Madras High Court
Gunasekaran vs The State on 2 June, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl.A.No.261 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 02.06.2025
Coram :
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Criminal Appeal No. 261 of 2017
Gunasekaran .. Appellant
Versus
The State
Rep by the Inspector of Police,
Veeranam Police Station,
Crime No. 81 / 2014 .. Respondent
Criminal Appeal filed under Section 374 (2) of the Code of Criminal
Procedure, praying to set aside the judgment of conviction and sentence dated
25.04.2017 passed against the Appellant in Sessions Case No.301 of 2015, by
the learned III Additional Sessions Judge, Salem.
For Appellant : M/s. R. Srinivas, Senior Counsel
for Mrs. Mythili Srinivas
For Respondent : Mrs. G.V.Kasthuri
Additional Public Prosecutor
JUDGMENT
This Criminal Appeal is filed under Section 374(2) of the Code of
Criminal Procedure assailing the judgment dated 25.04.2017 passed in
Sessions Case No.301 of 2015 on the file of learned III Additional Sessions
Judge, Salem.
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2. The brief facts, which are necessary for the disposal of this
Criminal Appeal, are as follows:-
2.1. On 04.03.2014, around 2.30 p.m., the Appellant was driving the
bus bearing Registration No. TN-30-N-1293 belongs to the State Transport
Corporation, Salem Division. The bus was driven from Kadathur to Salem
with the passengers on-board. According to the passengers in the bus, the
Appellant had driven the bus in a rash and negligent manner and therefore,
they pleaded him to drive the bus slowly and cautiously. However, the
Appellant retorted by saying that “I drive as I please. Are you scared of death?
By saying so, the Appellant proceeded to drive the bus in a rash and negligent
manner. When the bus was nearing S.R.S. Engineering College, Veeranam,
the Appellant drove the bus at a hectic speed and hit the bus against a tamarind
tree. In the impact, three passengers by name Vijayalkshmi, Samraj and Mayil
have sustained grievous injuries and died on the spot. That apart, several
passengers namely Angamuthu, Radha, Sabapathi, Saranya, Karthikeyan and
Shajahan have suffered grievous injuries and were hospitalised. Shajahan is
the Conductor of the bus who also suffered grievous injury. On hearing the
cries and commotion, the villagers rushed to the scene of occurrence and
rescued the injured. One Thirupathy, came to the rescue of the injured and he
called the ambulance and also informed the Police about the incident.
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Subsequently, on the basis of the complaint given by one of the injured victims
Angamuthu, the case in Crime No. 81 of 2014 was registered by the Veeranam
Police Station against the Appellant/Accused. Ex.P-15 is the First Information
Report which was forwarded to the higher Police officials as well as the Court.
2.2. On receipt of Ex.P-15, P.W-18, Assistant Superintendent of
Police, taken up the investigation and proceeded to the place of accident. He
drew a rough sketch and an observation mahazar in the presence of witnesses
Thirupathi and Xavier. He also collected the broken glass pieces of the bus
under Form 95. He caused the arrest of the Appellant near Kuppanur Bus
Stand and sent him to remand. He also went to the hospital and obtained the
statement of the injured witnesses who were undergoing treatment. He had
sent requisition letters under Ex.P-17, Ex.P-18 and Ex.P-20 to the Head of
Department, Forensic Science Medicine, Government Mohan
Kumaramangalam Medical College and Hospital, Salem to perform the post
mortem on the body of the deceased Vijayalakshmi, Mayil and Samraj. P.W-
17, Dr. Padmavati, Tutor of Forensic Medicine, Government Mohan
Kumaramangalam Medical College and Hospital, Salem had performed
autopsy on the body of the deceased Vijayalakshmi, Samraj and Mayil from
11.15 a.m till 2.30 p.m and issued Post-mortem certificates under Ex.P-16,
Ex.P-19 and Ex.P-21 respectively. Thereafter, the body of the deceased
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Vijayalakshmi was handed over to the Head Constable/P.W-11 Mr. George,
the body of the deceased Mayil was handed over to the Head Constable/P.W-
15 Krishnan and the body of the deceased Samraj was handed over to the
Special Sub Inspector of Police/P.W-12 Subramani with a direction to hand
them over to the respective relatives upon identification.
2.3. Upon transfer of P.W-18, the investigation was taken over by
P.W-19, the Sub Inspector of Police, Law and Order, Salem City. He had
issued requisition letter to the Regional Transport Officer to conduct
Inspection of the bus bearing Registration No. TN-30-N-1293 belonging to
State Transport Corporation. On receipt of such letter, the Motor Vehicle
Inspector/P.W-10 Kokila conducted inspection of the bus and issued
Inspection Report under Ex.P-3 wherein she had stated that the accident was
not caused due to mechanical defect. P.W-19 also recorded the statement of
the Conductor of the bus, P.W-7/Shajahan who was also one of the injured
undergoing treatment at Government Mohan Kumaramangalam Medical
College and Hospital, Salem. P.W-19 also received the Accident Register copy
of the injured victims from the Government Mohan Kumaramangalam Medical
College and Hospital, Salem. He had also sent the requisition letter to the
Chief Judicial Magistrate to record the Statement of the victims of accident as
witness under Section 164 Cr.P.C. The learned Chief Judicial Magistrate had
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nominated the learned Judicial Magistrate-V, Salem to record the statement of
the injured victims of accident under Section 164 of Cr.P.C.
2.4. On transfer of P.W-19, the investigation was taken up by P.W-20/
Mr.Udhaya Kumar, Deputy Superintendent of Police. P.W-20 recorded the
statement of the Police Officials viz., Head Constable Mr. George, Special
Sub-Inspector of Police Mr. Subramani, Head Constable Mr. Krishnan. After
obtaining legal opinion from the Assistant Director of Prosecution, he had laid
the final report before the Court of the learned Judicial Magistrate-IV, Salem.
