Madras High Court
B.Karthik vs State By on 8 July, 2022
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.RC.No.96 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 09.02.2016
Pronounced on : 08.07.2022
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
CRL.RC.No.96 of 2016
B.Karthik .... Petitioner / Accused
Vs.
State by
The Inspector of Police
Coonoor Town Police Station,
The Nilgiris District
(Crime No.64 of 2012) ...Respondent / Complainant
PRAYER: Criminal Revision Petition filed under Section 397 r/w 401
of the Code of Criminal Procedure, to call for the records and set
aside the conviction and sentence passed by the District Judge,
Nilgiris, Ootacamund in C.A.No.38 of 2014, dated 10.12.2015,
thereby setting aside the conviction and sentence passed in
C.C.No.47 of 2012 on the file of the Judicial Magistrate, Coonoor, The
Nilgiris, dated 21.11.2014, by allowing this Criminal Revision
Petition.
For Petitioner : Mr. S.Jeyakumar
For Respondent : Mr.R.Kishore Kumar
Government Advocate (crl.side)
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https://www.mhc.tn.gov.in/judis
Crl.RC.No.96 of 2016
ORDER
This Revision is filed to set aside the conviction and sentence passed by the learned District Judge, Nilgiris, Ootacamund in C.A.No.38 of 2014, dated 10.12.2015, thereby setting aside the conviction and sentence passed in C.C.No.47 of 2012, on the file of the learned Judicial Magistrate, Coonoor, The Nilgiris, dated 21.11.2014 .
2. The facts of the case is that on 14.02.2012, at about 6.00 p.m., the victim girl Sneka, who returning from School, got into the mini bus, bearing Registration No.TN-43-B-9258. When the bus was proceeding from Coonoor to Sims Park, nearing 'Ambal Auto Showroom' a Maruthi Showroom, driven by its driver in a rash and negligent manner, with high speed, suddenly applied the break, due to the impact, the victim was thrown away from the bus, fell down on the road, sustained multiple injuries and became unconscious. Immediately, she was taken to 'Pushpa Nursing Home'. Since there was no doctors, again she was taken to 'Nankem' Hospital, where the doctors examined her, advised to take PSG Hospital, Coimbatore. Then, the deceased taken to PSG Hospital, admitted there, on the next day ie., on 15.02.2012, at about 7.15 p.m, she died. 2/21 https://www.mhc.tn.gov.in/judis Crl.RC.No.96 of 2016
3. On 15.02.2012, on the complaint of P.W1, P.W.7 registered FIR, for the offence under Sections 279 and 338 IPC., thereafter, after the death of the deceased, Sections were altered. P.W.9 took up further investigation, examined the witnesses present in the scene of occurrence, prepared observation mahazar, rough sketch, recorded the statement of witnesses, conducted the inquest, sent the body for postmortem. P.W.10 conducted postmortem, gave a report confirming that the victim died due to head injuries sustained.
4. The vehicle was sent for inspection. P.W.8, inspected the vehicle, given the report that accident was not due to any mechanical defect. Thereafter, on conclusion of investigation, collection of documents, reports, filed the charge sheet before the learned Judicial Magistrate, Coonoor and the same was taken on file in C.C.No.47 of 2012.
5. P.W.2 and P.W.3 are the passengers travelled in the bus, witnessed the accident; P.W.4 working in automobile shop near the scene of occurrence was standing in the road, witnessed the victim thrown away from the bus; P.W.5, on hearing the shout of P.W.4 came 3/21 https://www.mhc.tn.gov.in/judis Crl.RC.No.96 of 2016 out, seen the victim lying on the road with injuries; P.W.6 is the another person, who was standing near the scene of occurrence, witnessed the accident.
6. During the trial, on the side of the prosecution, P.W.1 to P.W.10 examined and Ex.P1 to Ex.P9 were marked. On the side of the defence, neither witnesses examined nor documents marked.
7. The trial Court, on conclusion of trial, found the petitioner guilty for the offence under Section 279 IPC., sentenced him to undergo 3 months S.I., and to pay a fine of Rs.1000/-, in default to undergo one month simple imprisonment, further sentenced him to undergo one year simple imprisonment and to pay a fine of Rs.5000/-, in default, to under go three months simple imprisonment, for the offence under Section 304(A) IPC. The sentences were ordered to run concurrently.
