Madras High Court
P.Muthupanidan vs The State Rep. By Its on 6 November, 2023
Crl.R.C.(MD) No.248 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 19.09.2023
PRONOUNCED ON : 06.11.2023
CORAM:
THE HONOURABLE MR. JUSTICE P.DHANABAL
Crl. R.C. (MD) No.248 of 2019
and
Crl. M.P. (MD) No.3687 of 2019
P.Muthupanidan ... Petitioner / Appellant/Accused
Vs.
1. The State Rep. by its
The Sub-Inspector of Police,
Sattur Town Police Station,
Virudhunagar District.
2. The Public Prosecutor,
Virudhunagar District,
Srivilliputhur. ... Respondents /Respondents/ Complainants
PRAYER: Criminal Revision case has been filed under Section 397 r/w
401 of Criminal Procedure Code, praying to call for the records relating to
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Crl.R.C.(MD) No.248 of 2019
the Judgement dated 17.12.2018 made in Crl.A.No.154 of 2011 on the file
of the Learned Additional District Sessions Court, Virudhunagar at
Srivilliputhur, confirming the Judgement dated 29.10.2011 made in C.C.No.
158 of 2007 on the file of the Learned Judicial Magistrate No.II, Sattur and
to set aside the same and consequently to acquit the petitioner and to pass
such further or other orders.
For Petitioner : Mr.M.S.Jeyakarthik
For Respondents : Ms.M.Aasha,
Government Advocate (Crl.Side)
ORDER
This Criminal Revision in Crl.R.C.(MD).No.248 of 2019 has been preferred by the petitioner as against the Judgement of conviction in Crl.A.No.154 of 2011 passed by the Learned Additional District Sessions Court, Virudhunagar at Srivilliputhur dated 17.12.2018, wherein the trial court has convicted the accused for the offences under sections.279,337 & 304(A) of IPC and sentenced the petitioner for the offence u/s.304(A) of IPC to undergo one year rigorous imprisonment and Rs.3000/- as fine, in default to undergo three months simple imprisonment, for the offences u/s. 337 of IPC (2 Counts) imposed fine of each Rs.500/- in default to undergo 2/18 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.248 of 2019 one month simple imprisonment and no punishment was awarded for the offence under section 279 of IPC.
2. Aggrieved over the above said judgement of conviction the petitioner/Accused has preferred a Criminal Appeal in Crl.A.No.154 of 2011 before the Learned Additional District Sessions Court, Virudhunagar at Srivilliputhur. The Learned Additional District Sessions Court, Virudhunagar at Srivilliputhur had also confirmed the judgement of the learned trial court and dismissed the said appeal. As against the judgement in Crl.A.No.154 of 2011 passed by the learned Additional District Sessions Court, Virudhunagar at Srivilliputhur, this present Criminal Revision has been filed.
3. The case of the prosecution is that on 19.08.2007 at about 03.00p.m. when the deceased along with two others namely Manikandan and Arjunan were proceeding in a two wheeler in the Sattur to Mettamalai Road opposite to the TASMAC Shop, one TATA 709 Mini Lorry bearing registration No.TN-67-B-4671 was came in a rash and negligent manner and hit the Hero Splender Two wheeler bearing registration No. TN-67-T-3592. Due to which the deceased Mariselvam sustained grievous injuries and died on the spot and the two other pillion riders namely Manikandan and 3/18 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.248 of 2019 Arjunan were sustained injuries.
