Madras High Court
Mr.Ramesh vs State By on 18 June, 2019
Author: P.N.Prakash
Bench: P.N.Prakash
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :18.06.2019
CORAM
THE HON'BLE MR.JUSTICE P.N.PRAKASH
Crl.Rev.No.68 of 2016
Mr.Ramesh ...Petitioner
Vs
State by
The Inspector of Police
Chengalpattu Police Station,
Kanchipuram District. ....Respondent
Prayer:- Criminal Revision Petition filed under Section 397 r/w. 401 of
Criminal Procedure Code to call for the records and set aside the judgment
dated 07.01.2016 made in C.A.No.6 of 2012 on the file of learned Principal
Sessions judge, Kanchipuram District at Chengalpattu, which confirmed the
conviction and sentence imposed in a judgment dated 06.01.2012 made in
C.C.No.32 of 2006 on the file of learned Judicial magistrate No.I,
Chengalpattu and acquit the petitioners.
For Petitioner : Mr.A.Saranraj
For Respondent : Mr.G.Ramar,
Government Advocate (Criminal side)
ORDER
The deceased Samiyullah was the driver of the lorry, bearing Registration No.TN 04 U 9529 and on 28-29.11.2005, he was proceeding http://www.judis.nic.in 2 from Chennai towards Maduranthagam in NH-45 Highway. The front right side tyre of his lorry got punctured and therefore, he stopped the lorry on the road margin. Along with him, Anthony (PW.1), cleaner of the lorry was also there. The deceased Samiyullah informed his owner that the lorry suffered a puncture and therefore, the owner sent Rashath Basha (P.W.5) with a stepney. After the stepney arrived, the deceased Samiyullah, Anthony and Rashath Basha fixed the jockey to change the tyre. The deceased Samiyullah was working beneath the lorry. At that time, a Sand lorry bearing Registration No.TN21 M 6163, driven by the accused hit the stationary lorry on the back side, resulting in the stationary lorry running over Samiyullah and causing his death instantaneously.
2. In the accident, Anthony (P.W.1), the accused and Damodaran (P.W.12), the cleaner of the lorry driven by the accused, sustained minor injuries. On the complaint (Ex.P1) given by Anthony (P.W.1), a case in Cr.No.1221/2005 was registered and the printed FIR (Ex.P7) was prepared by the Police. Investigation of the case was taken over by Mohan (P.W.11), the Inspector of Police, who went to the place of occurrence and prepared the Observation Mahazar (Ex.P6) and Rough Sketch (Ex.P8). He conducted http://www.judis.nic.in 3 inquest over the body of the deceased Samiyullah and prepared the Inquest Report (Ex.P9). The body of the Samiyullah was sent to the Government Hospital, where Dr.Parasakthi (P.W.3) performed the autopsy and issued Postmortem Report Certificate (Ex.P4). Both the lorries were inspected by Palanisamy (P.W.2), the Motor Vehicle Inspector, who in his reports dated 29.11.2005 (Ex.P2) and 30.11.2005 (Ex.P3) relating to Lorry No.9529 and 6163 respectively has stated that there is no mechanical failure of brakes in both the vehicles.
3. The accused, Anthony and Dhamodharan were taken to the Government Hospital and were treated by Dr.Harigara Subramaniam (P.W.4) who issued the Accident Register copies for Anthony (P.W.1) – Ex.P5, Ramesh (accused)-Ex.P10 and Dhamodharan (P.W.12) -Ex.P.12. After treatment, the accused was produced before the Investigation Officer by his owner and he was placed under arrest and remanded to judicial custody on 30.05.2011.
4. After examining various witnesses and collecting the reports, the Investigation Officer, completed the investigation and filed the final report http://www.judis.nic.in 4 in C.C.No.32/2006 before the Judicial Magistrate No.I, Chegalpattu under Section 279, 337 (2 counts) and 304 A IPC against the accused. On appearance of the accused, the provisions of Section 207 CrPC were complied with. The Trial Court framed charges unders Section 279, 337 (2 counts) and 304 (A) IPC against the accused. When questioned, the accused pleaded no guilty.
5. To prove the case, the prosecution examined 12 witnesses and marked 12 exhibits. When the accused was examined under Section 313 Cr.P.C. with regard to the incriminating circumstances appearing against him, he denied the same. After considering the evidence and hearing either side, the Trial Court, vide judgment dated 06.01.2012 in C.C.No.32/2006 convicted and sentenced the accused as follows:
S.No. Charged for the commission of Conviction and offence Sentence
1. Sections 279 IPC 6 months Rigorous Imprisonment
2. Section 337 (2 counts) 3 months Rigorous Imprisonment
3. Section 304(A) One year Rigorous Imprisonment The sentences were ordered to run concurrently and the accused was http://www.judis.nic.in 5 granted Set off under Section 428 CrPC.
