Madras High Court
Vadivel vs State Represented By on 11 July, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.R.C.No.494 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 11.07.2022
CORAM :
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.R.C.No.494 of 2015
Vadivel .. Petitioner
Vs.
State Represented by
The Inspector of Police,
Maharaja Kadai Police Station,
Krishnagiri District.
Crime No.260 of 2009. ..Respondent
PRAYER : Criminal Revision Case has been filed under sections 397
read with 401 of Criminal Procedure Code to set aside the concurrent
judgment and sentence dated 16.02.2015 passed in Criminal Appeal
No.51 of 2014 on the file of Principal District and Sessions Judge,
Krishnagiri against the judgment dated 16.07.2014 passed in C.C.No.21
of 2013 on the file of Chief Judicial Magistrate, Krishnagiri.
For Petitioner : Mr.K.Selvarangan
For Respondent : Mr.N.S.Suganthan
Government Advocate (Crl.Side)
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Crl.R.C.No.494 of 2015
ORDER
Heard the learned counsel for the petitioner and the learned Government Advocate (Crl.Side) for the State.
2. On 31.12.2009 at 20.30 hours, the respondent police registered a Motor Accident case in Crime No.260 of 2009 for the alleged offences under Sections 279, 337, 338 (6 counts) and 304(A) (2 counts) of IPC. The complaint was given by one Ramasamy-Auto driver stating that the lorry bearing registration No.TN 29 H 5089 proceeding from Krishnagiri was loaded with sugarcane. The driver of the said lorry in a rash and negligent manner hit a tamarind tree and lost its control and dashed against Murugan, Rani, Kumaresan, the fruit shop owner Chennappan, Chandran, Ramasamy, who were standing near the bus stand, thereby causing injury to all of them, also ramped into the TVS Excel bearing registration Nos.TN 24 B 6103 and KA 01 ED 9209, the persons who were standing along with their two wheelers, dashed against a lady called Krishnaveni and TATA ACE bearing registration No.TN 24 B 8208 and finally hit the compound wall of one Malammal before it got 2/11 https://www.mhc.tn.gov.in/judis Crl.R.C.No.494 of 2015 capsized. In the said accident Nethigiri and Kantha sustained serious injuries and died, other injured persons including the defacto complainant were taken to the Krishnagiri Government hospital. This information was recorded by the police at the hospital from Ramasamy- the auto driver, who is also an injured person in the said accident. On completion of investigation, a final report was filed against the petitioner, who was secured on 02.01.2010 for his rash and negligent driving causing simple injury for 2 persons, grievous injury for 5 persons and death of 2 persons, charges were framed and tried.
3. The prosecution examined 23 witnesses. Most of them are the victims injured in the accident and rest are the Motor Vehicle Inspector, Doctors and the Investigating Officer. 17 Exhibits were marked, which include the Accident Registers and Postmortem certificates.
4. The trial Court after concluding the trial and on consideration of the materials available on record, found the accused 3/11 https://www.mhc.tn.gov.in/judis Crl.R.C.No.494 of 2015 guilty for the offences under Sections 279, 337 (2 counts), 338 (5 counts) and 304(A) (2 counts), convicted and sentenced vide judgment dated 16.07.2014, made in C.C.No.21 of 2013, as follows:-
Rank of Charges Findings of Punishment
the the trial
accused Court
Sole U/s.279 IPC Found guilty No separate fine amount
accused imposed.
U/s.337 (2 Found guilty To pay a fine of Rs.300/-; in
counts) default to undergo one month
Rigorous Imprisonment.
U/s.338 (5 Found guilty Convicted and sentenced to
counts) undergo one year Rigorous
Imprisonment and to pay a
fine of Rs.500/-; in default to
undergo one month Rigorous
Imprisonment.
U/s.304-A(2 Found guilty Convicted and sentenced to counts) IPC undergo one year Rigorous Imprisonment and to pay a fine of Rs.5,000/-; in default to undergo one month Rigorous Imprisonment.
5. Aggrieved by the judgment of conviction and sentence, the accused preferred an appeal before the Principal District and Sessions Judge, Krishnagiri, however, this appeal was dismissed and confirmed the trial Court judgment and conviction.