4. Thereafter, complaint was given by the Manikandan (P.W.1) and P.W.9 has registered a FIR in Cr.No.660/2007(Ex.P.7) for the offences under sections.279, 337 & 304(A) of IPC. Thereafter, the case was investigated by the P.W.10 Mr.Devaraj, Deputy Superintendent of Police, he examined the witnesses and recorded the statements of witnesses and obtained documents. Thereafter, he filed a final report as against the accused/petitioner. The trial court had furnished the copies to the accused under section 207 of Cr.P.C and thereafter charges were framed against the accused for the offences under sections 279, 337 (2 counts) & 304(A) of IPC. The charges were read over and explained to the accused, the accused denied the charges filed by the prosecution. On the side of prosecution P.W.1 to P.W.10 were examined and Ex.P.1 to P.11 were marked. No Material Objects were marked. After completion of prosecution witnesses the accused was examined under section 313(1)(b) of Cr.P.C. with regard to the incriminating evidence adduced against him and the same were also denied by the accused. After hearing both sides and evaluating the oral and documentary evidences, the trial court had found the accused guilty for the offences under sections 279, 337 (2 counts), 304(A) of IPC. The learned 4/18 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.248 of 2019 Trial Court has convicted the accused for the offences under sections. 279,337(2 counts) & 304(A) of IPC and sentenced the petitioner for the offence u/s.304(A) of IPC to undergo one year rigorous imprisonment and Rs.3000/- as fine in default to undergo three months simple imprisonment, for the offences u/s.337 (2 counts) of IPC imposed fine of each Rs.500/- in default to undergo one month simple imprisonment and no punishment was awarded for the offence under section 279 of IPC.
5. Aggrieved over by the judgement of conviction, the accused preferred an Criminal Appeal before the Learned Additional District Sessions Court, Virudhunagar at Srivilliputhur in Crl.A.No.154 of 2011 and the same was made over to the Learned Additional District Sessions Court, Virudhunagar at Srivilliputhur and then the Appellate Court after hearing both sides had dismissed the appeal by confirming the Judgement of the Trial Court. Aggrieved over by the above said Judgement, the present Criminal Revision Petition has been filed by the petitioner on following grounds:
a) The impugned conviction order is untenable and unsustainable in all probabilities of law. Hence, the above conviction order is liable to be set aside.
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b) The Courts below failed to note that totally 3 persons travelled in one two wheeler. It is clear violation of law.
c) The courts below failed to consider that the deceased did not possess driving license. Moreover, the pillion riders also have not possessed driving license.
d) The courts below failed to note that the motor vehicle inspector's report.
e) The courts below failed to note that the petitioner's vehicle did not dash against the deceased two wheeler in direct-opposite.
f) The courts below failed to note that since three persons travelled in one Two wheeler, the deceased unable to control the two wheeler, thereby the accident occurred.
g) It is pertinent to note that all the witnesses are interested witnesses and no independent witness was examined in the above criminal case. Further, the prosecution also failed to prove the prosecution case by adducing the corroborating evidences.
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h) It is submitted that the prosecution also failed to prove the prosecution case by adducing the corroborating evidences. When the facts stood thus, without giving the benefit of reasonable doubts in favour of the petitioner, the learned Trial Court passed a conviction order against the petitioner.
i) In any event, the impugned conviction order is untenable and it is liable to be set aside.
6. The learned counsel appearing for the Appellant would contend that the prosecution has failed to prove the case as against the accused beyond any reasonable doubts. The witnesses are relatives to the deceased and the prosecution has failed to examine any independent witnesses nearby the place of occurrence. The deceased along with two others have rided in the Two Wheeler without any valid license and further the rider of Motor Vehicle rode the vehicle as against the traffic rules and without observing the traffic rules and without having any valid license the deceased rode the vehicle and thereby they themselves invited the accident and there is no negligence on the part of the accused. Even according to the prosecution 7/18 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.248 of 2019 witnesses, there is no evidence with regard to the rash or negligent driving of the accused. The trial court has mainly relied upon the rough sketch prepared by the Investigation Officer. There is no evidence as to how the Investigation Officer identified the place of occurrence, nobody have identified the place of occurrence to the Investigation Officer, neither the injured witnesses nor the eye witnesses identified the place of occurrence to the Investigation Officer. While so, the rough sketch drawn by the Investigation Officer creates serious doubt over the prosecution case and the Trial Court without considering the said aspect, mainly retained the said rough sketch and wrongly convicted the accused for the offence under sections 279, 337, 304(A) of IPC. The Motor Vehicle Inspector (P.W.8) had also deposed that, right side of the van and back side wheel of the vehicle were got damaged, Therefore, it shows that Two Wheeler only dashed against the Van and the prosecution failed to mark the Wound Certificate through doctor and thereby the prosecution failed to prove the charges levelled against the accused. Therefore the courts below have not considered the above said aspects and convicted the accused.
