Madras High Court
Arumugam : Revision vs State Rep. By The Inspector Of Police on 19 July, 2018
Author: T.Krishnavalli
Bench: T.Krishnavalli
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 19.07.2018
Date of Reservation
09.07.2018
Date of Judgment
19.07.2018
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.R.C(MD)No.1062 of 2008
Arumugam : Revision Petitioner/
Appellant/Accused
Vs.
State rep. by the Inspector of Police,
Taluk Police Station,
Thanjavur District.
Crime No.638 of 2008. : Respondent/Respondent/
Complainant
Prayer: Criminal Revision has been filed under Section 397 r/w 401 of
Criminal Procedure Code, against the judgment passed by the Judicial
Magistrate No.2, Thanjavur, made in C.C.No.187of 2005, dated 19.03.2008,
which was confirmed by the Additional Sessions Judge-cum-Special Judge under
E.C. Act, Thanjavur, in C.A.No.40 of 2008, dated 29.10.2008.
!For Revision Petitioner : Mr.V.Chandrapandi
for Mr.A.Arun Prasad
^For Respondent : Ms.M.Anantha Devi
Government Advocate
(Criminal side)
:JUDGMENT
This Criminal Revision is directed against the judgment passed by the Judicial Magistrate No.2, Thanjavur, made in C.C.No.187of 2005, dated 19.03.2008, which was confirmed by the Additional Sessions Judge-cum-Special Judge under E.C.Act, Thanjavur, in C.A No.40 of 2008, dated 29.10.2008.
2.According to the prosecution, on 22.10.2004 at 17.30 hours on Thanjavur-Naduvur Road near Kollangarai at Oxford Matriculation School, the witness Rengapasiyam along with his son Raja Vasanthakrishnan proceeded by walk and at that time, the accused drive the Bajai Auto TN-49-L-1429 in a rash and negligent manner and suddenly turned in the mud road and hit against the witness Rengapasiyam and his son Raja Vasanthakrishnan. In the impact Raja Vasanthakrishnan died on the spot, while the witness Manikandan sustained grievous injuries. The Sub Inspector of Police, attached to Taluk Police Station Thanjavur, has filed a final report for the offences under Sections 279, 338 and 304(A) IPC against the driver of the auto.
3.In the trial court, 16 witnesses were examined and 10 Exhibits and one material object were marked. When the accused was questioned about the incriminating circumstances, he denied the same. The trial court convicted the accused and sentenced him to pay a fine of Rs.500/-, in default to undergo SI for two weeks for the offence under Section 338 IPC and to undergo 6 months of RI and to pay fine of Rs.2,000/-, in default to undergo SI for 2 months under Section 304(A) IPC.
4.Aggrieved by the judgment passed by the trial court, the accused filed an appeal in C.A.No.40 of 2008, which was heard by the Additional Sessions Judge-cum-Special Judge under E.C. Act, Thanjavur. The first appellate Court confirmed the judgment of the trial court. Aggrieved by the judgment of the courts below, the revision petitioner is before this court.
5.The learned counsel for the petitioner submitted that the there are contractions between the evidence of the prosecution witnesses and the courts below failed to consider that PW2 has given conflicting statement in his chief examination as well as in the cross examination and the courts below have erroneously given more weightage to the evidence of PW1, who is the father of the deceased and the evidence of PW1 ought to have been rejected by the Courts below and the investigation of the case has not been done fairly and it is fully of embellishments and the medical evidence does not support the evidence of the eye witnesses and prays that the revision petitioner is entitled to acquittal.
6.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that 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 offence, convicted the revision petitioner and passed proper sentence, which do 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.PW1 is the father of the deceased and he gave Ex.P1 complaint to the police. PW1 in his complaint stated that he decided to join the deceased in Oxford Matriculation School at Kollangarai, which lies in between Thanjavur and Naduvur and to know the details for joining his son (deceased) in the above school, he travelled in a Mini bus and then, he and the deceased get along from the bus and proceeded from north to south and he went behind the deceased at 5.30 pm, while he and the deceased went on the mud road near the above school, in the opposite direction, one lorry came and a load auto came between them and the driver of the above loaded auto drove his vehicle in a rash and negligent manner and in order to give way to the above lorry, the load auto got down in the mud road and dashed against his son and the concrete cover for the well fell down on his son and his son sustained injury and died on the spot and then he gave the above complaint.