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6. This Criminal Revision Case is filed against the concurrent findings on the ground that the Courts below have failed to properly appreciate the evidence particularly, the witnesses have clearly spoken about the curve near the tamarind tree in the scene of occurrence. The petitioner was diligently driving the lorry to avoid a person, who suddenly crossed the road swayed left hit the tamarind tree and hit the passengers standing in the bus stand before the vehicle capsized. In the said accident, unfortunately two persons died, one on the spot and another on the way to the hospital. Five got grievous injuries and two got simple injuries. However most of the injuries were due to the fall of the sugarcane, which was loaded in the lorry. PW.8 admits that the occurrence took place due to sudden crossing of pedestrian. On a cumulative assessment of the sketch, evidence of PW.8 and the facts admitted by the witnesses that either side of the road there were vehicles parked and there was no space sufficient for the petitioner to move on to his left, when he tried to avoid hitting the pedestrian, who crossed the road suddenly.
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7. The learned counsel for the petitioner would submit that the Hon'ble Supreme Court rendered in the case of Mahadeo Hari Lokre Vs. State of Maharashtra [1972 Crl.L.J 49] has acquitted the driver from charge of rash and negligent driving in a case where he was able to prove that the pedestrian suddenly crossed the road without taking note of approaching bus. The driver could not avoid hitting the pedestrian and cannot be construed as rash or negligent driving.
8. The learned Government Advocate (Crl.Side) for the State would submit that the manner in which the accident occurred and the multiple injuries, damaged to autos, 2 two wheelers and a TATA ACE van speaks for itself. He relying upon the evidence of the eye witnesses, who are also the victims of the accident and would submit that the trial Court as well as the appellate Court had imposed very lenient punishment of one year Rigorous Imprisonment for each charge and ordered the sentence to run concurrently.
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9. This Court perused the evidence in the light of the submissions made by the learned counsels. On perusal, the sketch - Ex.P15 clearly shows that after hitting the tamarind tree, the lorry has proceeded for nearly 30 feet before it ramped 4 vehicles and hit 9 persons. Only thereafter it got capsized after hitting the compound wall. Out of 9 injured, 2 died and 5 sustained grievous injury. The wound certificates of the injured marked as Ex.P5 to Ex.P11. The Postmortem of the death persons marked as Ex.P12 and Ex.P13, The final opinion - Ex.P.16 and Ex.P17 speaks about the injuries sustained by the accident victims. No doubt PW.8 had stated that the accident occurred when the driver tried to avoid a pedestrian. This is not corroborated by the other injured victims. Even if it is so, the judgment of Mahadeo Hari Lokre Vs. State of Maharashtra will not apply in the facts of the case. In the said judgment, the bus driver had killed the pedestrian who crossed suddenly. Whereas in this case, it is not the pedestrian, the victim, but 9 persons who were standing in the road margin either waiting for the bus or some other reason and it is to be noted that the accident has taken 7/11 https://www.mhc.tn.gov.in/judis Crl.R.C.No.494 of 2015 place near the bus stop. A diligent driver will take necessary care while negotiating the curve and when there is substantial crowd standing near the bus stop. In this case the absence of due diligence is already proved.
10. The learned counsel for the petitioner point out the fact elucidated during cross examination from the defacto complainant that he signed the complaint only on the next day. This may not be much significance, since the FIR clearly shows that it was registered at 8 O'clock on the date of occurrence and the death persons as well as the injured were admitted in the hospital even before that and the statement of the defacto complainant was recorded in the hospital. The FIR has been reached the Magistrate on the next day i.e., on 02.01.2010.
11. For the said reasons, considering the number of victims injuries in the accident and the fact that unless the driver lack diligence and caution the accident of such magnitude could not have happened, this Court finds no error in the finding of the Courts below. Accordingly, same is confirmed.
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12.The learned counsel for the petitioner prays for some leniency regarding the term of imprisonment and fine amount.
13. Taking note of the fact that the accident ought to have happened due to heavy load of sugarcane, which has hit the tamarind tree and thereby the driver has lost his control over the steering and caused accident. The period of sentence for the offence under Section 338 (5 counts) and 304 A (2 counts) is modified to 9 months of Rigorous Imprisonment. Fine amount and default sentence stands confirmed. The period of sentence shall run concurrently.
14. In the result, this Criminal Revision Case is partly allowed.
11.07.2022 Internet : Yes/No Index: Yes/No rpl 9/11 https://www.mhc.tn.gov.in/judis Crl.R.C.No.494 of 2015 To
1. The Principal District and Sessions Judge, Krishnagiri
2. The Chief Judicial Magistrate, Krishnagiri.
3. The Inspector of Police, Maharaja Kadai Police Station, Krishnagiri District.
4. The Public Prosecutor, High Court, Madras.
10/11 https://www.mhc.tn.gov.in/judis Crl.R.C.No.494 of 2015 Dr.G.JAYACHANDRAN, J.
rpl Crl.R.C.No.494 of 2015 11.07.2022 11/11 https://www.mhc.tn.gov.in/judis