Madras High Court
Ulaganathan vs / on 21 March, 2019
Author: G.Jayachandran
Bench: G. Jayachandran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 21.03.2019
Coram:
THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN
Criminal Revision Case No.424 of 2012
Ulaganathan .. Petitioner
/versus/
State rep.by
Inspector of Police,
Traffic Investigation Wing,
G.N.T.Road,
Madhavaram,
Chennai-68.
(Crime No.46 of 2009) .. Respondent
Criminal Revision Case filed under Section 397 & 401 of the Code of
Criminal Procedure, praying to call for the records pertaining to the judgment
made in C.A.No.45 of 2011 passed by the learned Additional Sessions Judge-cum-
Fast Track Court IV, Ponneri, Thiruvallur District dated 16.03.2012 confirming the
conviction and modifying the sentence under Section 304A of IPC sentencing him
to undergo one month Simple Imprisonment as against the judgment of the
learned Judicial Magistrate No.II, Ponneri, Thiruvallur District made in
C.C.No.263/2009 dated 28.07.2011 convicting him under 279, 337 & 304 A of IPC
and sentencing him to undergo 2 months Simple Imprisonment under Section 304
A IPC and no separate imprisonment is imposed under Section 279, 337 IPC as
per Section 71 of IPC and to set aside the same.
For Petitioner :Mr.T.R.Ravi
For Respondent :Mr.T.Shanmuga Rajeswaran,
Government Advocate (Crl.Side)
http://www.judis.nic.in ----
ORDER
The revision petitioner is the accused in C.C.No.263 of 2009 on the file
of Judicial Magistrate No.II, Ponneri, based on the complaint given by one
Balaraman.
2. The case was registered against the revision petitioner on
22.01.2009 by the respondent police. According to the complaint, on 22.01.2009
at about 9.30 a.m, Balaraman along with his friend Sathish traveling in their two
wheeler bearing registration No. TN 20 D 4953 towards their Office. The
container lorry bearing registration No. TN 04 M 4512 came rash and negligently
from their back and hit the two wheeler. While Sathish was run over by the lorry,
the defacto complainant Balaraman had sustained injury on his left side shoulder.
They were taken to Sugan Hospital for treatment. In the hospital, Sathish died,
the police recorded the statement of Sathish who was in the hospital and
proceeded with the investigation. The petitioner was arrested on the next day.
3. The trial Court tried the accused for the offences under Sections
279, 337 and 304 (A) of IPC.
4. To prove the charges, the prosecution has examined 15 witnesses
and marked 16 exhibits. The Trial Court, relying upon the evidence of PW-1
[Balaraman] one of the injured witness, the evidence of Motor Vehicle Inspector
[PW-9], the evidence of Post-mortem Doctor Kannan [PW-12] and the Accident
http://www.judis.nic.in
Registers [Exs.P9 and P10], concluded that PW-1 [Balaraman] and the deceased
Sathish got injury in the said accident and the accident has occurred due to rash
and negligent driving of the accused/appellant. The trial Court has pointed out
that in the Highways, heavy vehicles should maintain atleast a distance of 10
meters in between them but when the accused was driving the lorry, he has failed
to maintain that distance and hit the motor vehicle driven by the deceased,
thereby caused the accident. Therefore, the trial Court has held that the
prosecution has sufficiently proved beyond doubt the guilt of the accused for the
offences under Sections 279, 337 and 304 A of IPC. The lower appellate Court
has also confirmed the conviction except modifying the sentence from 2 months
Simple Imprisonment to one month Simple Imprisonment for the offence under
Section 304(A) of IPC. Both the Courts below have not imposed separate
imprisonment for the offence under Sections 279 IPC and 337 IPC. The trial
Judge, while recording her decision not to impose separate imprisonment for the
offence under Sections 279 and 337 of IPC, has referred to Section 71 of IPC.
The lower appellate Court, while confirming the judgment of the trial Court had
re-appreciated the evidence and modified the period of imprisonment from two
months Simple Imprisonment to one month Simple Imprisonment.
5.The learned counsel appearing for the revision petitioner would point
out that the prosecution has failed to prove the case of rash or negligent driving
as cause for the accident. The counsel would point out that none of the witnesses
has
http://www.judis.nic.in identified the appellant as driver of the offending vehicle. The accident
registers [Exs.P9 and P10] indicate that the two wheeler driven by PW-1
[Balaraman] carrying Sathish in the pillion hit against a container lorry. Whereas,
PW-1[Balaraman] and other prosecution witnesses has deposed that the lorry hit
the two wheeler from behind. A vital contradiction in the prosecution case is due
to embellishment of PW-1[Balaraman] defacto complainant to cover up his fault of
driving the two wheeler rash and negligently. The learned counsel would also
submit that when the prosecution has failed to identify the driver of the trailer in
the manner known to law, taking advantage of the surrender of the driver to the
police pressure cannot be a ground for convicting the petitioner without proper
identification of the driver and the offending vehicle.