8. Aggrieved over the same, the petitioner preferred an appeal before the learned District Sessions Judge, Udhamandalam in C.A.No.38 of 2014. The Sessions Judge, by Judgment dated 10.12.2015, dismissed the appeal, confirming the conviction and sentence of the trial Court. Against which the present Revision. 4/21 https://www.mhc.tn.gov.in/judis Crl.RC.No.96 of 2016
9. The contention of the petitioner is that in this case 4 witnesses projected as eyewitnesses viz., P.Ws.2, 3, 4 & 6. P.W.2 and P.W.3, who travelled in the bus, P.W.4 and P.W.6, who projected to be present in the scene of occurrence, seen the victim girl fall down from the bus, sustained multiple injuries and became unconscious. P.W.1 is the father, who was informed about the accident, came to the hospital, lodged the complaint, he is in the nature of hearsay witness. P.W.2 and P.W.3 evidence are contradictory to each other with improvements. None of the witness stated that the petitioner driven the vehicle in a rash and negligent manner with high speed.
10. All the witnesses, including the Investigating Officer admit that the road was on uphill. It was at busy hours of evening 6.00 p.m., and the place is a busy place with bank, shops and lot of public movements. In view of the same, there is no possibility of the vehicle moving at high speed. Further, the vehicle is a mini bus, which was climing up the road. In such circumstances, there cannot be any rash and negligent driving of the driver of the bus. Further, P.W.2 and P.W.3, improved their version by stating that due to sudden application of break, there was a jolt, due to which, the victim thrown 5/21 https://www.mhc.tn.gov.in/judis Crl.RC.No.96 of 2016 away from the bus. These important facts not stated in the 161 Cr.P.C., statement to the Police, hence a contradiction. The Courts below brushed aside the contradictions, on the other hand convicted the petitioner for the reason that the petitioner proceeded in a high speed and suddenly applied the break.
11. It is seen that except the victim, none of the passengers fell down in the bus. The victim, who was standing near foot step, failed to catch hold of the support provided and she by her own act contributed for the accident. P.W.4 and P.W.6 who were standing near the scene of occurrence, admit that what happened inside the bus they are not aware, except seeing the victim girl lying on the road. It is the case of the prosecution that the bus was fully loaded and crowded, in such case, the accident could not have happened, as projected by the prosecution and spoken by the witnesses.
12. The bus stopped in the Blue Hills bus stop and moved only 150 feet from there on. In such circumstances, the vehicle could not have gained high speed. P.W.2 state that he was sitting behind the driver of the bus, the victim was standing in front of him. Had there been sudden break and jolt, the victim could have fell in front of P.W.2 and not, as projected by the prosecution. The version of P.W.2 and 6/21 https://www.mhc.tn.gov.in/judis Crl.RC.No.96 of 2016 P.W.3, who claim to travel in the bus, is highly doubtful, since they not informed the police, gave any statement on the same day, it was only with delay their statements recorded.
13. Further added to it, P.W.2 and P.W.3 state that they shifted the injured to the hospital in a jeep, which was passing by. P.W.1 / father of the victim state that the victim was taken to the hospital in the mini bus driven by the petitioner. P.W.9 Investigating Officer not seized any bus ticket to confirm that P.W.2 and P.W.3 travelled in the bus on that day. P.W.2 further admits that he has not seen the victim girl falling from the bus. P.W.7 gives a contradictory version with regard to complaint received and registration of FIR. P.W.8, Motor Vehicle Inspector admit that he had not visited the accident site, recorded tyre marks, which is an important factor. Further, from the observation mahazar and rough sketch / Ex.P5 and Ex.P6, there is nothing to show about the tyre marks found.