The learned Judicial Magistrate-IV, Salem, taken cognizance of the offences
under Sections 304 (2) (three counts) and 308 (five counts) of IPC. Since the
offences are triable by the Court of Sessions, the case was taken on file as
P.R.C. No. 19 of 2015 and summons were issued to the Accused. On
appearance of the Accused, copies of the prosecution documents were
furnished under Section 207 of Cr.P.C and the case was committed to the
Court of the learned Principal Sessions Judge, Salem. The learned Principal
Sessions Judge, Salem, on receipt of the records in P.R.C. No. 19 of 2015, had
numbered the case as S.C. No.301 of 2015 and made it over to the Court of the
learned III Additional Sessions Judge, Salem and bound over the Accused to
the said Court. On appearance of the Accused, the learned III Additional
Sessions Judge, Salem after hearing the Prosecution and the defence, framed
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charges for the offences punishable under Section 304 (2) of IPC (3 counts)
and Section 308 IPC (5 counts). The Appellant denied the charges and claimed
to be tried. Therefore, trial was ordered. To prove the charges against the
Accused, the Prosecution examined 20 witnesses as P.W-1 to P.W-20, marked
26 documents as Ex.P-1 to Ex.P-26 and 2 material objects as M.O-1 and M.O-
2.5. On completion of the Prosecution evidence, the Accused was
examined regarding the incriminating evidence available against him through
the deposition of P.W-1 to P.W-20 and the documents under Ex.P-1 to Ex.P-
26 and material Objects M.O-1 and M.O-2. The Accused denied the
incriminating evidence recorded against him. The Accused examined one
Rajamanickam, Conductor of the TNSTC Bus, who is alleged to have travelled
in the same bus on the fateful day, as D.W-1.
2.6. Upon completion of the evidence, after hearing the Prosecution
and the learned Counsel for the defence, the learned III Additional Sessions
Judge, Salem by judgment dated 25.04.2017 in S.C. No. 301 of 2015
convicted the Accused for offence under Section 304 (2) of IPC (3 counts) and
308 of IPC (5 counts) and sentenced him to undergo rigorous imprisonment of
10 years and fine Rs.1,000/- for each count, in default, to undergo 6 months
simple imprisonment for the offence under 304(2) of IPC. For the offence
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under Section 308 of IPC (5 counts), the Accused was sentenced to undergo 7
years rigorous imprisonment and fine of Rs.500/- for each count, in default, to
undergo simple imprisonment of 3 months. The period of detention already
undergone in detention was set off under Section 428 of the Cr.P.C.
2.7. Aggrieved by the judgment of conviction recorded by the learned
III Additional District and Sessions Judge, the sole Accused had preferred this
Criminal Appeal.
3. The learned Senior Counsel for the Appellant submitted that
framing of the charges by the learned III Additional Sessions Judge, Salem
itself was erroneous. It is a case of simple traffic accident which ought to have
been tried by the Court of learned I Class Judicial Magistrate as per Schedule-
II of the Cr.P.C which warrant maximum punishment of 2 years. Whereas the
charges were framed as though the Driver of the State Transport Corporation
Bus had wantonly indulged in the act which will result in death of the
passengers of the bus and framed charges as though it attracted the offence
under Sections 304(2) and 308 of IPC. There is specific provisions in the
Indian Penal Code that traffic accidents attract the offence under Section 304
(a) of IPC and if injuries are caused, it will attract the ingredients of Sections
337 and 338 of IPC. While so, the learned III Additional Sessions Judge, had
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framed the charges as though, the Accused had committed the grave crime in
the course of his regular job of driving the vehicle. Based on the charges
under Sections 304 (2) and 308 of IPC, the Accused had been convicted and
sentenced to undergo the period of imprisonment for 10 years of Rigorous
Imprisonment and 7 years of Rigorous Imprisonment respectively which is
excessive and harsh.
4. The learned Counsel for the Appellant also submitted that the
Appellant is the Driver of the State Transport Corporation Bus bearing
Registration No.TN-30-N-1293. As per the case of Prosecution and as per the
charge sheet, the Accused drove the bus on the fateful day on Harur-Salem
Road. While the bus was proceeding, the passengers in the bus were alleged to
have warned him not to drive speedily, for which, he is alleged to have
retorted ‘I will drive like that only, you be seated’. When the bus was nearing
Veeranam SRS Engineering College, by 2.30 p.m. on 04.03.2014 it crashed on
the road side and hit a tamarind tree resulting in accident. In the accident three
passengers viz., Vijayalakshmi, Samraj and Mayil died instantaneously and
other passengers viz., Angamuthu, Saranya and Radha were injured.
Shajahan, the Conductor of the bus was also injured. They were examined as
P.W-6, P.W-7, P.W-8 and P.W-9. The injured Angamuthu is alleged to have
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given a complaint orally while he was under treatment immediately after the
accident which was recorded by the Trainee Sub Inspector of Police,
Veeranam Police Station under Ex.P-14, Complaint. However, the
complainant Angamuthu was not examined at all by the prosecution. The Sub
Inspector of Police Chinnappan was examined as P.W-16. He had admitted
that the handwriting in the FIR was not that of his. He had admitted that the
FIR was sent to the Court of the learned Judicial Magistrate and it reached the
Court of the learned Judicial Magistrate IV, Salem on 05.03.2014 at 7.30 a.m.
The witness Saranya had spoken that she had requested the Driver to drive the
vehicle carefully for which he had retorted ‘I will drive the vehicle rash and
negligently'. But no other witnesses had spoken the same. Based on the
evidence of Saranya, it cannot be considered that the Driver drove the vehicle
rash and negligently. One other witness Radha had spoken that the Accused
while driving the Vehicle was talking on the mobile phone but there is no
evidence before the Court regarding such averments. The defence of the
Accused was that a sand-laden lorry was coming from the opposite direction
and a two wheeler rider overtaken the lorry and came in front of the lorry
towards bus. To avoid hitting the two wheeler rider, the Driver of the Bus,
steered the vehicle towards left from the middle of the road, thereby he lost
control of the vehicle. Thus, the accident had occurred only when the
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Appellant attempted to avoid an accident. The Appellant has not wantonly
caused the accident because of his rash and negligent driving resulting in death
of three persons and injuries to the witness P.W-6, P.W-7, P.W-8 and P.W-9.
