Madras High Court
Senthil Kumar vs State Rep. By on 29 September, 2009
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation 07.03.2019
Date of Judgment 06.06.2019
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.A.(MD)No.329 of 2009
and
Crl.MP(MD)No.1480 of 2019
Senthil Kumar : Appellant/Accused
Vs.
State rep. by
The Inspector of Police,
Railway Police Station,
Dindigul.
(Crime No.311 of 2003) : Respondent/Respondent
Prayer: Criminal Appeal filed under Section 374 of the
Criminal Procedure Code against the judgment made in S.C.No.127
of 2005, dated 29.09.2009 on the file of the Principal Assistant
Sessions Judge, Dindigul.
For Appellant : Mr.N.Mohideen Basha
For Respondent : Mr.A.Robinson,
Government Advocate (Crl.side)
http://www.judis.nic.in
2
JUDGMENT
This Criminal Appeal is directed against the judgment made in S.C.No.127 of 2005, dated 29.09.2009 on the file of the Principal Assistant Sessions Judge, Dindigul.
2.According to the prosecution, the accused was working as the cleaner to the school van TN-59-C-4959 of Andavar Matriculation School at Tanthondrimalai and since, the driver of the van was absent, on 22.07.2017 at 4.45 pm, the appellant had driven the said van for dropping the school children. While the van going from Nadupalayam to Emoor Village between Velliyanai-Karur at Km 7/800-900, an unmanned level crossing, the appellant had tried to cross the said level crossing, at that time a rail engine alone was coming and hit against the van, which was stopped at the crossing unable to cross and consequently, the school Watchman Kandasamy, Students Madu, Nandakumar, Karthika and Abinaya died and the students Aarthi and Kanimoozhi sustained grievous injuries and students Anitha and Arun sustained simple injuries and the appellant, who was not having a valid driving licence, caused a loss to the Railways to the tune of Rs.40,235/.- The Inspector of Police attached to Railway Police Station, Dindigul has filed a final report against the accused by examining the witnesses. http://www.judis.nic.in 3
3.In the trial court, 36 witnesses were examined and 16 Exhibits and 2 material objects were marked. When the accused was questioned about the incriminating circumstances, he denied the same. On the side of the accused, no witness was examined and no document was produced. The trial court convicted the appellant/accused for the offence under Section 304(A) IPC (5 counts) and for each count to undergo 2 years rigorous imprisonment and to pay a fine of Rs.5,000/-, in default to undergo 6 months simple imprisonment; for the offence under Section 338 IPC (2 counts), for each count to undergo 6 months rigorous imprisonment and to pay a fine of Rs.500/-, in default to undergo 2 months simple imprisonment; for the offence under Section 279 IPC (2 counts), for each count to undergo 6 months rigorous imprisonment and to pay a fine of Rs.500/-, in default to undergo 2 months simple imprisonment; for offence under Section 131 r/w 177 of the Motor Vehicles Act, to pay a fine of Rs.500/-, in default to undergo 2 months simple imprisonment, for the offence under Section 161 of the Railway Protection Act to undergo 1 year rigorous imprisonment. Aggrieved by the judgment passed by the trial court, the appellant/accused is before this court. http://www.judis.nic.in 4
4.The learned counsel for the appellant/accused submitted that in this case, the evidence of the prosecution witnesses are contrary to each other and even according to the prosecution, the accused is not having any valid driving licence, if that be so, how PW16 the Correspondent of the said school allowed the appellant to drive the vehicle carrying school children and why did not the respondent police array him as an accused; that the prosecution witnesses including the parents of the deceased children, who deposed in anger, had never stated during the investigation that the appellant only drove the vehicle, first time in the court they deposed that the vehicle was driven by the appellant, who were not at all eye witnesses, more particularly there are discrepancy in their evidence as to how long the appellant was working as acting driver; that the specific case of the appellant is that the van stopped due to technical fault at the level crossing itself, while the appellant got down the vehicle and the Rail Engine hit the Van and the Motor Vehicle Inspector had also deposed that he is not able to drive the vehicle to verify the same, however, had stated that the vehicle was not having any technical fault; that since the said Kandasamy died in the accident, the prosecution with the help of PW16 has wantonly fixed the appellant as an accused, who had http://www.judis.nic.in 5 never driven the vehicle on the fateful day. In view of the above circumstances, the appellant/accused is entitled to acquittal and prays that the criminal appeal has to be allowed.
5.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that trial court 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 appellant 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 appeal may be dismissed.
6.Heard both sides and perused the materials available on record.
7.The first contention raised on the appellant/accused that at the time of occurrence, the accused was not driving the offending vehicle and only Kandasamy drove the offending vehicle and when Kandasamy attempted to cross the railway crossing, at the time, the engine of the offending vehicle was repaired and it http://www.judis.nic.in 6 was not possible for the driver to start it, at the time, the train came in a speedy manner and dashed against the vehicle and there was no connection between the occurrence and the accused and prays that he is entitled to acquittal.
8.On the side of the prosecution, it is argued that at the time of occurrence, the accused was the driver of the vehicle and he drove the vehicle in a rash and negligent manner and after he know the train came, he attempted to cross the railway line and due to his negligent, the accident occurred and prays that the accused is not entitled to acquittal.