7. The learned Government Advocate (Crl.Side) appearing on behalf 8/18 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.248 of 2019 of the respondent would contended that P.W.1 and P.W.2 Manikandan and Arjunan are the injured and eye witnesses of the occurrence and they have categorically deposed about the manner of occurrence and the rash and negligent driving of the accused, and they also identified the accused. The Motor Vehicle Inspector also deposed about the damages caused to the vehicles, the Two Wheeler also damaged on the right side. Therefore the prosecution has established the case through eye witnesses. The Trial Court also after taking into consideration of all these aspects correctly convicted the accused and the appellate court also after elaborate discussion confirmed the judgement of the Trial Court. Thereby this Criminal Revision Petition is liable to dismissed.
8. Heard both sides and perused the entire materials available on record, the Judgements passed by the learned Trial Court and the Appellate Court and the grounds of revision. Now the points for determination in this petition is that whether the judgement passed by the Learned Additional District Sessions Court, Virudhunagar at Srivilliputhur in Crl.A.No.154 of 2011 by confirming the judgement of conviction passed by the learned Trial Court in C.C.No.660 of 2007 is sustainable in law and on facts. 9/18 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.248 of 2019 Point:
9) The prosecution case is that on 19.08.2007 at about 03.00p.m.
when the deceased along with two others namely Manikandan and Arjunan were proceeding in a two wheeler in Sattur to Mettamalai Road opposite to the TASMAC Shop, one TATA 709 Mini Lorry bearing registration No.TN-67-B-4671 was came in a rash and negligent manner and hit the Hero Splender Two wheeler bearing registration No.TN-67-T-3592. Due to which the deceased Mariselvam sustained grievous injuries and died on the spot and the two other pillion riders namely Manikandan and Arjunan were sustained injuries.
10) In order to prove the case of prosecution P.W.1 to P.W.10 were examined and Ex.P.1 to P.11 were marked. In this case P.W.1 is the defacto-complainant as well as the injured witness and he deposed about the manner of accident, but he failed to mention about the rash and negligent act of the accused. The P.W.1 stated in his evidence that the vehicle came in a high speed, there is no evidence to enumerate what is the high speed. P.W.2 also in his evidence deposed that the vehicle came in a high speed and dashed against the Two Wheeler but not mention about the rash or 10/18 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.248 of 2019 negligent act of the accused. P.W.2 also stated that vehicle came in a high speed and there is no evidence about what is the high speed. In this context, the learned counsel appearing for the petitioner has cited 1999 ACJ 1378 State of Karnataka vs Satish wherein the Hon'ble Supreme Court In Para.4 held that :
''4. Merely because the truck was being driven at a ''high speed'' does not bespeak of either ''negligence'' or ''rashness'' by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by ''high speed''. ''High speed'' is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by ''high speed'' in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no 11/18 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.248 of 2019 presumption of ''rashness'' or ''negligence'' could be drawn by invoking the maxim ''res ipsa loquitur''. There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.''
11. On careful perusal of the above said judgement, it is clear that merely because the vehicle was driven at high speed does not speak of either negligence or rash by itself. The prosecution has to establish as to what is meant by high speed in the facts and circumstances of the case. In the absence of any material on the record no presumption of rash or negligence could be drawn by invoking the maximum ''res ipsa loquitur''.