6. Per contra, the learned Government Advocate (Crl.side) would
submit that the statement recorded by the Doctor in the accident registers[Exs.P9
and P10] in a causal manner cannot be a substantive piece of evidence, except
the identity of the injured person and the injury for other purpose the records in
the accident register are only collateral document. Therefore, the learned
Government Advocate (Crl.side) would submit that the complaint and the First
Information Report, based on the complaint of the complainant (PW-1) has led to
investigation. The owner of the offending lorry has been examined by the
prosecution, who has categorically deposed that the accused called him over
phone; informed about the accident; collected RC book of the lorry and
surrendered the documents to the police on the next day of the accident, since
R.C.
http://www.judis.nic.in Book of the vehicle, which caused the accident was collected by the
Investigating Officer. Therefore, there cannot be no doubt regarding the identity
of the vehicle or the driver.
7. As far as the rash and negligent driving is concerned, the counsel
would submit that the motor vehicle inspector report would clearly prove that the
two wheeler was extensively damaged on the rear side, which goes to show that
the container lorry has hit the two wheeler from behind. The injury sustained by
the deceased Sathish and PW-1 [Balaraman] clearly proves the gravity of injury
due to rash and negligent driving of the appellant. The trial Court as well as the
lower appellate Court ought to have given separate sentence for the offences
under Sections 279 and 337 IPC along with Section 304 A of IPC, since the rash
and negligence has caused death of Sathish and injury to Balaraman [PW-1]. The
Courts below have taken a very lenient consideration on sentence, while the trial
Court has imposed only two months Simple Imprisonment, the same has been
modified into one month Simple Imprisonment by the lower appellate Court,
which needs no interference in the revision.
8. On cumulative appreciation of the evidence as well as the
submissions made by the respective counsels this Court finds there is some
discrepancy in the accident reports and the First Information Report regarding the
manner in which the accident had taken place. Comparing the notings found in
the accident register and the complaint given by the victim himself, the later gains
more
http://www.judis.nic.in probative value since it is the statement of the eye witness whereas, what is
recorded in the accident registers is only the statement recorded by the Doctor
what he heard from the attender of the patient. It is not even certain whether
the said statement was given by the injured person himself or the person, who
brought the injured person. Further, the manner of accident and the conduct of
the two wheeler and the container lorry could be easily visualized from the motor
vehicle inspector's report that the two wheeler has sustained extensive damage
on the rear side and not on the front side. Therefore, it is clear that the container
lorry has hit the two wheeler from behind and not otherwise.
9. Regarding the identity of the driver, though it is contended by the
learned counsel appearing for the petitioner that no witnesses have identified the
driver, the evidence of PW-11 Supervisor of Indane Transport proves that the
appellant called him over phone and informed about the accident. On the next
day, he collected the RC book of the vehicle from him and surrendered the
documents as well as the accused Ulaganathan to the police. In this regard, a
doubt is raised by the learned counsel appearing for the revision petitioner that
PW-11[Alphones], who is running nearly 40 container lorries, is obliged to the
police. Therefore, he has given RC book of one of the vehicle and surrendered the
appellant, who is no way connected with the accident.
10. In the facts and circumstances, it is doubtful whether a person,
who will voluntarily surrender and make a fake statement fully knowing the
consequence.
http://www.judis.nic.in The evidence of PW-11 as it is spoken, has to be taken into
consideration and it is improper to attribute some thing which is not available in
his evidence. Hence, this Court holds that the identity of the offending vehicle as
well as the driver is established by the prosecution. While the identity of the
vehicle is disclosed and mentioned in the First Information Report itself, the
evidence of PW-11, who discloses the fact that the accused called him over phone
and informed about the accident as well as the RC book of the vehicle along with
the accused surrendered to the police is suffice to hold that the accused is the
person, who was driver of the offending vehicle at that point of time.
11. Coming to the conviction, this Court would wish to point out that
when the Court holds the accused person guilty for several charges, imposing
imprisonment for one proven charge and leaving the other distinct charges,
without imprisonment, is not inconsonance with the law. More particularly,
Section 71 of IPC cannot be invoked for offence under Sections 337 and 304A of
IPC. Unfortunately, in this case, when the accident has caused the death of one
person as caused injury of another person due to his rash and negligent act.
Section 71 of IPC has no application when there are two victims one dead and
another injured.
12. In any event, as far as the period of imprisonment as modified by
the lower appellate Court for one month is concerned, this Court finds no error or
excessiveness in the period of sentence. Hence, this Criminal Revision Case is
liable
http://www.judis.nic.in to be dismissed.
13. In the result, this Criminal Revision Case is dismissed. The period
of sentence already undergone by the accused shall be given set off. The
respondent police is directed to secure the accused and commit him into the
prison to undergo the remaining period of sentence.
21.03.2019
Index:yes/no
Internet:yes/no
speaking order/non speaking order
ari/bsm
To
1.The Additional Sessions Judge-cum-Fast Track Court IV, Ponneri, Thiruvallur
District.
2.Inspector of Police, Traffic Investigation Wing, G.N.T.Road, Madhavaram,
Chennai-68.
3.The Public Prosecutor, High Court, Madras.
Dr.G.Jayachandran,J.
http://www.judis.nic.in Ari/bsm Crl.R.C.No.424 of 2012 21.03.2019 http://www.judis.nic.in