9.In this case, PW11 is the Teacher, who is working in Andavar Matriculation School at Thanthondrimalai. PW11 deposed that at the time of occurrence, the accused is the driver of the offending vehicle and only due to his negligence, he crossed the railway line even though he knew that the train came in the opposite direction. PW15 is the Correspondent of Andavar Matriculation School and he categorically sated that at the time of occurrence, the accused only drove the offending vehicle. PW8 is the father of the deceased Kandakumar.
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10.PW8 deposed that on 22.07.2003, his son was going to the school in the offending vehicle and he saw that the accused only drove the offending vehicle and afterwards, he heard that the offending vehicle met with an accident and his son died.
11.PW19 is the father of the deceased Abinaya. PW19 stated during his evidence that his daughter usually go to the school in the offending vehicle and on the date of occurrence, only the accused drove the offending vehicle.
12.PW20 is the father of the deceased Karthika and Kanimozhi. PW20 deposed that his daughters usually go to the school in the offending vehicle and on the date of occurrence, only the accused drove the vehicle and afterwards heard that the offending vehicle met with an accident.
13.PW22 is the father of the injured Arun. PW22 stated during his evidence that usually his son go to the school in the offending vehicle and on the date of occurrence, only the accused drove the vehicle and afterwards he heard that the offending vehicle met with an accident.
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14.In this case, PW8, PW11, PW15, PW18 to PW20, PW22 have categorically stated that at the time of occurrence, only the accused drove the vehicle. When the parents sent their kids to school in a school van, they definitely saw daily who drove the vehicle. Further, they requested the driver to drive the vehicle in a caution manner. Further, no contra evidence was let in on the side of the accused stating that at the time of occurrence, he is not the driver of the offending vehicle. Hence, from the evidence of PW8, PW11, PW15, PW18 to PW20, PW22, it reveals that only at the time of occurrence, the accused drove the offending vehicle.
15.It is submitted on the side of the appellant/accused that due to mechanical defect, the accident occurred. Hence, the accused is not responsible for the accident.
16.In this case, the Motor Vehicle Inspector was examined as PW32 and the Motor Vehicle report was marked as Ex.P13. On perusal of Ex.P13, wherein it is stated that there was no mechanical defect in the offending vehicle and the accident was not due to mechanical defect. Hence, the argument put forth on the side of the appellant/accused stating that due to mechanical defect, the http://www.judis.nic.in 9 accident occurred is not at all acceptable. Further, on the prosecution side to prove the accident, PW1, PW4, PW5, PW7 to PW10 were examined. PW7 to PW10 are the officials of the Railway. PW4, PW5 and PW7 are the independent witnesses. PW7 to PW10 deposed that on 22.7.2003 even though the accused knowing that the train came in the opposite direction, he crossed the railway line in a rash and negligent manner and at that time, the train came in a speedy manner and dashed against the Van.
17.PW4 during his evidence stated that the driver saw the train came in the opposite direction, even though he crossed the railway line in a rash and negligent manner and only due to his negligent, the accident is occurred.
18.PW5 deposed that on 22.07.2003 at 4.45 pm, when he proceeded to his house, at that time he saw that the train came from south to north and at that time, the offending vehicle came east to west and when he saw the train, he shows his hand to the accused to stop the Van. But the accused drove his vehicle in a rash and negligent manner and crossed the railway line and at that time, the train came and dashed against the Van. http://www.judis.nic.in 10
19.PW6 stated during his evidence that when he crossed the railway line, at that time he saw that the train came from south to north and at that time, a Van driver attempted to cross the railway line and he shows his hand to the accused stating that the train came in the opposite direction. But, the driver crossed the railway line and due to his negligence, the accident occurred.
20.On careful perusal of evidence of PW1, PW4 to PW10, it reveals that even though the accused knowing that the train came in the opposite direction, he crossed the railway line and only due to his negligence, the accident occurred. It is, therefore, held that even though the accused knowing very well that the train came in the opposite direction, in a rash and negligent manner, attempted to cross the railway line and only due to his negligence, the accident occurred. Hence, the accused is found guilty under Section 161 of the Railway Protection Act.
21.The trial court after careful perusal of the entire materials available on records, had given a correct finding, which does not require any interference by this court. However, considering the family circumstances of the appellant, the punishment imposed on the appellant requires modification. http://www.judis.nic.in 11
22.In the result, the Criminal Appeal is partly allowed. The punishment imposed on the appellant under Section 304(A) IPC (5 counts) is reduced to one year (for each count) and he is directed to undergo 1 year RI (each count) for the said offence and the fine amount imposed by the trial court for the said offence is confirmed. In respect of other offences, the findings of the Courts below are confirmed. The sentences are directed to run concurrently. The period of sentence, if any, already undergone by the appellant shall be given set off under Section 428 of Cr.P.C. Consequently, connected Miscellaneous Petition is closed.
06.06.2019 Index:Yes/No Internet:Yes/No vsd/er http://www.judis.nic.in 12 T.KRISHNAVALLI,J vsd/er To,
1.The Principal Assistant Sessions Judge, Dindigul.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Crl.A(MD)No.329 of 2009
06.06.2019 http://www.judis.nic.in