Madras High Court
Vijayan vs State By Inspector Of Police on 23 June, 2009
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:23.6.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.1389 of 2006 and M.P.No.1 of 2006 Vijayan .... Petitioner vs. State by Inspector of Police, Gomangalam Police Station, Coimbatore Distrrict ..... Respondent Petition filed under Section 397 r/w 401 of Cr.P.C. against the judgement dated 23.11.2006 passed by the Principal District and Sessions Court, Coimbatore in C.A.No.95 of 2005 confirming the judgment dated 31.1.2005 passed by the Judicial Magistrate No.II, Udumalpet, in C.C.No.123 of 2004. For Petitioner : Mr.N.Manokaran For Respondent : Mr.Hasan Md.Jinnah,APP. O R D E R
Challenging and impugning the judgement dated 23.11.2006 passed by the Principal District and Sessions Court, Coimbatore, in C.A.No.95 of 2005, confirming the judgement dated 31.1.2005 passed by the Judicial Magistrate No.II, Udumalpet, in C.C.No.123 of 2004, this criminal revision case is focussed.
2. A 'resume' of facts, which are absolutely necessary and germane for the disposal of this case would run thus:-
The police laid the police report in terms of Section 173 Cr.P.C. for the offence under Sections 279, 338(2 counts) and 304(A) IPC as against the accused. Since the accused pleaded not guilty, trial was conducted.
(b) During trial, on the prosecution side P.W.1 to P.W.12 were examined and Exs.P1 to P9 were marked. On the accused side no documentary or oral evidence was adduced.
(c) Ultimately, the trial Court convicted the accused and imposed the following sentence.
Case No. Offence Punishment imposed C.C.No.123 of 2004 338 IPC (2counts) Three months R.I. and fine of Rs.500/- for each count, in default, one month R.I. 304-A IPC One year simple Imprisonment and fine of Rs.4500/-, in default two months S.I.
(d) As against which, C.A.No.95 of 2005 was filed before the Principal Sessions Court, Coimbatore, which Court confirmed in toto the conviction recorded and sentence imposed by the lower Court.
(e) Impugning and challenging the judgements of both the Courts below, this revision is focussed on various grounds, the nitty-gritty of them would run thus:-
Both the Courts below failed to take into consideration the fact that the alleged eye witnesses have not supported the prosecution version. In fact, P.W.6's evidence is a ear say one. The evidence of D.W.1 is clear and cogent, even then both the Courts below rejected the same. Accordingly, the accused prayed for setting aside the conviction recorded and sentence imposed by the trial Court and as confirmed by the appellate Court.
3. Heard both sides.
4. The point for consideration is as to whether both the Courts below were perverse in appreciating the evidence without applying the law in proper perspective even though there was no proper eyewitness to the occurrence.
5. The learned counsel for the revision petitioner would develop his argument to the effect that the very topo sketch would exemplify and demonstrate that the lorry was proceeding from West to East, whereas, the Maruthi car driven by the deceased's husband was proceeding from East to West and it is because of the fault of the driver of the Maruthi car, the accident occurred and the driver of the Maruthi car was so rash and negligent that he drove the car and got it dashed as against the tree and caused the death of his wife, who was sitting beside him in the Maruthi car.
6. Whereas, the learned Additional Public Prosecutor would submit that there is nothing wrong in appreciating the evidence by both the Courts below.
7. The long and short of the prosecution case is that the accused was driving the lorry bearing Registration No.TNL 04 1139 from West to East along the N.H.Road and the driver of the lorry was so rash and negligent in driving it and that he came on the wrong side of the Road and dashed as against the Maruthi car, driven by the deceased's husband from East to West and caused the accident.