5. The learned Senior Counsel for the Appellant submitted that the
definition of Accident is mentioned under Sections 337, 338 and 304(a) of
IPC. For all offences attracting Sections 337, 338 and 304(a) of IPC, charges
have to be framed as though, the Driver of the vehicle had knowledge that the
passengers of the bus had risk of death when driving the vehicle attracting
Section 304 (2) and Section 338 of IPC which is erroneous. The learned III
Additional Sessions Judge failed to consider the evidence in its proper
perspective. The investigation was carried out by three Officers, P.W-18-Saroj
Kumar, the then Assistant Superintendent of Police (Trainee), Salem Rural
Sub Division as well as P.W-19-Murugasamy, the then Sub Inspector of
Police, Salem Rural and his successor P.W-20 Udhaya Kumar, the then
Deputy Superintendent of Police. They had not examined the person who had
given the complaint based on which the FIR under Ex.P-15 was registered.
The learned III Additional Sessions Judge failed to consider the evidence of
Conductor of the bus who had travelled in the same bus as a passenger D.W-1
and rejected the evidence thereby the vital piece of evidence in favour of the
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Accused was lost. D.W-1 withstood his testimony in the cross examination by
stating that there was a sand-laden lorry coming from opposite towards the bus
and a two wheeler rider was over taking the lorry and came in front of the lorry
towards the bus. In order to avoid hitting the two wheeler, the Driver of the
bus steered towards left which resulted in the accident. At the time of accident,
how many passengers were in the bus, out of which how many of them were
injured, the correct figures were not placed before the learned III Additional
Sessions Judge by the Investigation Officers. There are evidence before the
trial Court through P.W-6, P.W-7, P.W-8 and P.W-9 that the Police reached
the place of accident immediately and shifted the injured through the bus
belonging to SRS Engineering College to Government Mohan
Kumaramangalam Medical College and Hospital, Salem. While so, they had
deliberately suppressed the material facts thereby not showing the number of
passengers at the time of accident. As per the Prosecution case, the bus hit on
the road side tamarind tree and stopped. Whereas P.W-6 Saranya in her
deposition stated that bus hit two tamarind trees. Ex.P-1 Observation Mahazar
claims that the bus hit two trees. However, the rough sketch under Ex.P-22
shows only one tamarind tree. P.W-18, the then Assistant Superintendent of
Police, Salem Rural in his evidence had deposed that he prepared Ex.P-1 and
Ex.P-2 in the presence of P.W-1 and P.W-2 and prepared the sketch between
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7.00 to 8.30 p.m.
6. A bare perusal of Ex.P-1 and Ex.P-2 would show the signature on
the blank paper and contents were obtained and in the space available it was
filled up later. Ex.P-1 and Ex.P-2 were prepared on 04.03.2014, but it reached
the Court only on 27.07.2015. Ex.P-2 does not speak about any seizure of
blood stained cloth. Whereas P.W-18 Investigation Officer claims he had
seized blood stained cloth, which creates doubt in the minds of the Court that
the records are fabricated.
7. The Accused had examined the Conductor who travelled in the
same bus as a passenger. His evidence was rejected by the learned III
Additional Sessions Judge that he had not produced any ticket. It is to be
noted that the Conductor and Driver of the State Transport Corporation Bus
are furnished with Passes so they can travel without ticket. Therefore, the
observations that D.W-1 did not furnish ticket for his travel cannot be
sustained.
8. It is the contention of the learned Senior Counsel for the
Appellant that none of the witnesses P.W-6, P.W-8 and P.W-9 furnished
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tickets to show that they were passengers in the bus. For a case under Section
304 (a) of IPC, it is not sufficient to prove the negligence is the cause of
accident. Prosecution has to prove guilt of the Accused beyond reasonable
doubt. The principle of res ipsa loquitur cannot be pressed in service to prove
the guilt of the Accused in a criminal case. In support of his contention
regarding the principle of res ipso loqutur, the learned Counsel for the
Appellant relied on the unreported decision of this Court dated 23.09.2015 in
Crl.A.No.371 of 2010 in the case of C.Nagaraj vs. The State of Tamil Nadu
represented by the Inspector of Police, Watrap Police Station,
Virudhunagar District wherein this Court had observed as under:
“11.Not only on the ground of delay in despatching the FIR to
the Court but also on the admission made by PW1, the doubt regarding
the FIR becomes very strong. PW1 has categorically stated in her cross
examination that within a short while of the occurrence, the Inspector
of Police and the Sub Inspector of Police came to the place of
occurrence and she narrated the entire occurrence to the Police at her
house and the same was reduced to writing, in which she put her
signature and then, she went to the Police Station and they enquired
her. Whereas PW13 in his cross examination has categorically denied
the same and has stated that PW1 gave the complaint only at the Police
Station. Thus, the earliest information given to the Police has been
suppressed by the prosecution. Thus, the defence has established that
the original complaint in this case has been suppressed and in its place,
Ex.P1 has been substituted and that is the reason why there had
occurred 9 hours delay in the FIR reaching the hands of the learned
Magistrate. In our considered view, this is fatal to the case of the
prosecution.
12. As we have already pointed out, the presence of PWs.1 to 3
outside the house at the crucial point of time is doubtful. The learned
counsel for the Appellant would submit that only in the morning, the
dead body would have been noticed and thereafter only Ex.P1 would
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have been drafted and that is the reason why, it has reached the hands
of the Court at 12.10 p.m. We find some force in the said argument of
the learned counsel. These doubts are very vital in the case. Of-course,
the prosecution has proved the motive. Admittedly, there was enmity
between the deceased and the accused on account of the fact that the
deceased had developed illicit intimacy with the wife of the accused,
but, the motive is always a double edged weapon. Simply because the
motive has been established by the prosecution, one cannot rush to the
conclusion that actuated by the said motive, the accused had committed
the murder of the deceased. It is possible to infer that because of the
said motive, out of suspicion, the accused has been implicated in the
case. This possibility also cannot be ruled out by the prosecution.
