Madras High Court
Nachimuthu vs State By The Inspector Of Police on 3 January, 2011
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:03.01.2011 CORAM THE HONOURABLE MS.JUSTICE K.B.K.VASUKI Crl.R.C.No.1242 of 2007 Nachimuthu .. Petitioner/Appellant/Accused Vs. State by the Inspector of Police Velagoundampatty Police Station, Namakkal District. Crime No.332 of 2004 .. Respondent/Respondent/Complainant Prayer: Criminal Revision filed under Sections 397 and 401 of the Criminal Procedure Code to call for the records relating to the judgment dated 03.08.2007 made in C.A.No.33 of 2007 on the file of Principal District Court, Namakkal confirming the judgment dated 16.03.2007 made in C.C.No.421 of 2004 on the file of the Judicial Magistrate No.1, Namakkal and to set aside the same and to acquit the accused. For Petitioner : Mr.N.Manokaran For Respondent : Mr.I.Paul Noble Devakumar Govt. Advocate (Criminal Side) ----- O R D E R
The criminal revision is filed by the accused against the judgment of conviction made in C.A.No.33 of 2007 on the file of the Principal District Court, Namakkal confirming the judgment of conviction made in C.C.No.421 of 2004 on the file of the Judicial Magistrate No.I, Namakkal. The petitioner is charged for the offence under Section 304 (A) IPC by saying that the accused had at 9.50 a.m. on 08.10.2004 drove the bus bearing Registration No.TN 28 L 6670 rashly and negligently and caused the accident by dashing against one TVS 50 moped resulting in fatal injuries to two persons riding in the moped leading to their death.
2.The prosecution in order to prove the guilt of the accused examined the defacto complainant, eye witnesses, mahazar witness, Post mortem doctors and the police officials who received and registered the complaint and FIR and inspector of police who conducted the investigation and the Motor vehicle inspector as P.Ws 1 to 12 and has produced Exs.P1 to P.13 documents. The trial Court has on the basis of the materials found that the accident is caused solely by the rash and negligent driving of the accused and has convicted and sentenced him to undergo imprisonment and to pay fine. Aggrieved against the same, the accused preferred the appeal before the Appellate Court. The Appellate court has, by judgment dated 03.08.2007, confirmed the judgment of the trial Court and hence, this criminal revision by the accused before this Court.
3.The learned counsel for the accused has by relying upon the categorical statement made by the prosecution side witnesses about the physical features available on the scene of occurrence and the efforts made by the driver of the vehicle to divert the vehicle to opposite side to avoid the accident contended that the driver of the vehicle is not solely responsible for the accident and the accident is caused mainly due to the act of the TVS 50 moped rider in entering the main road from the branch road without verifying the traffic on the main road and due to the existence of the standing tree which blocks the vision of the road at the junction of the main road and the branch road. It is further argued by the learned counsel for the petitioner that the Rule Resp Ipsa Locquitur is not applicable to the criminal proceedings where the liability is always on the prosecution to prove the rash and negligent act of the driver and on the failure of the prosecution to prove the same, the lower Courts ought to have released the petitioner from the charges levelled against him. The learned counsel for the petitioner also cited authorities of the Supreme Court reported in 2001 (2) MWN (Cr.) SC 77 in Mohammed Aynuddina alias Miyam V. State of Andhra Pradesh; 2001(2) MWN (cr.) 249 Sekar V. State by S.I. of Police, Ethapur, Salem District; AIR 1972 SC 221 Mahadeoharilokrs V. State of Maharashtra and 2007 CrLJ 475 B.C.Ramachandra S/o Chikkashetty V. State of Karnataka by Channarayapatna Town Police rep. by S.P.P. of High Court of Karnataka, in support of his contention in this regard.
4.Heard both sides.
5.The perusal of Ex.P.8 Rough Sketch reveals that the bus was coming from Namakkal to Thiruchengodu East West main road and the TVS 50 moped was coming from Athiyappampalayam branch road in the South of the East West main road and the accident is caused just at the junction of the main road and the branch road and the bus was, after the accident, dragged on to nearly 70 feet on the opposite side and dashed against one standing the Karuvelam tree on the Northern side and stopped.