14. The trial Court failed to look into these facts and merely gone on assumption that P.W.2 and P.W.3 passengers in the bus spoken about the petitioner driven the vehicle with high speed, suddenly applied the break, due to the impact, the deceased thrown away from the bus, sustained injuries. This application of sudden 7/21 https://www.mhc.tn.gov.in/judis Crl.RC.No.96 of 2016 break is an improvement, a contradiction. The trial Court, primarily on this point, convicted the petitioner which is not proper. It is highly doubtful. The Motor Vehicle Inspector, Investigating Officer not recorded where the foot board for entry and exit of the bus was available, which is an important factor in this case. The lower appellate Court failed to consider the evidence and materials independently and dismissed the appeal.
15. Further, the learned Senior Counsel for the petitioner, in respect of his contentions, relied on the following decisions;
(I) The Judgment of the Hon'ble Supreme Court in State of Karnataka Vs. Satish reported in (1998 (8) SCC 493).
(ii) The Judgment of the Kerala High Court in P.Muhammed Vs. The State of Kerala reported in (2021 (3) Criminal court Cases 0417).
(iii) The judgement of Madras High Court in Selavamani Vs. The State rep.by The Inspector of Police, Perambure Police Station, reported in 2022 (1) L.W.(CRL.)126 8/21 https://www.mhc.tn.gov.in/judis Crl.RC.No.96 of 2016
(iv) The judgment of Kerala High Court in State of Kerala Vs. Kunhandy reported in 1961 MLJ (CRL.)325.
(v) The judgment of Hon'ble Supreme Court in Mohanta Lal Saha Vs. State of West Bengal and Another reported in 1968 ACJ 124.
(vi) The judgment of Punjab and Harayana High Court in Kishan Chand And Another Vs. The State of Haryana reported in 1970 (3) SCC 904.
(vii) The judgment of Bombay High Court in Nageshwar Shri Krishna Ghobe Vs. State of Maharastra reported in (1973) 4 SCC 23.
(viii) The judgment of Delhi High Court in Jagdish Chander Vs. State of Delhi reported in (1973)2 SCC 203.
(IX) The judgment of Odissa High Court in Badri Prasad Tiwari Vs The State reported in (1994) Crl.J 389 9/21 https://www.mhc.tn.gov.in/judis Crl.RC.No.96 of 2016
(x) The judgment of Hon'ble Supreme Court in Mohammed Aynuddin Alais Miyam Vs. State of A.P reported in (2000) 7 SCC 72.
(xi) The judgment of Hon'ble Supreme Court in Shivanna Vs. State by Hunsur Town Police reported in (2010) 15 SCC 91.
(xii) The judgment of Hon'ble Supreme Court in Ravi Kapur Vs. State of Rajasthan reported in (2019) 9 SCC 284.
(xiii) The judgment of High Court of
Madras in V. Gnanamurthy Vs. State Rep
by Inspector of Police, TIW Central Police Station, Coimbatore reported in (2018)4 MLJ (Crl)44.
For the points that mere high speed does not bespeak of either negligence or rashness. Criminality is not to be presumed. No presumption of rashness or negligence could be drawn by invoking the maxim ““res ipsa loquitur”. The recording of the tyre marks is an important factor in a case of road accident. To fasten criminal liability under Section 304-A IPC., it is necessary that death should have been direct result of rash and negligent act of the accused and that act 10/21 https://www.mhc.tn.gov.in/judis Crl.RC.No.96 of 2016 must be proximate and imminent cause without the intervention of another's negligence. It must be the cause causans. Sofar as the witnesses deposing as having seen the occurrence in question are concern, their evidence has always to be carefully scrutinized because such witnesses only observe accidents after their attention of accident is drawn to the impact, resulting from the collision. Their statement about the events immediately preceding the occurrence are generally and to very large extent influenced by what they imagine must have happened and not the real fact.
16. Mr.R.Kishore Kumar, the learned Government Advocate (crl.side) appearing for the respondent Police would submit that in this case, P.W.1 / father of the victim girl, lodged a complaint, on 15.02.2012, a case has been registered by P.W.7 / Special Sub- Inspector., in Crime No.64 of 2012, for the offence under Sections 279 and 338 of IPC. P.W.1 lodged a complaint stating that his daughter was studying in St.Marys' School, after attending the school, when she was travelling in the mini bus, driven by the petitioner in a rash and negligent manner, with high speed, suddenly applied the break, due to the impact, the victim was thrown away from the bus, fell on the road, sustained multiple injuries and became unconscious. Immediately, she was taken to 'Pushpa Nursing 11/21 https://www.mhc.tn.gov.in/judis Crl.RC.No.96 of 2016 Home' and since no doctors there, she was taken to 'Nankem' Hospital, where the doctors examined her, advised to take her to PSG Hospital, Coimbatore. P.W.1 took her daughter to PSG Hospital, admitted there, on the next day ie., on 15.02.2012, at about 7.15 p.m, his daughter succumbed to injuries.