13. Apart from that, the learned counsel for the Appellant
pointed out that PW11 - photographer has stated that he took
photographs inside the house, when the whole occurrence was outside
the house. It is not explained to the Court as to why the photographs
were taken inside the house. Going by the nature of the evidence
available, we have our own doubts in the prosecution case. The doubts
are reasonable and they have not been obviated by the prosecution. For
these reasons, the Appellant is entitled for the benefits arising out of the
said doubts. Accordingly, the Appellant is entitled for acquittal.'
9. The learned Senior Counsel for the Appellant relied on another
ruling reported in (1998) 8 SCC 493 in the case of State of Karnataka vs.
Satish wherein the Hon'ble Supreme Court had held as follows:
“4. "..........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......."
5. " There being no evidence on the record to establish "negligence"
or "rashness" in driving the truck on the part of the respondent, it
cannot be said that the view taken by High Court in acquitting the
respondent is a perverse view".........
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10. He further submitted that P.W-6, P.W-7, P.W-8 and P.W-9 were
eye witnesses. They only speak about vehicle driven in speed. For argument
sake, even if the case is accepted, merely driving the bus in a fast or with
required speed alone will not result in accident. Driving the vehicle in high
speed also will not result in accident. It must be proved that the vehicle was
driven in a rash and negligent manner endangering the public safety, which
was not taken note of by the trial Judge. In this context, the learned Senior
Counsel for the Appellant relied on the decision of the Hon'ble Supreme Court
reported in (1998) 8 SCC 493 in the case of State of Karnatak vs. Satish
wherein it is held as follows:
“Merely because the truck was being driven at a high speed does not speak 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 meat by
“high speed” in the facts and circumstances of the case. Criminality is not to
be presumed, subject of course to some statutory exceptions. There is no
such statutory exception plead 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 being no
evidence on the record to establish “negligence” or “rashness” in driving the
truck on the part of the respondent, it cannot be said that the view taken by
the High Court in acquitting the respondent is a perverse view. Hence, the
same calls for no interference.”
11. It was stated that the evidence of the Prosecution does not
establish the guilt of the Accused beyond reasonable doubt. The learned
Senior Counsel for the Appellant relied on the reported ruling of this Court in
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MANU/TN/5243/2022 in the case of B.Karthik vs. State wherein this Court
relied on the decision of the Hon'ble Supreme Court and held as under:
“8. The principle of res ipsa loquitur is only a rule of evidence to determine
the onus of proof in actions relating to negligence. The said principle has
application only when the nature of the accident and the attending
circumstances would reasonably lead to the belief that in the absence of
negligence the accident would not have occurred and that the thing which
caused injury is shown to have been under the management and control of the
alleged wrong doer.
9. A rash act is primarily an over hasty act. It is opposed to a deliberate
act. Still a rash act can be a deliberate act in the sense that it was done without
due care and caution. Culpable rashness lies in running the risk of doing an act
with recklessness and with indifference as to the consequences. Criminal
negligence is the failure to exercise duty with reasonable and proper care and
precaution guarding against injury to the public generally or to any individual
in particular. It is the imperative duty of the Driver of a vehicle to adopt such
reasonable and proper care and precaution.”
12. The learned Senior Counsel for the Appellant also relied on the
decision of the Hon'ble Supreme Court of India in Prabhakaran vs. State of
Kerala in Appeal (Crl) No. 775 of 2005 dated 21.06.2007 wherein it has been
observed as follows:
“19. When the factual scenario of the present case is analysed, it is crystal
clear that the appropriate conviction would be under Section 304 A IPC and
not Section 304 Part II IPC. Conviction is accordingly altered. The
maximum sentence which can be imposed for offence punishable under
Section 304A is two years with fine or with both. The custodial sentence,
therefore, is reduced to the maximum i.e. two years.”
13. The learned Senior Counsel for the Appellant further relied on the
decision of the Hon'ble Supreme Court of India in the case of Abdul Ansar vs.
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State of Kerala reported in 2023 SCC OnLine SC 775 wherein it has been
observed as follows:
“16. In the circumstances, we are of the view that the Appellant is guilty of
the commission of an offence punishable under Section 338 of IPC. There
will not be any prejudice caused to him as the Appellant had sufficient notice
of allegations of negligence against him during the trial. Hence, omission to
frame charge under Section 338 of IPC will not be fatal. For the offence
punishable under Section 338 of IPC, the period of imprisonment can extend
to two years. As noted earlier, the incident is of 2005. So far, the Appellant
has undergone the sentence for only 36 days. In our view, considering the
fact that the incident is of the year 2005 and other factual aspects, a sentence
of simple imprisonment for six months will be an appropriate punishment in
the facts of the case. As per the directions of the High Court, a sum of
Rs.50,000/- had been deposited by the Appellant. Looking at the serious
injuries sustained by PW-1 at the young age of 13 years, she must be
adequately compensated. The High Court had imposed a fine of Rs. 50,000/-
which amount has been deposited. In addition to the sum of Rs.50,000/-
already deposited, we propose to direct the Appellant to deposit an additional
amount of Rs.25,000/-.
17. Hence, impugned judgments are modified insofar as the Appellant–
accused No.2 is concerned. Instead of Section 338 of IPC, he is held guilty of
an offence punishable under Section 338 of the IPC. The Appellant shall
undergo simple imprisonment for a period of six months. He is entitled to
claim a set-off for the period of incarceration already undergone.”
14. The learned Senior Counsel for the Appellant further submitted
that P.W-7 Conductor of the bus had clearly stated that the width of the road is
25 feet only near the scene of the accident and there were tamarind trees on
both sides and vehicles also came from the opposite side. Ex.P-1 observation
mahazar indicates the width of the road as 25 feet. The breadth of the bus
would be 8 feet minimum. When the vehicle approaches from the opposite
side, the Driver has to maintain a minimum distance of 3 feet to avoid
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collision. The injured witnesses had deliberately come to Court with a parrot-
like fashion that the vehicle was running in a high speed. It is impossible for
any Driver to drive the vehicle in a very slow manner, as claimed by the
witness. Also the witness in their cross examination admitted that near the
accident spot, there was barricade put by the Forest Department and in which
case, the vehicle could not have been driven with greater speed, as alleged.
