Madras High Court
Eswaran vs The Inspector Of Police on 15 September, 2022
Crl.R.C.No.1465 of 2017
THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 09.09.2022
Pronounced on : 15.09.2022
CORAM:
THE HON'BLE Mr. JUSTICE SUNDER MOHAN
Crl.R.C.No.1465 of 2017
Eswaran ...Petitioner
Versus
The Inspector of Police,
Mettur Police Station,
Salem District
Cr.No.28 of 2013. ... Respondent
PRAYER : Criminal Revision Petition filed under Section 397 r/w 401
Criminal Procedure Code, to call for the records relating to the orders passed
in Crl.A.No.31 of 2017 dated 13.10.2017 on the file of the III Additional
District & Sessions Judge, Salem confirming the Judgment passed in
C.C.No.52 of 2013 dated 22.02.2017 on the file of the Judicial Magistrate
No.I, Mettur set aside the same.
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https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1465 of 2017
For Petitioner : Mr.S.Doraisamy
For Respondent : Mr.S.Balaji,
Government Advocate (Crl. Side)
ORDER
The Petitioner/Accused has preferred the above Revision, challenging the Judgement passed in C.A.No.31 of 2017 on the file of the learned III Additional District and Sessions Judge at Salem, confirming the Judgement passed in C.C.No.52 of 2013 dated 22.02.2017 on the file of the learned Judicial Magistrate No.I, Mettur. The Trial Court convicted the Petitioner for the offences under Sections 304 (A) (2 Counts) and 279 IPC. The Trial Court imposed a sentence of one year S.I (2 Counts) for 304 (A) IPC and a fine of Rs.5,000/- (Rupees Five Thousand only) and in default to undergo three months S.I. The Trial Court imposed a fine of Rs.500/- (Rupees Five Hundred only) for the offence under Section 279 IPC and in default to undergo one month S.I.
2. The case of the prosecution is that 16.01.2013 at about 21.45 hrs, the accused while driving the Bus bearing Registration No.PY-01-BA-5374 from Bhavani to Mettur caused the death of the deceased Mr.Anbarasu and Chitra by acting in a negligent manner without locking the battery box door on the Page 2 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1465 of 2017 left side of the Bus which opened and hit the pedestrians and caused their death.
3. The prosecution had examined 15 witnesses and marked 8 exhibits on their side. P.W.1, P.W.7 and P.W.9 were examined as eye witnesses. P.W.1 is the mother of the deceased and who had lodged the First Information Report. She in her deposition would state that the Bus belonging to M.S.S.Travels, which came from Bhavani to Mettur had caused the death of her two children. The death was caused because the door of the battery box on the left hand side of the Bus opened and hit the children. P.W.2 is the father of the deceased; he went to the Hospital on hearing the news of death of his children. P.W.3 is the brother of P.W.1, who also came to the accident spot on hearing the news. P.W.4 is the Grandfather of the deceased who also came to the occurrence on hearing the news. P.W.5 is the tea shop owner who also heard about the accident. However, he would say that he knew that the accused drove the offending bus on the fateful day. P.W.6 is the son-in-law of P.W.4, who also came to the occurrence on hearing the news. P.W.7 is the sister of the deceased children who was examined as an eye witness. P.W.8 is the Mahazar witness. P.W.9 is another witness who said to have witnessed the Page 3 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1465 of 2017 occurrence. P.W.10 is another relative of the deceased children who went to the occurrence after hearing the news. P.W.11 is the Doctor who had conducted the post mortem on the deceased Chitra. P.W.12 is the Motor vehicles Inspector. P.W.13 is the Doctor who conducted the post mortem on the deceased Mr.Anbarasu. P.W.14 is the Sub Inspector who registered the First Information Report. P.W.15 is the Investigating Officer of this case.
4. The Trial Court had disbelieved the evidence of P.W.7 and P.W.9 stating that their presence in the scene of occurrence is highly doubtful. The Trial Court convicted the Petitioner on the basis of evidence of P.W.1. The Trial Court found that the Petitioner was negligent in not locking the door of the battery box properly as the result of which the incident took place. The Appellate Court confirmed the finding of guilt recorded by the Trial Court. The Appellate Court relied upon the evidence of P.W.5 whose evidence is that he knew very well that the Petitioner drove the offending vehicle on the fateful day, to conclude that the petitioner was a person that drove the bus which caused the occurrence.
