Madras High Court
S.Sampathkumar : Revision vs State Rep. By
Author: T.Krishnavalli
Bench: T.Krishnavalli
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation 25.02.2019
Date of Judgment 19.03.2019
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.R.C(MD)No.231 of 2010
and
CMP(MD)No.9487 of 2018
S.Sampathkumar : Revision Petitioner/
Appellant/Accused
Vs.
State rep. by
The Inspector of Police,
Traffic Investigation Wing,
Thanjavur East Police Station,
Thanjavur District.
(Crime No.243 of 2005) : Respondent/Respondent/
Complainant
Prayer: Criminal Revision has been filed under Sections
397 and 401 of Criminal Procedure Code, against the judgment
passed in Crl.A.No.62 of 2009 on the file of the Additional District
& Sessions-cum-Essential Commodity Judge, Thanjavur, dated
05.03.2010, confirming the Judgment passed in C.C.No.187 of
2006, dated 29.09.2009 on the file of the Judicial Magistrate No.III,
Thanjavur.
For Revision Petitioners : Mr.K.Samidurai
For Respondent : Mr.A.Robinson
Government Advocate
(Criminal side)
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JUDGMENT
This Criminal Revision has been filed challenging the judgment passed in Crl.A.No.62 of 2009 on the file of the Additional District & Sessions-cum-Essential Commodity Judge, Thanjavur, dated 05.03.2010, confirming the Judgment passed in C.C.No.187 of 2006, dated 29.09.2009 on the file of the Judicial Magistrate No.III, Thanjavur.
2.The case of the prosecution is that on 09.09.2005 at 11.30 pm, when the deceased Ramesh was riding his Hero Honda motor cycle bearing registration No.TN-49-H-8778, while his wife Tamilarasi was travelling pillion rider, the accused drove the Hero Honda motor cycle PY-01-R-8066 on the wrong side in a rash and negligent manner and hit against the deceased. In that process, the deceased Ramesh sustained head injury and thereafter, he died. The Inspector of Police, attached to Traffic Investigation Wing, Thanjavur East Police Station has filed a final report against the accused.
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3.In the trial court, on the side of the prosecution, 14 witnesses were examined and 9 documents were marked. On the side of the accused, no witness was examined and no document was marked. When the accused was questioned about the incriminating circumstances, he denied the same.
4.The trial court convicted the revision petitioner and sentenced him to undergo 1 year Rigorous Imprisonment and imposed him to pay a fine of Rs.1,000/-, in default to undergo 3 months simple imprisonment and further convicted him under Section 3 r/w 181 of the Motor Vehicles Act and imposed a fine of Rs.500/-. Aggrieved by the judgment passed by the trial court, the revision petitioner/Accused filed an appeal in Crl.A.No.62 of 2009, which was heard by the Additional District and Sessions-cum- Essential Commodity Judge, Thanjavur. The first appellate court also confirmed the findings of the trial court. Hence, this criminal revision.
5.The learned counsel for the revision petitioner/accused submitted that there is no evidence available to the effect that the petitioner/accused drove the vehicle in a rash and negligent manner and PW2, PW3 and PW7 are not the eye witnesses and they http://www.judis.nic.in 4 are relative to the deceased and the first appellate court having discarded the evidence of PW1 is not justified in sustaining the conviction based on the evidence of PW2, who turned hostile, PW3 and PW7 admittedly those witnesses were reached the place subsequent that of the accident and there was a delay in lodging the First Information Report and there were two complaints received by the police and the police suppressed one of the complaints and according to the prosecution, the husband of PW1 died in the accident and he was taken into Government Hospital, Thanjavur Medical College Hospital, however, the police did not receive any complaint from the Government Hospital and hence, the conviction and sentence of the petitioner is totally without any materials and evidence. It is further submitted that the prosecution has failed to establish the ingredients required for all the offences with which he stood charged and convicted him for the said offences and none of the witnesses have spoken that the accused has driven the vehicle either rashly or negligently and there is no specific allegation of negligence as against the accused in driving the offending vehicle and the prosecution has failed to prove the case beyond reasonable doubt and the accused is entitled to acquittal and prays that the criminal revision may be allowed. http://www.judis.nic.in 5
6.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that both the courts below appreciated the evidence in a proper manner and believed the evidence of the eye witnesses and having regard to the nature of the offences, convicted the revision petitioner for rash and negligent driving of the vehicle and passed proper sentence, which does not require any interference by this court and the accused is not entitled for acquittal and prays that the criminal revision may be dismissed.
7.Heard both sides and perused the materials available on record.
8.The main contention of the revision petitioner is that the there was no evidence for rash and negligent driving of the revision petitioner/accused by the witnesses and prosecution witnesses only deposed about the speed and hence, the accused is entitled acquittal. For that the learned counsel for the petitioner relied upon the following decisions:-
(i)2012 SCC Online Mad 1105
(Balakumar Vs. Muthuselvam);
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(ii)2015(3) MWN (Cr.)590 (DB)
(L.Manoharan and another Vs. State);
(ii)Unreported decision made in
Crl.R.C.No.1433 of 2011, dated 27.07.2018
(V.Gnanamurthy Vs. The State Rep. by Inspector of Police); and
(iv)Unreported decision made in Crl.R.C.No.759 of 2011, dated 04.01.2017 (Chinnasamy Vs. State by Inspector of Police, Vellithiruppur Police Station).