17.Initially, the complaint was registered for the offence under Sections 279 and 338 IPC., after death of the victim, sections altered under Sections 279 and 304(A) of IPC. P.W.9 took up further investigation, examined the witnesses present in the scene of occurrence, prepared observation mahazar, rough sketch, recorded the statement of witnesses, conducted the inquest, sent the body for postmortem. P.W.10 is the postmortem Doctor, who conducted postmortem, gave a report confirming victim died due to head injuries sustained. P.W.8 is the Motor Vehicle Inspector, who examined the mini bus, gave a report Ex.P4, stating that the accident was not due to any mechanical defects. On completion of investigation filed the charge sheet before the trial Court.
18. The trial Court, on examination of witnesses P.W.1 to P.W.10, marking of Ex.P1 to Ex.P9 found the petitioner guilty. The judgment is a well reasoned one. The lower appellate Court dismissed the 12/21 https://www.mhc.tn.gov.in/judis Crl.RC.No.96 of 2016 appeal confirming the conviction of the petitioner. The points raised by the petitioner now herein already raised before the trial Court as well as before the lower appellate Court and the same were rejected. The petitioner's contention are not sustainable. Hence, prayed for dismissal of the Revision.
19. I have heard the learned counsels appearing on either side and perused the materials available on record.
20. The entire case inges on the evidence of P.W.2 and P.W.3, the prime witnesses, who said to have travelled in the mini bus. P.W.2 admit that he has not seen the victim girl thrown away from the bus. P.W.3 state that the victim girl was holding the support and due to the rash and negligent driving of the driver of the mini bus, sudden application of break, the victim was thrown away from the bus. Admittedly, P.W.2 and P.W.3 not stated about the application of sudden break, during their examination under 161 Cr.P.C., statement. It is further fortified as could be seen from the inquest report / Ex.P8, there is nothing recorded to show that the petitioner applied sudden brake. P.W.4 and P.W.6 though were projected present in the scene of occurrence, they admit that except for seeing the victim girl falling from the bus, what had happened prior to it, is not known. In this 13/21 https://www.mhc.tn.gov.in/judis Crl.RC.No.96 of 2016 case, except victim, no other passenger travelled fell inside the bus.
21. It is admitted case that the bus was crowded and fully loaded. Had there been sudden break and jolt, surely, other than the victim one or two passengers must had a fall or slip either from the seat or inside the bus. In this case, there is no such evidence. Strangely, P.W.7 / the Motor Vehicle Inspector, in his evidence state that there were two entry points, one in the front, and other in the back, but he has not made any such observation and recordings in his report / Ex.P4, the entire case proceeds that due to sudden application of brake, the victim was thrown away from the front entrance of the bus, no conclusive evidence for the same.
22. P.W.8 / Motor Vehicle Inspector admit that he had not visited the accident spot, recorded the tyre marks. P.W.9 / Investigating Officer admit that in the rough sketch / Ex.P6, there is no recording of tyre marking or any other mark to show in which direction the bus proceeded, which is a vital factors in this case. Admittedly, it is an uphill road, the bus proceeded only 150 meters from the bus stop, at that time of accident. In this case, P.W.9 / Investigating Officer not seized any bus ticket to confirm that P.W.2 and P.W.3 travelled in the bus on that day.
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23. Further, P.W.4 admits that he seen the deceased only after she fell down from the bus, he was not aware what had happened and how the accident taken place. P.W.4 to P.W.6 admit that it is a crowded place and lot of vehicles parked on either side of the road and the vehicle cannot ply in high speed. These factors have not been considered by the trial Court as well as the lower appellate Court. It is known fact that in the Hill terrain, that too, in uphill drive, there cannot be high speed of vehicles. While approaching the turn, there may be some twist and turn in the hilly terrain, the passengers are bound to hold the support to avoid.