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5.Heard Mr.S.Doraisamy, learned Senior Counsel for the Petitioner and Mr.S.Balaji, learned Government Advocate (criminal side) for the Respondent.
6. The learned Senior Counsel submitted that the prosecution had not established that the Petitioner was the driver of the offending vehicle. None of the eye witnesses namely P.W.1, P.W.7 and P.W.9 have identified the Petitioner as the person who drove the offending vehicle. The learned Senior Counsel relied upon the cross examination of P.W.1 which reads as follows:-
P.W.1 (Amsa) “tpgj;ij Vw;gLj;jpa vk;/v!;/v!; vd;w jdpahh; ngUe;ij ahh; rk;gtj;jpd;nghJ Xl;o te;jhh;fs; vd;W vdf;F bjhpahJ/”
7.The learned Senior Counsel further submitted that P.W.7 and P.W.9 were disbelieved by the Trial Court. The Court below ought not to have a relied upon the evidence of P.W.5 who was not an eyewitness to the occurrence. P.W.5 is the owner of a tea shop near the occurrence. His evidence did not conclusively establish that the Petitioner drove the offending Page 5 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1465 of 2017 vehicle. The learned Senior Counsel hence prayed that the findings of the Courts below are perverse and called for interference by this Court.
8.Mr.S.Balaji, the learned Government Advocate (Criminal side), would submit that P.W.5 is a reliable witness since he runs a tea shop near the place of occurrence and he knows the accused personally. Though, he has not witnessed the occurrence, he has categorically stated that he knew that the Petitioner drove the offending vehicle.
9. I find that P.W.7 and P.W.9 have been disbelieved by the Courts below. P.W.1 in her cross examination which is extracted above had admitted that she did not know who drove the offending vehicle. There are no other eye witnesses. The only evidence left is that of P.W.5. P.W.5 has admitted that he had not witnessed the accident. However, he would say that he knew that it was the Petitioner who drove the offending vehicle. The prosecution has not made it clear as to how P.W.5 came to know that the petitioner was the driver of the offending vehicle. There is nothing in the evidence of P.W.5 to suggest that. He has no direct knowledge and he has not seen the occurrence admittedly. His evidence cannot be relied upon to establish the petitioner’s guilt. The prosecution has to prove the case beyond the Page 6 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1465 of 2017 reasonable doubt. Therefore the findings of Courts deserves to be set aside. This Court reiterates the settled principle while appreciating evidence in a Criminal Case that suspicion however strong cannot take the place of proof. The Hon'ble Apex Court in Basheera Begam vs. Mohd.Ibrahim case reported in (2020) 1 SCC 174 reiterated these principles in the following passage:-
“...
189. It is well settled, suspicion however strong cannot substitute proof beyond reasonable doubt. Enmity as a result of property related disputes may given rise to suspicion. However, conviction can never be based on suspicion unless the prosecution clearly proves circumstances conclusively and all circumstances proved should only point to the guilt of the accused. Possibility of any connection other than the conclusion of guilt of the accused would vitiate or conviction.”
10.For the foregoing reasons, the Judgement of the learned III Additional District & Sessions Judge, Salem confirming the Judgement passed by the Trial Court is set aside and the accused is set at liberty. Page 7 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1465 of 2017
11.Accordingly, the Criminal Revision is allowed. The bail bond if any executed by the Petitioner/Accused shall stand cancelled.
15.09.2022 Index : Yes/No Internet : Yes/No Speaking Order/Non Speaking Order dk Page 8 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1465 of 2017 To
1.The III Additional District & Sessions Judge, Salem.
2. The Judicial Magistrate No.I, Mettur.
3.The Inspector of Police, Mettur Police Station, Salem District.
4.The Public Prosecutor, High Court of Madras Chennai – 600 104.
Page 9 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1465 of 2017 SUNDER MOHAN, J.
dk Pre delivery order made in Crl.R.P.No.1465 of 2017 15.09.2022 Page 10 of 10 https://www.mhc.tn.gov.in/judis