The Prosecution had not produced sufficient evidence to attract the provision
of Sections 304 (2) and 308 IPC. Even necessary proof for offence under
Sections 304(a), 379, and 338 IPC was not produced by the Prosecution. The
evidence of the injured witnesses P.W-6, P.W-7, P.W-8 and P.W-9 are totally
unreliable in the absence of neutral witness. The Ambulance Driver who took
the injured to the Hospital had not been examined. The Police Officers who
were present in the scene of occurrence immediately after the occurrence had
not been examined. The delay in FIR reaching the Court creates suspicion of
the original version as to the manner in which the accident occurred. Further,
the Complainant had signed in a blank paper and the minute details of the
injuries of the witnesses had been artificially incorporated. The person who
had given the complaint was not examined by the prosecution. Ex.P-1 Ex.P-22
had been prepared between 7 and 8 p.m. on the date of the occurrence on
04.03.2014 whereas it reached the Court on 27.07.2015 and it creates
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suspicion.
15. The defense witness D.W-1 had probabilized the case of the
Accused which had been rejected on the ground that he is known to the
Accused and he had not produced any bus ticket to prove the case. The
Prosecution has to prove the case beyond reasonable doubt. The Accused can
succeed if he probabilises his defence on the test of preponderance of
probabilities. Therefore, the learned Senior Counsel for the Appellant seeks to
set aside the judgment of conviction and sentence of imprisonment recorded
by the learned III Additional Sessions Judge, Salem in S.C.No. 301 of 2015,
dated 25.04.2017.
16. Per contra, Mrs. G.V. Kasthuri, the learned Additional Public
Prosecutor vehemently objected to the line of arguments of the learned Senior
Counsel for the Appellant stating that it is not a simple accident as that of
other accidents on the road. There are evidence through the injured witnesses
about the Appellant driving the vehicle in a rash and negligent manner inspite
of requests made by the passengers of the bus to drive the vehicle normally.
The passengers in the bus felt uncomfortable with the manner in which the
vehicle was driven at an abnormal speed. Therefore, they requested the Driver
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of the bus to drive the vehicle carefully, for which he retorted, 'I will drive the
vehicle as I please, Are you scared of death, you go and sit''. As apprehended
by the passengers of the bus, three persons died on the spot and others suffered
injuries. The factum of accident is not denied by the Appellant. It was the
Appellant who was on the wheels when the accident occurred. The defence of
the Appellant is that in order to avoid hitting a two wheeler, he swerved the
vehicle to the extreme left. While attempting to avoid an accident, the
Appellant has caused the death of three passengers and several others crippled
with various range of injuries. Taking note of such admission on the part of
the Appellant, the trial Court rightly convicted him. Also there is evidence
that the Driver, while driving the vehicle, was speaking on mobile phone
unmindful of the safety of the passengers. Thus, the Appellant did not exercise
caution and was not attentive while driving the bus. Due to his reckless
driving, the bus had hit a tamarind tree on the left side of the road. The impact
of the accident was such that Samraj, aged 22 years, a passenger who travelled
in the bus, suffered grave injury and died instantaneously as his head was
detached from his body. The post mortem report of Samraj produced under
Ex.P-21 also indicates that there was decaptitation of head at the level of C4 to
C6 cervical vertebra, the decapitated head was attached with the trunk with the
tag of skin.
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17. Referring to the statement under Section 164 Cr.P.C recorded
from the injured witnesses, the learned Additional Public Prosecutor
contended that during trial the witnesses have clearly spoken about the Driver
of the vehicle driving carelessly and negligently. The passengers inside the bus
felt that they were uncomfortable, they were scared of the way the Driver
drove the bus risking their life and limb. That much is available from the
evidence of P.W-6 to P.W-9. Apart from the above, P.W-7, Conductor of the
very same bus, who was in charge of the journey himself suffered fracture. He
claims that after the accident, he lost consciousness and when he woke up he
was in the Hospital bed. He suffered fracture in his hands. The evidence of the
Conductor of the bus on duty is available through P.W-7 Shajahan. He had
not stated about the vehicle coming from the front or two wheeler rider as
portrayed as defence by the Appellant. None of the passengers had spoken
about the two wheeler rider or sand-laden lorry approaching from the opposite
side as claimed by D.W-1. D.W-1 was an introduced witness who is a friend
of the Accused.
18. The learned Additional Public Prosecutor invited the attention of
this Court to the evidence of P.W-6 Saranya, P.W-7 Shajahan, the duty
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Conductor who travelled in the bus, P.W-8 Radha and P.W-9 Sabapathy.
P.W-9 is the grandson of P.W-8 Radha. P.W-8 Radha had also spoken about
the rash and negligent driving. P.W-6 Saranya had spoken that she was seated
on the left side of the bus, second seat from the front foot board. Therefore,
she could see the road. She could also see the way the Driver drove the
vehicle. She requested him to drive the vehicle carefully for which he retorted,
'I’ll drive the vehicle as I please. You be seated'. P.W-8 had stated that she
suffered fracture in the neck and injuries on her head and left hand.
19. P.W-7 Conductor of the bus had clearly stated in his deposition
that he too suffered fracture. He also stated that passengers complained him
that the Driver was driving the vehicle in a rash and negligent manner. He also
requested the Appellant to drive the vehicle carefully. He suffered fracture in
his left hand and clavicle bone fracture and also fracture on the face. He had
withstood the cross examination.
20. P.W-13 Dr.Arun in the Casualty Ward stated that he could not
give wound certificate as all the injured passengers were discharged from the
hospital against medical advice. He had clearly stated that after this accident
he had not joined the duty. The accident took place on 04.03.2014. He was
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examined as witness on 28.09.2016. Therefore, the charge framed by the Court
cannot be found fault. It is a serious case where the Driver knowing fully well
of the consequences, ignoring the request of the passengers, had driven the
vehicle wantonly in a rash and negligent manner. There is no specified
definition for rash and negligent driving.