12. In this case also the witnesses stated about the high speed, the prosecution has not established what is the high speed. Therefore, the 12/18 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.248 of 2019 prosecution has failed to prove the rash and negligent act of the driver of the offending vehicle.
13. Further the learned counsel appearing for the accused argued that the prosecution has failed to mark the wound certificate through the doctor who treated the victim. Whereby the accused entitled for acquittal by giving benefit of doubt. The learned counsel for the petitioner relied upon the judgement in N.Kinnaskandan vs State rep. by Inspector of Police, Bungalowpudur Police Station, Gobichettipalayam, Erode District in Crl.R.C.No.1118 of 2020 dated 16.12.2020 wherein this court in Para No.12 held as follows:
''The accident register(Ex.P.12) was marked through P.W.8/Investigating Officer and not marked in the manner known to law. It is only Ex.P.12, but also Exs.P.8 to P16, marked through the Investigating Officer/P.W.8. Thus, the prosecution did not follow the procedure while marking the above documents during the trial. The documents/Exs.P.8 to P16 cannot be considered and it has not marked as per law. In view of the same, the courts below placed reliance on these 13/18 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.248 of 2019 documents and convicted the petitioner is not proper.''
14. On careful perusal of the above said judgement it is clear that the prosecution has to mark the Accident Register and the medical records through the concerned doctor who treated the victim and the Investigating Officer is not a competent person to speak about the medical records. In this case also the medical records, wound certificate has not been marked by the doctor who treated the victim.
15. Further the Trial Court mainly relied upon the rough sketch drawn by the Investigation Officer, but there is no evidence that who identified the place of occurrence. The competent witness to speaks about the above said place of occurrence are P.W.1 and 2 and other eye witness, but the Investigation Officer failed to examine any witness near to the place of occurrence. Further the P.W.1 and 2 have not identify the place of occurrence. While so, it is the duty of the prosecution to establish as to how the Investigation Officer identified the place of occurrence and drawn the rough sketch. Even according to the prosecution, van dashed against the Two Wheeler, thereby, the injured sustained injuries. While so there is no any reference either in the rough sketch or in the Mahazar with regard to the 14/18 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.248 of 2019 blood stains. Therefore, the prosecution has failed to prove the drawing of rough sketch and observation Mahazar prepared by the Investigation Officer.
16. Therefore, the available evidences are not sufficient to prove the rash and negligent act of the accused and the trial court has failed to consider the above said aspects and merely based on the rough sketch drawn by the Investigation Officer and without any evidence for rash and negligent act of the accused wrongly convicted the accused. The Appellate Court has also failed to consider the above said aspects and wrongly confirmed the Judgement of the Trial Court. Therefore, as discussing above this court is of the opinion that the prosecution has failed to prove the charges framed as against the accused for the offences under section 279, 337 (2counts) and 304(A) of IPC. The Trial Court as well as the Appellate Court has failed to consider the above said discrepancy and wrongly convicted the accused.
Therefore, the Judgement and conviction passed by the Trial Court in C.C.No.158 of 2007 and the Judgement of the Appellate Court in Crl.A.No. 154 of 2011 by confirming the judgement and conviction of trial court are unsustainable and liable to be set aside.
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17. In the result, this Criminal Revision Petition is allowed and the judgement of conviction passed by the learned trial court in C.C.No.158 of 2007 and the judgement of the Appellate Court in Crl.A.No.154 of 2011 by confirming the trial court judgement and conviction are set aside. The accused is acquitted from the charges under section 279,337(2 counts) & 304(A) of IPC and he, be set at liberty subject to other cases, if any. The bail bonds executed by the accused shall stand cancelled. The fine amount, if any paid by the accused, shall be refunded.
06.11.2023 Index : Yes / No Internet : Yes / No Neutral Citation Case :Yes/No gvn 16/18 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.248 of 2019 To
1. The Additional District Sessions Court, Virudhunagar at Srivilliputhur,
2. The Sub-Inspector of Police, Sattur Town Police Station, Virudhunagar District.
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