Madras High Court
Thangavel : Revision vs State Rep. By on 2 March, 2018
Author: T.Krishnavalli
Bench: T.Krishnavalli
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation
26.02.2018
Date of Judgment
02.03.2018
DATED: 02.03.2018
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.R.C(MD)No.486 of 2008
Thangavel : Revision
Petitioner/
Appellant/Accused
Vs.
State rep. By
Inspector of Police,
Vadipatti Police Station,
in Crime No.296/98,
Madurai District. : Respondent/Respondent/
Complainant
Prayer: Criminal Revision has been filed under Section 397 r/w 401 of
the Criminal Procedure Code, against the judgment passed in C.A.No.60 of
2007, dated 14.05.2008 on the file of the Additional District Sessions Judge
(Fast Track Court No.1), Madurai, confirming the conviction and sentence
passed by the Judicial Magistrate No.5, Madurai, in S.C.No.123 of 2000, dated
30.03.2007.
!For Revision Petitioner : Mr.Gopala Lakshmana Rajan
Senior counsel
for
Mr.R.Venkateswaran
^For Respondent : Ms.M.Anandha Devi
Government
Advocate (Criminal side)
:JUDGMENT
This Criminal Revision is directed against the judgment passed in C.A.No.60 of 2007, dated 14.05.2008 on the file of the Additional Sessions Judge (Fast Track Court No.1), Madurai, confirming the judgment passed in C.C.No.123 of 2000 by the Judicial Magistrate No.V, Madurai, dated 30.03.2007.
2.The case of the prosecution is that on 05.10.1998 at about 9 am, on Madurai-Dindigul Main Road near Vadipatti Palani Andavar Kovil bus stop, while the VVR bus TN-58-B-2881 proceeding from east to west, the accused drove the bus TN-59-N-0645 in a rash and negligent manner and dashed against VVR bus and as a result of which, four passengers died on the spot and two passengers subsequently died at the Government Rajaji Hospital, Madurai and also caused grievous and simple injuries to the passengers. The Inspector of Police attached to Vadipatti Police Station filed a final report under Sections 279, 337, 338 and 304(A) IPC against the accused examining the witnesses.
3.In the trial court, 8 witnesses were examined and 33 Exhibits were marked. When the accused was questioned about the incriminating circumstances, he denied the same. The trial court convicted the revision petitioner/sole accused and sentenced him to undergo 6 months rigorous imprisonment and to pay a fine of Rs.400/-, in default to undergo one month simple imprisonment for the offence under Section 279 IPC; to suffer two years rigorous imprisonment and Rs.1,000/- as fine for each count, in default to undergo three months simple imprisonment for the offence under Section 304(A) (6 counts) IPC; to undergo 6 months rigorous imprisonment and to pay a fine of Rs.400/-, in default to undergo one month simple imprisonment for the offence under Section 338 IPC and to suffer 4 months rigorous imprisonment and to pay a fine of Rs.200/- for each count for the offence under Section 337 IPC (16 counts), in default to undergo one month of simple imprisonment. Aggrieved by the conviction and sentence passed by the trial court, the revision petitioner/sole accused filed an appeal in C.A.No.60 of 2007, which was heard by the Additional Sessions Judge (Fast Track Court No.1), Madurai. The first appellate Court confirmed the judgment of conviction and sentence passed by the trial court. Hence, this criminal revision.