21. The learned Additional Public Prosecutor contends that if any
untoward incident takes place after exercise of caution or if the vehicle met
with an unfortunate incident or the accident is caused due to mechanical
defects in the vehicle, it will be beyond the control of the Driver of the vehicle.
In such event, the Driver of the vehicle can be prosecuted for having
committed the offence under Sections 304 (a) or 337 or 338 of IPC. Here it is
not the case. The passengers on board the bus found out that the Driver was
not driving the bus carefully considering the safety of the passengers. The
Appellant ignored the requests made by the passengers of the bus to drive it
slowly. That much is available in the statement of the victims of the accident
who suffered at the hands of the Accused. The Accused himself is responsible
for the death of an youth aged 22 years whose head was severed from his body
due to the sudden impact of the accident. Therefore, the framing of charge
under Sections 304(2) and 308 of IPC is found proper.
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22. The learned Additional Public Prosecutor further submitted that
the reported ruling cited by the learned Counsel for the Appellant will not help
the case of the Accused. Those are cases where there was negligence beyond
control of the Driver as well as the Conductor. Here the Conductor is in charge
of the journey and he is also responsible. Based on the request of the
passengers, he had requested the Driver to drive the vehicle carefully. Still the
Appellant proceeded as per his own whims and fancies resulting in the
accident. There are evidence through the injured witnesses who claimed that
the accident was caused by the rash and negligent behaviour of the Driver.
There is evidence through the medical evidence, evidence of the post mortem
Doctor, evidence through the witness in the inquest under Ex. P-23, Ex. P-24
and Ex.P-25. They had opined that the death was due to accident caused by the
Appellant by driving the vehicle negligently. The impact of the accident
resulted in detachment of head from the body of an young 22 year old Samraj
itself would stand testimony to the speed at which the Appellant drove the
vehicle. Therefore, the submission of the learned Senior Counsel for the
Appellant that it is a simple case of accident which have the ingredients of
Section 337, 338 and 304(a) of IPC is not acceptable in the peculiar facts of
this case. It is to be noted that the passengers in the bus will not be giving their
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place of residence and address to the Conductor in the trip sheet. The argument
of the learned Counsel for the Appellant that the trip sheet was not produced
before the trial Judge to appreciate the facts fairly will not hold good. The
statement of those who were injured and admitted in the hospital, were
recorded by the Investigation Officers and those details were available. Those
witnesses had spoken to about the rash and negligent driving of the Driver.
The Investigation Officer had taken care to record the 164 Cr.P.C statement
before the learned Judicial Magistrate as it was a grave accident caused only
due to rash and negligent driving which is different from other cases.
23. The learned Additional Public Prosecutor submitted that in the
cross examination of the witnesses they had admitted they had not sought help
from Police Officials by contacting the emergency numbers to prevent the
Driver from driving the vehicle rash and negligently. That will not help the
Appellant to wriggle out of this case. The Appellant is not a trainee Driver.
The Appellant is given training to drive bus by the State Transport
Corporation. Ignoring those training and the responsibility vested in him, he
had driven the vehicle as though he is driving the two wheeler. The injured
passengers came forward to let in evidence. The witnesses P.W-1, P.W-2,
P.W-3 and P.W-4 are from the nearby place of accident who came to the scene
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of the accident to assist the passengers and the Investigation Officers. The
claim of the Appellant that the Ambulance Driver was not examined cannot be
accepted or it will not in any manner weaken the case of the prosecution. The
statement of the witnesses recorded under 164 Cr.P.C is only to inspire
confidence of the Investigation Officer that the investigation is proceeded on
the right track. Considering the grave offences, the investigation was carried
out by Assistant Superintendent of Police (Trainee) and continued by the
Deputy Superintendent of Police, Salem Rural culminating and laying of final
report under Section 304(2) of IPC. Therefore, the claim of the learned Senior
Counsel for the Appellant will not hold good. The Appeal lacks merit and is to
be dismissed.
24. In support of her contention, learned Additional Public Prosecutor
relied on the ruling of the Hon'ble Supreme Court reported in (2020) 14 SCC
184 in the case of Bhagwan Singh vs. State of Uttarakhand wherein the
Hon'ble Supreme Court had observed as follows:
“13. ... These provisions also deal with cases where there is no
intention of either causing death or a bodily injury which is ordinarily
sufficient to cause death. The absence of intention to cause death or bodily
injury which is in the ordinary course of nature likely to cause death is,
therefore, not conclusive. What is required to be seen is whether the act is
one where the offender must be deemed to have had the knowledge that he
was likely, by such act, to cause death.
18. Resultantly, we hold that the Appellant had the requisite
knowledge essential for constituting the offence of ‘culpable homicide’
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under Section 299 and punishable under Section 304 Part-2 of IPC. He is
thus held guilty under Section 304 Part-2and not under Section 302 of IPC.
On the same analogy, the Appellant is liable to be punished for ‘attempt to
commit culpable homicide’ not amounting to murder under Section 308, in
place of Section 307 of IPC for the injuries caused to the other three victims.
To this extent, the Appellant’s contentions merit acceptance.”
Point for consideration:
Whether the judgment of conviction and sentence dated
25.04.2017 passed in Sessions Case No.301 of 2015, by the
learned III Additional Sessions Judge, Salem is to be set aside
as perverse?
25. Heard Mr. R.Srinivas, the learned Senior Counsel for the
Appellant for Mrs. Mythili Srinivas and the Mrs. G. V. Kasthuri, learned
Additional Public Prosecutor for the Respondent/State. Perused the evidence
of the prosecution P.W-1 to P.W-20, the documents marked on the side of the
Prosecution as Ex.P-1 to Ex.P-26, the evidence of D.W-1 and the judgment of
the learned III Additional Sessions Judge, Salem in S.C.No.301 of 2015, dated
25.04.2017.