6. Challenging the conviction and sentence passed by the Trial Court, the accused filed C.A.No.6/2012 before the Court of Sessions, Kanchipuram. The Principal Sessions Judge, Kanchipuram, vide judgment dated 07.01.2016 in C.A.No.6 of 2012, set aside the conviction and sentence under Section 279 IPC. However, the Trial Court confirmed the conviction and sentence under Section 337 (2 counts) and 304 (A) IPC. Hence the accused is before this Court.
7. Heard Mr.A.Saranraj, learned counsel for the accused and Mr.G.Ramar, Government Advocate (Criminal side) for the respondent and perused the materials.
8. The learned counsel for the accused submitted that the prosecution has failed to prove that it was the accused who had driven the offending vehicle and further contended that there is no evidence to show that the accused had driven the vehicle rashly and negligently. http://www.judis.nic.in 6
9. Per contra, Mr.G.Ramar, learned Government Advocate (Criminal side) refuted the contentions.
10. Before adverting to the rival submissions, it may be apposite or it may be relevant to state here that, while exercising revisional powers under Section 397 r/w 401 Cr.P.C., this Court is required to find out, if there is any illegality or impropriety in the findings of the trial Court and the lower appellate Court warranting interference and it is not open to this Court to exercise the revisional power as a second appellate forum. In this context, it is profitable to allude to the following paragraphs in the judgment of the Supreme Court in State of Maharashtra Vs Jagmohan Singh Kuldip Singh Anand and Others, etc. [(2004)7 SCC 659.] “22.The revisional court is empowered to exercise all the powers conferred on the appellate court by virtue of the provisions contained in Section 401 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of an appellate court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be, http://www.judis.nic.in 7 “for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court”.
It is for the above purpose, if necessary, the High Court or the Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of an appellate court on the revisional court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power. (emphasis supplied)
23.On this aspect, it is sufficient to refer to and rely on the decision of this Court in Duli Chand v. Delhi Admn.[(1975) 4 SCC 649 : 1975 SCC (Cri) 663 : AIR 1975 SC 1960] in which it is observed thus: (SCC p. 651, para 5) “The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to reappreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by http://www.judis.nic.in 8 the two subordinate courts and that the finding of fact was not unreasonable or perverse.”
11. This Court carefully perused the evidence of Anthony (P.W.1) and Rashath Basha (P.W.5). P.W.1 has stated that the deceased Samiyullah was the driver of the vehicle bearing Registration No.9529 and he was the cleaner; they were proceeding from Chennai to Maduranthagam in the midnight; on the way, the right tyre got punctured; therefore, they informed their owner; a stepney tyre was sent to the place and it was brought by Rashath Basha (P.W.5); while the deceased Samiyullah was working beneath the lorry, they were hit from behind by another Sand lorry; on account of the impact, the stationary lorry ran over Samiyullah, resulting in his death.
12. The complaint given by Anthony (P.W.1) was marked as Ex.P1. The evidence of Anthony has been substantially corroborated by Rashath Basha (P.W.5). The accused did not deny the circumstances in which Samiyullah lost his life. It is his main contention that he is not the driver of the vehicle. However, the fact remains that the accused also sustained injuries in the accident along with his cleaner Dhamodharan (P.W.12) and http://www.judis.nic.in 9 both of them were treated as out-patient in the Government Hospital immediately and the copies of the Accident Registers were marked as Exs.P10 & P12. Only thereafter, the accused surrendered before the Police.
13. In the light of such overwhelming materials, this Court cannot come to the conclusion that the accused was not the driver of the offending lorry. This Court does not find any illegality or impropriety in the orders, passed by the Trial Court and the Appellate Court, warranting interference. However, Mr.Saranraj, learned counsel for the accused pleaded that the sentence may be reduced. Accepting the submission, the sentence of imprisonment for the offence under Section 304(A) IPC is reduced to Seven (7) months as against one year and the accused will be entitled to set off under Section 428 Cr.P.C.
14. With the above modification of sentence, this Criminal Revision Petition stands partly allowed. The Trial Court is directed to secure the accused and commit him to custody for undergoing the remaining period of sentence.
10.06.2019 sk http://www.judis.nic.in 10 Note:Registry is directed to immediately send the records back to the appellate Court and to the Trial Court.
Internet:Yes/No Index : Yes/No Speaking/Non speaking order To
1.The Inspector of Police Chengalpattu Police Station, Kanchipuram District.
2.The Principal Sessions Judge, Kancheepuram, Chengalpattu.
3.The Judicial Magistrate No.I, Chengalpattu.
4.The Deputy Registrar, Criminal Section, High Court.
2.The Public Prosecutor, Madras High Court.
http://www.judis.nic.in 11 P.N.PRAKASH, J.
sk Crl.Rev.No.68 of 2016 18.06.2019 http://www.judis.nic.in