4.The learned counsel for the revision petitioner/accused submitted that the prosecution has failed to establish the ingredients required for all the offences with which he stood charged and convicted him for the said offences and none of the witnesses have spoken that the accused had driven the vehicle either rashly or negligently and there is no specific allegation of negligence as against the accused in driving the offending vehicle and the eye witnesses are interested witnesses and in this case, the total exoneration of the private bus VVR from the case and non-examination of its driver, conductor and passengers in the case of head on collision is fatal to the prosecution and the non examination of witnesses speaking of observation mahazar is fatal to the prosecution and non-production of photographs taken showing at the place of occurrence by the prosecution is also fatal to the prosecution and doubting the version of the prosecution and the prosecution has failed to prove the case beyond reasonable doubt and the accused is entitled to acquittal and prays that the criminal revision may be allowed. In support of his contention, the learned Senior counsel relied upon the following judgments:-
1.1998 SCC (Cri.) 1508 (State of Karnataka vs. Satish); 2.2000 CRI.L.J.4362 (Ajaib Singh vs. Stateof Punjab);
3.(2001)MLJ (Crl)852 (Sekar vs. State);
4.2001CRI.L.J3656 (Jerald vs. State by Inspector of Police, Kancheepuram;
5.2008 CRI.L.J.3861 (State of Rajasthan vs. Nathu Lal);
6.(2011)2 MLJ (Crl)24 (Nachimuthu vs. State by the Inspector of Police, Velagoundampatti Police Station, Namakkal District);
7.[2011(2)T.N.L.R.97(Mad)] (Rajendran vs. Inspector of Police);
8.(2011)4 MLJ (Crl) 50 (Magesh vs. State by Inspector of Police, Gudivatham Taluk Police Station, Vellore District);
9.2014(1) MWN (Cr.) 156(DB) (R.Nandakumar vs. State, rep. By Inspector of Police, Pollachi West Police Station);
10.(2014)1 MLJ (Crl)301 (Vetrivelan vs. State by Inspector of Police, J3, Traffic Investigation Station, Guindy, Chenai-32);
11.(2016)4 MLJ (Crl)308 (Manjunatha Reddy vs. State, represented by the Inspector of Police, Hudco Police Station, Krishnagiri District); and 12.2017 CRI.L.J.2614 (Mottammal Shaji alias Kakka Shaji Kunhikannan & others vs. State of Kerala.
5.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that both 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 offences, convicted the revision petitioner for rash and negligent driving of the vehicle 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 has to be dismissed.
6.Heard both sides and perused the materials available on record.
7.In this case, PW1 is the complainant and he gave Ex.P1 complaint. PW1 in his complaint stated that on 05.10.98 at about 9.00 am, near Vadipatty Palani Andavar Kovil, Vadipatty to Dindigul Main Road, the Transport Corporation Bus TN-59-N-0645 was proceeding from west to east towards Vadipatti and the Private bus VVR TN-58-B-2881 was proceeding from east to west towards Dindigul. When the driver of the Transport Corporation bus attempted to over take an auto-rickshaw, he served the bus to the right side extreme of the road, as a result of which, there was a head on collision between the two buses, in which 6 passengers died travelled in the private bus and 16 passengers got injured travelled in both buses.
8.PW1 in his evidence stated that prior to four years at 9.00 a.m, he was travelling in a Government bus and when the bus reached near Palani Andavar Kovil, an auto proceeded in front of the bus and when the driver of the offending vehicle attempted to overtake the above auto, the driver of the offending vehicle dashed against a private bus, which was coming in the opposite direction and some persons sustained injuries and two persons died on the spot.
9.The learned Senior counsel for the revision petitioner/sole accused submitted that in this case, none of the witnesses stated that the accident occurred due to the rash and negligent driving of the accused and hence, the accused is entitled to acquittal. For that, the learned Senior counsel for the revision petitioner placed reliance upon the decisions as stated above.
10.PW1 categorically stated that the driver of the offending vehicle drove it in a rash and negligent manner. In this regard, it is necessary to refer the cross examination of PW1. PW1 stated in his cross examination that:-
?ehd; ghh;j;J bfhz;oUf;Fk;nghJ lkhh; vd;W rj;jk; nfl;lJ. rk;gtj;jpd; nghJ ngUe;jpd; lah; btoj;J rk;gtk; Vw;gl;lJ vd;why; rhpay;y. Ml;nlhtpd; kPJ ngUe;J nkhjtpy;iy vd;why; rhpjhd;. Ml;nlhit flf;f Kaw;rpf;Fk;nghnj vjphpapd; ngUe;J nkhjptpl;lJ. vjph;g[wk; ngUe;Jk; Ml;nlht[k; beUq;fp te;jdth vd;why; rpwpJ beUq;fp te;jJ. vq;fs; ngUe;Jf;F Kd;ghf Ml;nlh nghFk; nghJ jhd; rk;gtk; ele;jJ. vjph;g[wk; te;j tptpMh; ngUe;J tUtJ bjhpe;nj vjphp Ml;nlhit Ke;j ntz;Lbkd;W tyJg[wk; Kd; Vwp ntfkhf nkhjptpl;lhh;.
?ngUe;J ntfkhf jhd; te;jJ Vbddpy;> ghz;oauhrg[uk;> Fuq;F njhg;g[ rhzhk;gl;o ve;j g]; epWj;jq;fspYk; g]; epw;fhky; buhk;g ntfkhf te;jJ.?
11.It is pertinent to note that due to the accident the head of one person was amputated. Hence, it is held that only due to the rash and negligent driving of the Government bus driver, the accident took place.