26. On perusal of the ruling relied by the learned Additional Public
Prosecutor reported in (2020) 14 SCC 184 in the case of Bhagwan Singh vs.
State of Uttarakhand, it was a case where the father of the bride groom on the
previous date of marriage is alleged to have indulged in a quarrel when the
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marriage procession reached the house of the bride groom. The father of the
bridegroom suddenly fired celebratory gunshots from licensed gun pointing
towards roof and pellets hit five persons standing in the courtyard and the
Injured were taken to hospital where two of them succumbed to their injuries.
The Trial Court convicted the father of the bridegroom for offences under
Sections 302 and 307 of IPC based on testimonies of eye witnesses and injured
witnesses which was upheld by the High Court holding that the deceased
victims were present there in order to participate in marriage celebrations,
which suggests that neither they nor their families had any animosity with the
Appellant (father of the bridegroom). Similarly P.W-3 (Complainant), too had
no axe to grind against Appellant. Eyewitness account further reveals that
shots were fired towards roof and not aiming at any of the victims. It is thus
difficult to accept that Appellant had any intention to kill deceased persons.
Further, version of eyewitnesses completely belies defence story, that
Appellant was only holding licensed gun, an a ball thrown by children, who
were playing with it, struck gun, causing accidental firing – Otherwise also, it
does not appeal to common sense, that a ball would strike gun in Appellant's
hand resulting in an undesigned firing – Unless safety lock of gun was moved
forward, gun would not go off automatically. Even if its but was hit by a play-
ball – Hence, Appellant's attempt to shelter behind Section 304-A IPC is thus
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exercise of futility and is liable to be rejected. The conviction under Section
302 of IPC was modified by the Hon'ble Supreme Court invoking Section 304
Part-2 of IPC and Section 307 of IPC altered to Section 308 of IPC. Sentence
of life imprisonment awarded to Appellant under Section 307 of IPC is
reduced to 10 years Rigorous Imprisonment and sentence awarded to him
under Section 307 of IPC is substituted with Section 308 of IPC, without any
alteration in fine of Rs.20,000/- imposed by trial Court.
27. As per the submission of the learned Additional Public
Prosecutor, here is a case where the Accused/Appellant as Driver of the Tamil
Nadu State Transport Corporation Bus had to drive the vehicle considering
the safety of the passengers who were seated inside the bus. The victims of
this accident are none other than the passengers of the bus. There is no
specific explanation for rash and negligent driving. Here the way the Driver
drove the vehicle caused scare, fear, apprehension in the minds of the
passengers. Therefore, they requested the Driver to drive the vehicle carefully.
Instead of heading their advice, he had retarded that “I will drive the vehicle as
I like. You be seated in your seats”. This shows that the Appellant had scant
regards for the safety of the passengers. This accident is very different from
normal accidents that we come across on the road. The way the Driver drove
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the vehicle itself caused fear in the minds of the passengers prompting them to
request him to drive the bus carefully. They apprehended that he will cause
accident by the way he drives the bus.
28. The defence Counsel before the trial Court had in the cross-
examination of the witnesses P.W-6, P.W-7, P.W-8, P.W-9 had put a
suggestion, whether any of the passengers had given emergency message to
any authorities to stop the bus from being driven in a rash and negligent
manner by the Driver. The witnesses had answered that they had not informed
any one. At the same time, it is to be noted that they had reported this to the
Conductor of the bus who is responsible for the safe transport of the
passengers. He too as a witness P.W-7 had in his evidence stated that based
on the complaints of the passengers in the bus, he also advised the Driver to
drive carefully. The Conductor of the bus clearly stated that after this
accident, he had not at all attended his job for two years as he had suffered
fracture in his hands. He was a Conductor for twenty years. After two years
of the accident only he was examined as a witness before the Court. As stated
by the defence witness, another Conductor who claims to have travelled in the
bus on the fateful day deposed in support of the defence of the Accused that
the two wheeler rider came in front overtaking a sand laden lorry approaching
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from the opposite side near the place of the accident where the width of the
road is 25 feet. Therefore, to avoid hitting the two wheeler rider the Driver
swerved to the left resulting in this accident is unbelievable. He is an
introduced witness and his evidence cannot be believed. None of the
passengers injured in the accident specifically P.W-6 Saranya claims that she
was seated in the second seat near the foot board on the left side behind the
Driver seat and she has not witnessed any two wheeler or sand laden lorry
coming opposite to the bus at the relevant point of time. If that be the case,
she could have seen such occurrence through the windscreen of the bus or
P.W-1 and P.W-2 who came rushing to the site of the accident from the
vicinity of the accident hearing the cries of the victim could have stated so.
They too had not spoken about the Driver of the bus swerving left to avoid
hitting the two wheeler rider.
29. For the sake of argument, the two wheeler rider had driven
overtaking the sand laden lorry approaching from the opposite side towards
the Tamil Nadu Transport Corporation bus, had the Appellant driven the bus
carefully and cautiously observing safety rules to protect the passengers of the
bus, he would have stopped the vehicle or slowed down the vehicle in which
case the resultant loss will be minimal. Here the left side of the bus was
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damaged after hitting the tree. The impact was such that the head of a
passenger aged 22 years Samraj was severed from the body. That shows the
extent of rash and negligent driving with which the Appellant drove the bus.
30. The ruling cited by the learned Counsel for the Appellant in 2023
SCC OnLine SC 775 in the case of Abdul Ansar vs state of Kerala, cannot be
applied to this case as the facts are different. That was the case where the
Conductor of the Bus was negligent in giving signal to the Driver of the bus to
proceed, when a student was boarding the bus. Her one leg was in the
footboard and another leg was hanging. She lost balance and felt down on the
road. The left rear wheel of the bus crashed her leg resulting in her death. The
facts of the case will not be applicable to the facts of that case on the simple
ground that the statement of the passengers inside the bus P.W-6, P.W-8 and
P.W-9 is confirmed or corroborated by the conductor of the bus, P.W-7
Shajahan.