24. In a case of accident, the following three conditions are imperative to convict the person for rash and negligent driving and causing accident.
1. All the circumstances, including the objective circumstances constituting the accident, from which the inference of guilt is to be drawn, must be firmly established.
2.Those circumstances must be determinative tendency pointing unerringly towards the guilt of the accused, and
3. The circumstances should make the 15/21 https://www.mhc.tn.gov.in/judis Crl.RC.No.96 of 2016 chain so complete that they cannot reasonable raise any other hypothesis save that of the accused's guilt.
25. Further, the Hon'ble Apex Court in the case of Mohammed Aynuddin Alias Miyam Vs. State of A.P. reported in (2000) 7 SCC 72, held that to convict a driver for the passenger falling down from the moving bus it should be conclusively proved that due to negligence of the driver in driving the vehicle in such a manner the accident had taken place. In this case, such evidence is lacking. It would be appropriate to extract the relevant portion of the judgment, which reads as follows:-
“5. What is the culpable negligence on the part of the bus driver in the above accident? A passenger might fall down from a moving vehicle due to one of the following causes: It could be accidental; it could be due to the negligence of the passenger himself; it could be due to the negligent taking off of the bus by the driver. However, to fasten the liability with the driver for negligent driving in such a situation there should be the evidence that he moved the bus suddenly before the passenger could get into the vehicle or that the driver moved the vehicle even before getting 16/21 https://www.mhc.tn.gov.in/judis Crl.RC.No.96 of 2016 any signal from the rear side.
6. A driver who moves the bus forward can be expected to keep his eyes ahead and possibly on the sides also. A driver can take the reverse motion when that driver assures himself that the vehicle can safely be taken backward.
7. It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part.
Merely because a passenger fell down from the bus while boarding the bus no presumption of negligence can be drawn against the driver of the bus.
8. The principle of res ipsa loquitor 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 17/21 https://www.mhc.tn.gov.in/judis Crl.RC.No.96 of 2016 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.
10. In the present case the possible explanation of the driver is that he was unaware of even the possibility of the accident which happened. It could be so. When he moved the vehicle forward his focus normally would have been towards what was ahead of the vehicle. He is not expected to move the vehicle forward when passengers are in the process of boarding the vehicle. But when he gets a signal from the conductor that the bus can proceed he is expected to start moving the vehicle. Here no witness has said, including 18/21 https://www.mhc.tn.gov.in/judis Crl.RC.No.96 of 2016 the conductor, that the driver moved the vehicle before getting signal to move forward. The evidence in this case is too scanty to fasten him with criminal negligence. Some further evidence is indispensably needed to presume that the passenger fell down due to the negligence of the driver of the bus. Such further evidence is lacking in this case.
Therefore, the court is disabled from concluding that the victim fell down only because of the negligent driving of the bus. The corollary thereof is that the conviction of the appellant of the offence is unsustainable.”
26. For the forgoing discussions, this Criminal Revision Petition stands allowed. The conviction and sentence passed by the learned District Judge, Nilgiris, Ootacamund in C.A.No.38 of 2014, dated 10.12.2015, confirming the conviction and sentence passed in C.C.No.47 of 2012 by the learned Judicial Magistrate, Coonoor, The Nilgiris, is set aside 08.07.2022 Index : Yes/No Internet : Yes / No MPK 19/21 https://www.mhc.tn.gov.in/judis Crl.RC.No.96 of 2016 To
1.The District Judge, Nilgiris, Ootacamund.
2.The Judicial Magistrate, Coonoor, The Nilgiris,
3.The Inspector of Police Coonoor Town Police Station, The Nilgiris District
4.The Public Prosecutor, High Court, Madras.
20/21 https://www.mhc.tn.gov.in/judis Crl.RC.No.96 of 2016 M.NIRMAL KUMAR, J.
MPK Pre-Delivery Order made in CRL.RC.No.96 of 2016 08.07.2022 21/21 https://www.mhc.tn.gov.in/judis