves the guilt of accused beyond reasonable doubt.
41. In sum and substance, in the present case, this Court is of the view that
the delay in registering of the First Information Report and sending the
same to the concerned Court creates a doubt and suspicion over the case
of the Prosecution in implicating the Revision Petitioner/accused for the
offences under Sections 279, 338 and 304A of IPC. PW.1 to PW.3 are
https://www.mhc.tn.gov.in/judis
interested witnesses and as per their evidence, they cannot be treated to
be the eye witnesses to the occurrence and hence, their evidence cannot
be relied upon. There is no other independent eye witness to the
occurrence. None of the Prosecution witnesses has spoken about the
factum of rash and negligent driving on the part of the Revision
Petitioner/accused. There is no evidence to prove the allegation of rash
and negligence against the Revision Petitioner/accused, even though
PW.3, who is the wife of the deceased accompanying him, did not
recognise the Revision Petitioner nor said that he was driving the vehicle
rashly and with negligence. Further, non-examination of the Motor
Vehicles Inspector and the Doctor concerned to corroborate the
documents filed by them, is fatal to the case of the Prosecution. The
Prosecution has failed to discharge the initial burden of establishing the
ingredients in respect of rash and negligent aspect required for all the
offences under Sections 279, 338 and 304A of IPC. Both the trial courts
have not assessed the oral and documentary evidence in right
perspective. The learned Government Advocate for the Respondent has
not been able to point out any evidence on record to prove the charges
under Sections 279, 338 and 304A of IPC against the Revision Petitioner/
accused.
42. The Honourable Supreme Court, in the case of Vadivelu Thevar v. State
of Madras; 1957 SCR 981: AIR 1957 SC 614, was pleased to observe at
para 11 & 12 as under:-
https://www.mhc.tn.gov.in/judis
"11...........it is a sound and well-established rule of law that the court
is concerned with the quality and not with the quantity of the
evidence necessary for proving or disproving a fact. Generally
speaking, oral testimony in this context may be classified into three
categories, namely:
(1) Wholly reliable,
(2) Wholly unreliable
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof the court should have no difficulty in
coming to its conclusion either way it may convict or may acquit on
the testimony of a single witness if it is found to be above reproach
or suspicion of interestedness, incompetence, or subornation. In the
second category the court equally has no difficulty to its conclusion.
It is in the third category of cases that the court has to be
circumspect and has to look for corroboration in the material
particulars by reliable testimony direct or circumstantial........."
43. In the present case, after a careful perusal of all the testimonies of the
Prosecution witnesses as well as the defence witnesses, this Court finds
that the trial courts had failed to circumspect the material on record
carefully.
44. Further, a Division Bench of the Allahabad High Court, in the case
of Suresh Narain Tripathi and others Vs. State of UP and Others; 2005
Cril LJ 2479, granted acquittal for the offence under Section 436 of IPC,
where the star witnesses were unreliable and was pleased to observe at
para 13 as under:-
"13. Certainly, it is the primary principle that the accused must be
and not merely may be guilty before a court can convict and a mental
distinction between 'may be' and 'must be' is long and divided vague
conjectures from sure conclusions."
45. It feels pain to observe that in our present system of trial despite having
sufficient power to the Judge to ask questions to the witnesses in order to
https://www.mhc.tn.gov.in/judis
find out truth, most of them do not ask questions to the witnesses to shift
the grain from the chaff. Practice of leaving witnesses to the Advocates,
when a witness becomes hostile, is not un-common in the trial courts.
Time and again the Honourable Supreme Court has reminded that a
Judge does not preside over a criminal trial merely to see that no innocent
man is punished, but a Judge also presides to see that a guilty man does
not escape. Both are public duties, which the Judge has to perform.
Therefore, the trial Court must shed their inertia and must intervene in all
those cases where intervention is necessary for the ends of justice.
46. In the present case, in the absence of any concrete and convincing
evidence to show that by the statement of the witnesses, offences under
Sections 279, 338 and 304A of IPC have not been proved against the
Revision Petitioner/Accused. Therefore, it is difficult to sustain the
impugned conviction and sentence imposed on the Revision
Petitioner/Accused under Sections 279, 338 and 304A of IPC merely on
the unreliable testimony of the Prosecution witnesses, whose evidence is
not worthy of credence, as they are not acceptable in the eye of law.
Hence, the impugned judgements of conviction and sentence recorded
by the trial courts under Sections 279, 338 and 304A of IPC against the
Revision Petitioner/Accused cannot be sustained and accordingly, are
liable to be set aside.
47. In the result, in view of the above said discussions and reasons, this
Criminal Revision Case is allowed. The impugned judgement of conviction
https://www.mhc.tn.gov.in/judis
and sentence, dated 21.10.2021 made in CA.No.48 of 2021, by the
Sessions Judge, Special Court for Trial of Cases under the SC/ST (POA)
Act at Namakkal and the impugned judgement of conviction and
sentence, dated 24.02.2021, made in CC.No.116 of 2017 under Sections
279, 338 and 304A of IPC, by the Judicial Magistrate II, Namakkal, are
set aside and reversed. The Revision Petitioner, Boopathi, is acquitted of
all the charges levelled against him. The personal bonds and surety
bonds, if any executed by the Revision Petitioner, shall stand cancelled
and the sureties are discharged. No order as to costs.
48. Let record of the Trial Court be sent back to the Court concerned along
with copy of judgement and order for information.
10.01.2025
Index:Yes/No
Web:Yes/No
Speaking/Non Speaking
Neutral Citation
Srcm
To
1. The Sessions Judge, Special Court for Trial of Cases registered under
SC/ST (POA) Act at Namakkal
2. The Judicial Magistrate II, Namakkal
3. The Public Prosecutor, Madras High Court
https://www.mhc.tn.gov.in/judis
SHAMIM AHMED, J.
Srcm
Pre-Delivery Order in
10.01.2025
https://www.mhc.tn.gov.in/judis