31. In the ruling in Prabhakaran vs. State of Kerala a boy aged 10
residing in a hostel of Tribal Welfare Department was run over by bus driven
by the Appellant in the middle of the road. The School children crossing the
road in a queue, they raised their both hands indicating to the vehicles coming
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from both side of the road to stop and to permit them to cross the road. The
Driver of the bus ignoring the raising of hands by the children without
stopping the bus proceeded thereby the student was crushed under the wheels
of the bus. Inspite of passengers in the bus crying aloud to stop the bus, the
bus was driven in a high speed resulting in the death of children. The Driver
was charged for the offence under Section 302 IPC. The trial Court found that
there was no intention to kill the boy. Therefore after trial, the Court convicted
the Accused for the offence 304(2) and fine of Rs.50,000/- was imposed.
When the case reached the high Court, the High Court confirmed the
conviction by trial Court. When the Accused filed further Appeal before the
Supreme Court, the Supreme Court confirmed the conviction and reduced the
sentence of imprisonment to 5 years.
32. Here, the facts are different. The Driver of the bus due to rash and
negligent driving, inspite of warning from the passengers of the bus to reduce
the speed, due to rash and negligent driving, dashed the bus against the road
side tree, due to which the left side of the bus was damaged. The report of the
Motor vehicle Inspector confirms this and it was also corroborated by the
evidence of the injured passengers. The injured victims had given evidence
right from the time they boarded the bus and they observed the rash and
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negligent driving of the Driver particularly P.W-6 who was seated on the 2 nd
seat on the left side behind the Driver. The Conductor examined on behalf of
the defence, claims to have travelled in the same bus, is true, P.W-6 has stated
that she had not seen any vehicle from the opposite. Therefore the request of
the passengers in the bus as also the request of the Conductor of the bus was
not heeded by the Driver, resulting in the accident. Therefore, the conviction
under 304(2) and 308 is found proper.
33. On consideration of the ruling cited by both parties, the ruling of
the Hon'ble Supreme Court cited by the learned Additional Public Prosecutor
in (2020) 14 SCC 184 in the case of Bhagwan Singh vs. State of Uttarakhand
is found more proper. The rulings cited by the learned Senior Counsel for the
Appellant in (i) Crl.A.No.371 of 2010, dated 23.09.2015 in the case of
C.Nagaraj vs. The State of Tamil Nadu represented by the Inspector of
Police, Watrap Police Station, Virudhunagar District; (ii) (1998) 8 SCC
493 in the case of State of Karnataka vs. Satish; (iii) MANU/TN/5243/2022
in the case of B.Karthik vs. State; (iv) Prabhakaran vs. State of Kerala in
Appeal (Crl) No. 775 of 2005 dated 21.06.2007 and (v) Abdul Ansar vs. State
of Kerala reported in 2023 SCC OnLine SC 775 are not applicable to this case
and they are rejected.
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34. Even though FIR was registered under Sections 279, 337, 338 and
304 of IPC, P.W-20 Investigation Officer filed final report for the offence
under Section 304 (ii) of IPC (3 counts) and 308 of IPC (5 counts). As rightly
contended by the learned Counsel for the Appellant there is delay in
registration of FIR. However, for such delay, the victim of the Accident
cannot be held responsible. They had no control over the investigation
agencies for the lapses on their. The victims of the accident spoken cogently,
without any ill-will towards the Accused. There is no axe to grind against the
Accused. What they expressed as passengers inside the bus was taken note of
by the trial Court. Above all, the evidence of injured witness gains more
weightage before the trial Court. It is true that the injured victims were
discharged from the hospital as was deposed by the Doctor who treated them.
The Doctor noticed injury at the first instance and admitted them and gave
them first-aid. After first aid, they discharged only to seek better treatment in
a private hospital. That does not mean that their evidence is not acceptable or
their evidence is not of sterling quality.
35. In the light of the above discussion, the point for consideration is
answered against the Accused and in favour of the Prosecution. The judgment
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of conviction and sentence dated 25.04.2017 passed in Sessions Case No.301
of 2015, by the learned III Additional Sessions Judge, Salem, is found proper.
However, this Appeal is to be partly allowed with modification in sentence
alone.
36. During the course of arguments in this Appeal, it is stated that the
victims have filed claim petition before the Motor Accident Claims Tribunal
for the death as well as injuries suffered. If it is so, it is for the appropriate
Court to award compensation as per the law. In this appeal, this Court is not
awarding any compensation to the victims.
In the result, this Criminal Appeal is partly allowed. The judgment of
conviction dated 25.04.2017 passed in Sessions Case No.301 of 2015, by the
learned III Additional Sessions Judge, Salem, is confirmed. However, the
sentence of imprisonment alone is modified. As against the sentence of ten
years for the offence under Sections 304 (ii) (3 Counts) is modified as three
years rigorous imprisonment and seven years for the offence under Section
308 (5 counts) the Accused shall undergo a period of three years of rigorous
imprisonment. For each count there cannot be separate sentence of
imprisonment as the incident took place in the same transaction. Only fine can
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be imposed for each count and the sentence is the same irrespective of number
of persons died or injured. The sentence of imprisonment is for the same
offence for the same period. The sentences shall run concurrently. The fine
amount imposed on the accused for both the offence under Section 304 (ii) (3
counts) and 308 (5 counts) are confirmed. The period of sentence already
undergone by the Accused is set off under Section 428 of The Code of
Criminal Procedure. The learned III Additional Sessions Judge, Salem is
directed to issue warrant to the Accused so as to undergo the remaining period
of sentence ordered by this Court. The Inspector of Police, Veeranam Police
Station is directed to secure the Accused and produce him before the learned
III Additional Sessions Judge, Salem.
02.06.2025
Shl/srm
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-speaking Order
To:
1.The III Additional Sessions Judge, Salem.
2.The Inspector of Police,
Veeranam Police Station, Salem.
3. The Section Officer,
Criminal Section,
High Court of Madras.
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SATHI KUMAR SUKUMARA KURUP, J
Shl/srm
Judgment made in
02.06.2025
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