8. It is clear from the evidence of witnesses that the lorry was expected to proceed on the Northern half of the road and not on the Southern half of the road only. But in this case, peculiarly, the lorry came on the Southern extreme of the road and that it dashed against the Maruthi car, which was expected to be on the Southern half of the road, properly. Admittedly the Maruthi car was made to go and dash against the tree, which is situated on the Southern side of the road. Hence, in these circumstances, the principle of res ipsa loquitur is applicable and accordingly, it is clear that the driver of the lorry was at fault. The driver of the lorry has not examined himself to disclose anything, which is within his knowledge, under Section 105 of the Indian Evidence Act. I am fully aware of the fact that as per the principles of criminal law, the accused is not expected to examine himself as a witness. But in the case of this nature, when the driver of the car was not at fault and the driver of the other vehicle, namely, lorry was at fault, he should have explained the special features involved in it. But by way of adding fuel to the fire, D.W.1, in his deposition detailed and delineated baselessly as though the driver of the Maruthi car drove the vehicle on the reverse direction and caused the accident. Absolutely, there is no substance in the deposition of D.W.1 and it was correctly rejected by both the Courts below. Hence, I could see no perversity or non-application of mind in appreciating the evidence by both the Courts below.
9. The learned counsel for the revision petitioner would submit that the sentence of one year imprisonment imposed under Section 304(A) is too harsh a punishment, as the driver was 55 years old and he was already in jail for some days and it may be treated as sufficient.
10. Whereas, the learned Additional Public Prosecutor would submit that in matters of offence under Section 304-A such sort of leniency cannot be shown.
11. The learned counsel for the revision petitioner would cite the following four decisions of the Honourable Apex Court.
(i) 2000(4) Crime 17(SC) Vinod Kumar vs. State of U.P. And others;
(ii) AIR 1988 SUPREME COURT 2110 Gulshan and others vs. State of Punjab;
(iii) AIR 1988 SUPREME COURT 2122 Kartar Singh vs. State of Punjab;
(iv) AIR 2001 SUPREME COURT 3210 Moti Lal vs. State of M.P.
12. I would like to point out that the ratiodecedendi of those decisions of the Honourable Apex Court should be followed by all the Courts in India. However, the above four decisions cited are not concerning the offence under Section 304-A IPC. Hence, the ratiodecedendi involved in those cases cannot be pressed into service in the facts and circumstances of this case. However, my mind is reminiscent and redolent of the following decision of the Honourable Apex Court:
(i) 2002(2) SUPREME 500 STATE OF KARNATAKA VS. SHARANAPPA BASNAGOUDA AREGOUDAR, an excerpt from it would run thus:
"6. We are of the view that having regard to the serious nature of the accident, which resulted in the death of four persons, the learned Single Judge should not have interfered with the sentence imposed by the Court below. It may create and set an unhealthy precedent and send wrong signals to the subordinate courts which have to deal with several such accident cases. If the accused are found guilty of rash and negligent driving, courts have to be on guard to ensure that they do not escape the clutches of law very lightly. The sentence imposed by the courts should have deterrent effect on potential wrong-doers and it should commensurate with the seriousness of the offence. Of course, the Courts are given discretion in the matter of sentence to take stock of the wide and varying range of facts that might be relevant for fixing the quantum of sentence, but the discretion shall be exercised with due regard to larger interest of the society and it is needless to add that passing of sentence on the offender is probably the most public face of the criminal justice system."
13. It is therefore clear that the Honourable Apex Court deprecated the practice of some of the Courts in awarding lenient punishment in accident cases under Section 304-A IPC. As such, I cannot uphold and countenance the submissions made by the learned counsel for the revision petitioner that the pre-trial detention of the accused for some days would be a sufficient punishment.
14. Taking into consideration the fact that the accused is 55 years old and that he is having family to maintain, I am of the opinion that imposing a sentence of three months Simple Imprisonment would met the ends of justice under Section 304A IPC.
15. In the result, the criminal revision case is partly allowed. The lower Court is directed to issue warrant to the revision petitioner on receipt of a copy of this order, so as to secure his presence and commit him to jail so as to make him to undergo the sentence imposed in this revision, if he has not already undergone. Any pre-trial detention was there, as per Section 428 of Cr.P.C., the same could be set off proportionately. Consequently, connected miscellaneous petition is closed.
Msk