12.PW2 is one of the passengers, who was travelling in the offending vehicle. He deposed that the driver of the offending vehicle drove his vehicle in a high speed and in order to overtake the auto, he dashed against the private bus.
13.PW3 is the Conductor of the offending vehicle. PW3 deposed that the driver of the offending vehicle attempted to overtake an auto, at that time, a private bus came in the opposite direction in a high speed and the private bus dashed against the Government Bus. From the evidence of PW3, it reveals that the driver of the offending vehicle attempted to overtake the auto. PW3 is the conductor of the Government Bus and in order to help the accused, he did not support the case of the prosecution.
14.PW4 and PW5 are the eye witnesses. They have deposed that the driver of the offending vehicle drove his vehicle in a high speed and attempted to over take an auto and at that time, the Government Bus dashed against the private bus. Hence, it shows the negligence on the part of the accused.
15.In this case, PW1 has categorically stated that the driver of the offending vehicle drove the vehicle in a rash and negligent manner. Usually before attempting to overtake a vehicle, the driver has to follow the traffic rules carefully. In this case, if at all, the accused followed the traffic rules carefully, the accident would not happen. The evidence of PW1 is the solitary witness and it is only enough. Hence, it is held that due to the rash and negligent driving of the accused, the accident took place and some persons died and some persons sustained injuries.
16.The learned counsel for the revision petitioner/accused has mainly argued that in this case, the Doctor, who gave treatment to the injured, Motor Vehicle Inspector and the photographer, who took the photographs were not examined and they are the material witnesses and the non-examination of material witnesses is fatal to the prosecution.
17.In this case, the Motor Vehicle Inspector report, postmortem report of the deceased and Accident Register copies of the injuries were marked through the Investigation Officer, but at the time of marking the documents, the learned counsel for the accused has not raised any objection. Further, on perusal of the Motor Vehicle Inspection report, it is seen that the accident was not happened due to mechanical defects. Further, the photographs were taken only after the occurrence. Hence, the non-examination of the Doctors, who gave treatment to the injured, Motor Vehicle Inspector and the photographer will not affect the case.
18.In this case, PW1 to PW5 have categorically stated that due to the accident only, some persons died and some persons sustained injuries. The alleged accident is not denied on the side of the accused. PW1 categorically stated that the accident took place due to the rash and negligent driving of the offending vehicle. Further, it is not denied on the side of the accused that the accused is not the driver of the offending vehicle at the time of the occurrence. Hence, it is held that the minor contradictions in this case will not affect the case of the prosecution.
19.On careful perusal of the evidence and documents available on record, this court is of the considered opinion that the accident occurred only due to the rash and negligent driving of the accused.
20.The trial court, on appreciation of evidence and the first appellate court on re-appreciation of evidence, rendered a concurrent finding assigning reasons in support of the conclusion arrived at by the said Courts that all the offences with which the revision petitioner stood charged were proved beyond reasonable doubt.
21.This court, after going through the records, is of the considered view that the Courts below have not committed any mistake or error in rendering a finding hold the revision petitioner/accused guilty of all the offences with which he stood charged. However, considering the fact that the revision petitioner/accused is a poor-man and he is the breadwinner of the family, this court finds that the conviction and sentence imposed on the revision petitioner/accused require modification.
22.In the result, this criminal revision is partly allowed. The conviction and sentence imposed on the revision petitioner is modified and he is directed to pay a fine of Rs.400/-, in default to undergo one month of simple imprisonment for the offence under Section 279 IPC; to pay a fine of Rs.200/- each, in default to undergo one month of simple imprisonment (each count) under Section 337 IPC (16 counts); to pay a fine of Rs.400/-, in default to undergo one month of simple imprisonment for the offence under Section 338 IPC. The conviction and sentenced imposed on the revision petitioner under Section 304(A) IPC is also modified and he is directed to suffer 6 months RI (for each count) for the offence under Section 304(A) IPC (6 counts) and the fine imposed by the trial court under Section 304(A) IPC (6 counts) is confirmed. The sentences are directed to run concurrently. The period of sentence already undergone by the revision petitioner/accused shall be set off under Section 428 Cr.P.C. The revision petitioner/accused, after adjusting the period of imprisonment already undergone shall undergo imprisonment for the remaining period.
To,
1.The Judicial Magistrate No.III, Thanjavur.
2.The Additional Sessions Judge/ Fast Track Court No.I, Thanjavur.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.