6.The prosecution has examined P.Ws.1 to 4 and P.W.9 as eye witnesses of the accident. P.W.1 who is the defacto complainant, is none other than the grandson and son of the deceased respectively and P.Ws.2 and 4 are purported to be the eye witnesses of the accident. Out of the five eye witnesses, it is true that the P.Ws.1 and 3 have deposed that the bus came rashly and dashed against the TVS 50 moped, but P.W.2 has in the course of cross examination denied any knowledge about the manner of the accident. P.W.4 has, though in his chief examination deposed that he actually eye witnessed the accident he has admitted in the course of his cross examination that the vehicle coming from branch road will not be visibly seen by the vehicles coming in the main road due to the standing tree. P.W.9 who is also one of the inmates of the bus has in the course of his cross examination deposed contra to the prosecution case that the TVS 50 moped suddenly entered the main road and came across the bus which was coming on the straight road and the bus driver though was driving at high speed attempted to divert the vehicle to his rightern side to avoid dashing against the TVS 50 and in such attempt lost control and hit against TVS 50 and dragged on to opposite side.
7.As rightly argued by the learned counsel for the petitioner, the evidence of P.W.9 is sufficient enough to shatter the case of the prosecution as if the bus driver is solely responsible for the accident. As rightly pointed out by the learned counsel for the petitioner, the bus was coming straight in the main road and the normal focus of the driver will be only on the main road. Whereas the TVS 50 moped riders coming from branch road ought to have, before entering the main road at the junction, verified the traffic on the main road and only after confirming the same can enter and cross the main road. None of the P.Ws deposed that one such attempt was made by the TVS 50 moped rider before entering the main road. On the contrary, P.W.11 has stated that the bus driver attempted to divert the bus to opposite direction to avoid accident. If that is so, the accused cannot be said to be acted without due care and caution, so as to construe his act, as rashness opposed to deliberate act. It is to be observed that all the witnesses did only speak about the driving of the vehicle at high speed which alone would not render the driving to be rash and negligent as observed by the Supreme Court in the judgment reported in 2007 CrLJ 475 B.C.Ramachandra S/o Chikkashetty V. State of Karnataka by Channarayapatna Town Police rep. by S.P.P. of High Court of Karnataka and AIR 1972 SC 221 Mahadeoharilokrs V. State of Maharashtra. The Supreme Court is under similar circumstances where serious attempts were made on the part of the driver of the vehicle to divert the direction to avoid accident, pleased to hold that the circumstances did not bespeak, negligence or dereliction of duty to exercise due care and control on the part of the accused. The Supreme Court has also observed that when an explanation is sought to be given by the accused about the circumstances under which the accident is caused due to negligent act of the deceased, then the burden shifts to the prosecution to show that the explanation so offered by the accused could not be believed and when no such reason is made out, the case of the prosecution ought to be rejected as no proof is made out and the conviction recorded against the accused is hence not sustainable. The Apex Court has, in the cases above referred to, not appreciated the approach adopted by the Courts below, resulting in manifestly illegal order leading to failure of justice. That being the guideline issued by the Apex Court in the absence of any evidence to prove rash and negligent driving on the part of the accused, mere driving the vehicle at high speed is not sufficient enough to bring the offence under Section 304 (A) IPC. The Courts below by simply accepting the prosecution case, without analysing as to what amounts to rash and negligent act committed serious error in finding the accused is guilty and convicted him and such order of conviction cannot be allowed to sustain.
K.B.K.VASUKI,J.
va
8.In the result, the criminal revision is allowed by setting aside the judgment of conviction and sentence passed by the lower Courts and the accused is acquitted and the fine amount, if any paid by the accused, shall be refunded and the bail bonds, if any, executed by him shall stand cancelled.
Index :Yes 03.01.2011
Internet:Yes
va
To
1.The Principal District Court,
Namakkal.
2.The Judicial Magistrate No.1,
Namakkal.
Crl.R.C.No.1242 of 2007