9.In this case, the evidence of all the witnesses and the documents were carefully perused. P.W.1 is the injured and wife of the deceased. PW1 in her complaint stated that on 09.09.2005, she and her husband proceeded in a two wheeler on Vallam Road from west to east and when they came near the Vigilance office, at that time, the accused drove the offending vehicle in the opposite direction in rash and negligent manner and dashed against their vehicle, due to it, both fell down and sustained injuries and they were taken to the Government Medical College Hospital, Thanjavur and then on the next day, her husband was taken to Vinothagan Memorial Hospital.
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10.PW1 deposed that on 9.9,2005 she and her husband proceeded in their two wheeler on Vallam Road from west to east and when they came near the Vigilance office, at that time the accused came in the opposite direction in a speedy manner and dashed against their vehicle and both fell down and sustained injuries and accused also sustained injuries in the occurrence and they were all taken to Government Hospital, Thanjavur and on the next day, her husband was taken to Vinothagan Memorial Hospital and the police came to the above hospital and at that time, her husband was not in a position to give statement and hence, statement was recorded from her. The complaint statement was marked as Ex.P1.
11.PW1 in her complaint stated that the accused drove his vehicle in rash and negligent manner. But in her evidence, she stated that the accused drove his vehicle in a speedy manner and dashed against their vehicle. Further PW1 during her chief examination stated that she saw the occurrence. But during her cross-examination, she has stated that she does not know how the accident occurred, since she was sitting as pillion rider in the vehicle.
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12.PW2 to PW6 were cited as eye witnesses. PW5 and PW6 were turned as hostile. PW2 to PW4 deposed that on 09.09.2005 PW1 and her husband came in a two wheeler and when they came near the Vigilance office in Vallam Road, at that time the accused came in the opposite direction in a speedy manner and dashed against the two wheeler, in which PW1 and her husband travelled.
13.PW2 to PW4 have not stated during their evidence that the accused drove his vehicle in rash and negligent manner and dashed against the two wheeler, in which PW1 and her husband travelled. PW3 and PW4 during their chief examination stated that they saw the occurrence, but in their cross examination, they stated as follows:-
“rk;gtj;ij ehd; 30 mo J}uj;jpy;
fz;Zf;F nenu ghh;j;njd;. nkhJk; nghJ ehd; ghh;f;ftpy;iy. Rj;jk; nfl;Ljhd;
ghh;j;njd;. ghh;;j;jnghJ 2 ,U rf;fu thfdq;fs; fPnH fple;jd. 3 egh;fs;
mog;gl;L fple;jdh;.
rj;jk; nfl;L jhd; ehd; te;J ghh;j;njd;. ehd; te;J ghh;f;Fk;nghJ mog;gl;lth;fis Mk;g[yd;]py;
Vw;wpf;bfhz;oUe;jhh;fs.;” http://www.judis.nic.in 9
14.PW1 to PW6 have not stated that the accused drove his vehicle in rash and negligent manner. Further, PW3 to PW6 during their chief examination stated that they saw the occurrence, but during their cross examination stated that they came to the place of occurrence only after hearing the noise. Hence, it is not possible for them to see the occurrence.
15.Further PW1 also during her cross examination stated that since she travelled as a pillion rider, she was not noticed the occurrence. Hence, it is held that there are contradictions in the evidence of PW1 to PW6. Hence the arguments put forth on the side of the revision petitioner/accused stating that there are contradiction in the evidence of PW1 to PW6 is acceptable.
16.Next contention of the appellant is that P.W.1 stated during her evidence that the complainant statement was recorded while she was in Vinothagan Memorial Hospital for the treatment of her husband, but P.W.1 during her cross examination stated that after the occurrence she and her husband and the accused were taken to Government Hospital, Thanjavur and afterwards Police came to Government Hospital, Thanjavur and they recorded statement from her, but the first statement recorded from P.W.1 was http://www.judis.nic.in 10 not produced in this case and it was suppressed and hence, the suppression of earlier statement is fatal to prosecution.
17.PW1 during her chief examination stated that after the occurrence, she and her husband were taken to the Government Hospital, Thanjavur and on next day, her husband was taken to Vinothagan Memorial Hospital and in the said hospital, the police came and recorded her statement. But during her cross examination , she has stated that after the occurrence, she and her husband and the accused were taken to the Government Hospital, Thanjavur and afterwards, the police came to the Government Hospital, Thanjavur and they recorded statement from her.
18.In this case, the Sub Inspector of Police, who registered the case, was examined as PW12. PW12 stated that he recorded statement of PW1 in the Vinothagan Memorial Hospital.