9.PW1 during his evidence deposed that on 29.10.2004 at 5.30 pm, he went to join his son in a school at Velanpatti and he went behind his son, at that time, in the opposite direction one lorry came and a load auto also came behind them, which contained concrete cover for the well and in order to give way to the lorry and the auto driver applied sudden brake and due to it, the concrete cover for the well fell down on his son and his son sustained injury and he died on the spot and then, he gave the complaint to the police.
10.PW2 is the Cleaner of the offending vehicle. PW2 stated during his evidence that while they proceeded from Kollangarai, one lorry came in the opposite direction and the driver of the loaded auto get down in the mud road and dashed against a boy went in TVS-50 and the above boy died on the spot. PW2 stated during his evidence that the deceased came in a two wheeler. But the above fact was not stated by PW1 either in the complaint or in his evidence. He has not stated that the driver of the offending vehicle drove his vehicle in a rash and negligent manner. Further, PW2 is the Cleaner of the load auto. He is the interested witness. Hence, much importance cannot be given to the evidence of PW2.
11.PW3 is cited as eye witness. PW3 stated that during the year 2004 at 4.00 pm, he waked near the Kottangarai Oxford School, he saw that one lorry came from east and in the opposite direction, one auto came with a load of cover for the well and when the auto attempted to give way to the above lorry, the auto got down in the mud road and dashed against the boy and capsized and due to it, the boy died on the spot. Hence, PW1's evidence is corroborated with the contents found in Ex.P1 complaint.
12.PW2 is the cited as eye witness. But he turned hostile and did not support the case of the prosecution. PW2 is the cleaner of the offending vehicle. In order to safeguard his driver, he did not support the case of the prosecution.
13.It is to be noted here that even though PW2 has not supported the case, he has stated during his evidence that the auto dashed against the deceased and due to it, the cement cover loaded in the auto fell down on the body of the deceased and the boy died on the spot. Even though, PW1 has not specifically stated the rash and negligent driving of the auto driver, on careful perusal of the rough sketch, it reveals that the auto driver had driven the vehicle in a rash and negligent manner and hit against the boy and due to it, the concrete cement cover fell on the boy, who walked in the mud road.
14.As per the prosecution case, the load auto came behind PW1 and his son and they walked only on the mud road from north to south and one lorry came in the opposite direction and in order to give way to the above lorry, the driver of the offending vehicle drove it in the mud road and dashed against the deceased.
15.In this case, the rough sketch produced was carefully perused. On perusal of the rough sketch, it is seen that the lorry came in the opposite direction and it is not necessary for the driver of the offending vehicle to give way to the vehicle which came in the opposite direction. Only due to the negligent act on the part of the driver of the offending vehicle, he drove his vehicle in the mud road and dashed against the boy, who walked in the mud road. In the case of young one, went on the road, it is the duty cast upon the driver of the vehicle to drive the vehicle in a careful manner. But in this case, the driver of the auto drove his vehicle in a rash and negligent manner and dashed against the boy, who walked in the mud road and due to it, the boy died on the spot.
16.For all the reasons stated above, this court is of the considered view that the prosecution has proved the case beyond reasonable doubt and accordingly, the impugned judgment of conviction and sentence are confirmed. However, considering the age and family circumstances of the revision petitioner/sole accused, the sentence imposed on the revision petitioner by the courts below is modified into three months R/I for the offence under section 304(A)IPC. In respect of fine amount, the findings of the Courts below are confirmed for the offence under Section 338 and 304(A) IPC. The period of sentence already undergone by the accused is set off under Section 428 of Cr.P.C.
17.With the above modification, these criminal revisions are partly allowed.
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