Madras High Court
V.Kumar vs State Represented By on 14 September, 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.09.2010 CORAM THE HON'BLE MR.JUSTICE T.SUDANTHIRAM CRL.R.C.No.1644 of 2005 V.Kumar ...Petitioner/accused Versus State represented by The Inspector of Police Komangalam Police Station Coimbatore District. (Crime No.140 of 2003) ..Respondent/Complainant Petitions filed under Section 397 r/w 401 of Cr.P.C, against the Judgment dated 30.11.2005 in C.A.No.488 of 2004, on the file of the learned Principal Sessions Judge, Coimbatore, confirming the conviction and sentence imposed on the petitioner by the order dated 18.10.2004 in C.C.No.11 of 2004, on the file of the Judicial Magistrate II, Udumalpet. For Petitioner : Mr.C.H.Pandian For respondent : Mr.R.Muniapparaj Government Advocate (Criminal side) ORDER
The revision petitioner herein who is the accused in C.C.No.11 of 2004, on the file of the Judicial Magistrate II, Udumalpet, was convicted for the offence under Section 304(A) IPC(2counts), 279 IPC and 338 IPC (2 counts) and he was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.4500/- in default to undergo simple imprisonment for two months for each count under Section 304(A) IPC(2 counts); and sentenced to undergo simple imprisonment for one week and to pay fine of Rs.500/- in default to undergo simple imprisonment for one week under Section 279 IPC and also sentenced to undergo simple imprisonment for two weeks and to pay fine of Rs.500/- in default to undergo simple imprisonment for one week for each count under Section 338 IPC (2 counts) and the sentences of imprisonment are to run concurrently. The said conviction and sentence were confirmed by the Principal Sessions Judge, Coimbatore in C.A.No.488 of 2004. Aggrieved by the said conviction and sentence, the petitioner had preferred this criminal revision petition.
2. The case of the prosecution, in brief, is that on 01.08.2003, P.W.2 drove his Maruthi Van and he was going from Udumalpet to Coimbatore. His two sons (deceased) were sitting in front of the vehicle. His wife P.W.1 was sitting on the back seat of the vehicle. The vehicle was going near Theppampatti in the Pollachi to Udumalpet main road at about 6.00p.m. At that time, the LPG tanker lorry driven by the accused came from the western side to eastern side in a high speed and dashed against the van. Due to that impact, both the children died on the spot and P.W.1 also sustained injuries. P.W.1 gave complaint Ex.P.1 to the Police station. P.W.9 Inspector of Police investigated the case and laid the final report.
3. The learned counsel for the petitioner submitted that P.W.1 had admitted in the cross examination that 15 minutes after the occurrence, police had came to the occurrence spot and they received the signature and as such, the earlier First Information Report had been suppressed in this case. The learned counsel for the petitioner further submitted that P.W.1 had admitted in the cross examination that only after the impact, she could understand about the accident. The learned counsel further added that the accused who was the lorry driver was not at fault and it was only P.W.2 who drove the Maruthi Van had come to the northern side of the road and the accident was only due to the negligence of P.W.2. The learned counsel drew the attention of this Court to the rough sketch wherein the blood stains were shown on the northern side of the road.
4. Per contra, the learned Government Advocate (Criminal side) submitted that P.W.2 had clearly stated that the tanker lorry came in a high speed and dashed against the van and the width of the road was only 22 feet.
5. This Court considered the submissions of both parties and perused the records.
6. P.W.9, Inspector of Police had stated that he went to the hospital and received the complaint from P.W.1 who was admitted in the hospital. Though she had stated in the cross examination that the police came to the spot and obtained the signature, it does not affect the case of the prosecution. P.W.1 also admitted in the cross examination that she was in the back seat of the vehicle and she had not noticed as to how the lorry came. P.W.2 who drove the Maruthi Van had deposed that it was only the lorry which came in a high speed in the opposite direction and dashed against the van. Though P.W.2 had admitted that after the accident, both the vehicles were on the right side of the road and as per the rough sketch, blood stains were found on the right side of the road, the total width of the road itself was only 22 feet. As the road was not a wide road, the tanker lorry should not have gone in a high speed. P.W.2 had stated that his vehicle was going on the left side of the road. Even if the Maruthi Van driven by P.W.2 was going in the middle of the road, the driver of the heavy vehicle accused should have been more careful especially when the road was not wide enough anticipating and foreseeing the negligent act of other road users. It is clear from the evidence that the accident had occurred only due to the rash driving of the accused. Both the courts have found the accused guilty and no question of law is raised in this revision. The conviction imposed on the petitioner is confirmed.
7. At this juncture, learned counsel for the petitioner submits that the petitioner had been in jail for more than 20 days and prayed for leniency with regard to the sentence.
8. P.W.2 had admitted in the cross examination that the accident took place on the northern side of the white line on the road. This shows that the Maruthi van was going crossing the white line. There had been contributory negligence on the part of P.W.2. Though the doctrine of contributory negligence does not apply to criminal law, it could be considered as a mitigating circumstance at the time of awarding sentence to the offender. Taking into consideration the above, the sentence of imprisonment imposed on the petitioner/accused by the trial Court is reduced to the period of imprisonment already undergone by him.
9. Except the above modification with regard to the sentence of imprisonment, the criminal revision petition is dismissed.
14.09.2010 Index:yes Internet:yes ksr To
1.Judicial Magistrate II, Udumalpet.
T. SUDANTHIRAM, J., ksr CRL.R.C.No.1644 of 2005 14.09.2010