Further, PW12 during his evidence stated that PW1, her husband and accused were taken to the Government Hospital, Thanjavur. PW12 during his cross examination stated that he has not examined the Doctor who gave first treatment to PW1 and her husband. http://www.judis.nic.in 11
19.The first Investigating Officer was examined as PW13. PW13 stated in his cross examination as follows:-
“”“”vdJ tprhuizapy; fhak;gl;l
egUk;> vjphpa[k; jQ;ir ovk;rpbcwr;
kUj;Jtkidapy; mDkjpf;fg;gltpy;iy
vd;gJ bjhpate;jJ.
tHf;fpy; fhak;gl;l egiu Kjypy;
kUj;Jtkidapy; mDkjpj;j kUj;Jtiu
tprhhpf;ftpy;iy vd;why; rhp.”
20.In this case, the Investigating Officer, who conducted further investigation, was examined as PW14 and during his cross examination, he has stated as follows:-
“””tpgj;J rk;ge;jkhf Kjd; Kjypy;
jQ;ir tpndhjfd; kUj;Jtkidapy; ,Ue;J jfty; fpilf;fg;bgw;wJ. fhak;gl;l egh;
Kjypy; jQ;ir ovk;rpvr; kUj;Jtkid
brd;Wtpl;L mjd;gpwFjhd; tpndhjfd;
kU.kidf;F te;Js;shh;. m.rh.1 jkpHurpia
tpndhjfd; kUj;Jtkidapy; itj;J
tprhuiz bra;Js;nsd;. kU.kidapy;
jkpHurpia tprhuiz bra;jnghJ mth;
thf;FK:yk; bfhLf;ftpy;iy. cwtpdh;fs;
te;jhy;jhd; thf;FK:yk; bfhLf;fKoa[k; vd;W Twpa[s;shh;. m.rh.1 vdJ tprhuizapy; vdf;F tptuk; bjhpahJ. cwtpdh;fs; te;jt[ld;
thf;FK:yk; bfhLg;gjhf Twpa[s;shh;.” http://www.judis.nic.in 12
21.In this case, there are contradiction in the evidence PW12 to PW14 in respect of admission of PW1 and her husband at first in the Government Hospital, Thanjavur and then to the Vinothagan Memorial Hospital. Further, the Doctor, who gave first treatment to PW1 and her husband was not examined in this case.
22.It is to be noted here that the first statement given to the Doctor is the earliest document. PW1 during her cross examination, admitted that already police came to the Government Hospital, Thanjavur and recorded statement from her. But the above statement recorded at first was suppressed on the side of the prosecution. Hence, this court is of the considered view that suppression of earlier statement is fatal to the prosecution.
23.The learned counsel for the revision petitioner/accused argued that in the alleged occurrence, the accused was also sustained injuries and he was also taken to the Government Hospital, Thanjavur in the same ambulance, in which PW1 and her husband were taken and in the hospital, when the police came the accused also enquired and he gave statement to the police, but no case was registered based on his statement and due to the death of PW1's husband, who is the injured, this case was foisted as against http://www.judis.nic.in 13 the accused. Further, in this case, the records in respect of the injuries sustained by the accused were not produced. Hence, the non-production of the medical certificate in respect of accused is fatal to the prosecution.
24.Further, PW1 during her evidence, admitted that the accused also sustained injuries in the same occurrence and she, her husband and the accused were taken to the Government Hospital, Thanjavur in the same ambulance. But in the case, the medical certificate of the accused was not produced. Hence, it creates doubt about the prosecution case.
25.In this revision petition, the petitioner already filed a petition in Crl.M.P.(MD)No.9487 of 2018 to receive his licence and permit him to adduce additional evidence. In this case, the accused was already charged under Section 3 r/w 181 of the Motor Vehicles Act and in the Criminal Miscellaneous Petition, he produced driving licence and the above Miscellaneous Petition is allowed. Hence it is held that the petitioner produced his driving licence and it was found that it was valid. Hence, the petitioner was not found guilty under Section 3 r/w 181 Motor Vehicles Act. http://www.judis.nic.in 14
26.For all the reasons stated above, this court is of the considered view that the prosecution has not proved the case beyond reasonable doubt and the impugned order is liable to be set aside.
27.In the result, this Criminal Revision is allowed. The impugned judgment of conviction and sentence are set aside. The revision petitioner/accused is acquitted of the charges levelled against him. The bail bond if any executed by him shall stand cancelled and the fine amount if any paid by him shall be refunded to him.
19.03.2019 Index:Yes/No Internet:Yes/No gns/er http://www.judis.nic.in 15 T.KRISHNAVALLI,J.
gns/er To
1.Additional District and Sessions Judge / Essential Commodity Judge, Thanjavur.
2.The Judicial Magistrate No.III, Thanjavur
3.The Inspector of Police, Traffic Investigation Wing, Thanjavur East Police Station, Thanjavur District.
Judgment made in Crl.RC(MD)No.231 of 2010 19.03.2019 http://www.judis.nic.in 16 Pre-Delivery Order Made in Crl.RC(MD)No.231 of 2010 To THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI From G.N.Subathra, P.A.to the Hon'ble Judges http://www.judis.nic.in