Madras High Court
R.Rajendran vs State Rep. By on 7 July, 2022
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
Crl.A.No.631 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.07.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.A.No.631 of 2019
R.Rajendran,
S/o.Ramasamy ... Appellant
Versus
State Rep. by,
The Assistant Commissioner of Police,
Traffic Investigation Wing,
Ashok Nagar, Chennai – 600 083. ... Respondent
Prayer : Criminal Appeal filed u/s.374(2) of the Code of Criminal Procedure,
praying to allow the appeal and set aside the judgment on the file of the Mahila
Court/Special Court for cases under POSCO Act/Children's Court, Chennai –
600 104 in S.C.No.156 of 2017 dated 05.09.2019.
For Appellant : M/s.Ravichandran Sundaresan
For Respondent : Mr.S.Vinoth Kumar,
Government Advocate (Crl.Side)
JUDGMENT
This Appeal has been filed to set aside the judgment passed by the Mahila Court/Special Court for cases under POSCO Act/Children's Court, Chennai – 600 104 in S.C.No.156 of 2017, dated 05.09.2019. https://www.mhc.tn.gov.in/judis 1/15 Crl.A.No.631 of 2019
2.On 13.10.2016, when P.W.16 was on duty at TIW, Guindy, P.W.4, namely Meena appeared before the police station and lodged a complaint to the effect that, she along with her friends, who are the students of Chellammal College, were walking along Anna Salai in the left hand side edge of the road. While so, the water tanker lorry bearing Registration No.TN-20-BT-8622, which was driven from the side of Guindy from South to North came in a high speed and went out of control and hit against them, a motorcycle, a scooter and an auto, in which, three of her friends, namely Chitra, Asha Sruthi and Gayatri were ran over and died on the spot and one Jayashree got grievous injury on her stomach and the rider of the Honda Activa scooter and the driver of the auto, were all injured. On the strength of the said complaint, a case in Crime No.763 of 2016 was registered under Sections 279, 304 Part II (3 counts), 308, 338, 337 of IPC r/w Section 134 of Motor Vehicles Act. The same was taken up for investigation by P.W.17, who after completing the investigation laid the final report proposing the appellant, who is the driver of the tanker lorry and one Mayakannan, the cleaner of the lorry as accused having committed the offences as aforesaid.
3.The said final report was taken on file by the learned XVIII Metropolitan Magistrate, Saidapet, Chennai as P.R.C.No.7 of 2017 and upon https://www.mhc.tn.gov.in/judis 2/15 Crl.A.No.631 of 2019 the appearance of the accused and furnishing of copies under Section 207 of Cr.P.C., the case was committed to the Principal Sessions Judge, Chennai. Thereafter, the case was committed to the Mahila Court/ Special Court for cases under POCSO Act/Children's Court, Chennai and was taken on file as S.C.No.156 of 2017. Upon considering the materials on record, the Trial Court framed the charges against the accused for the offenses under Section 279, 304 Part II (3 counts), 338 (2 counts), 337 (3 counts) of IPC and Section 187 r/w 134(a) and (b) of Motor Vehicles Act (2 counts) against the first accused and under section 279 r/w 109 and against the second accused for the above offences r/w 109 of IPC.
4.Upon being questioned about the charges, the accused denied the same stood trial. In order to bring home the charges, the prosecution examined one Jayashree, who was the injured eye witness as P.W.1, one Omanakuttan, who was again the injured eye witness as P.W.2, one Savaraj, who was the injured eye witness as P.W.3, one Meena, the injured eye witness, as well as the de- facto complainant, as P.W.4, one Subramanian, again the injured eye witness as P.W.5. The mahazar witnesses, namely Yuvaraj and Ashok Kumar were examined P.W.6 and P.W.7. One, Iyyappan, who was the witness to the confession statement examined as P.W.8. One doctor Induja, who gave https://www.mhc.tn.gov.in/judis 3/15 Crl.A.No.631 of 2019 treatment to P.W.5 was examined as PW9. Doctor Sureshkumar, who gave treatment to P.W.1 to P.W.4 and issued copies of Accident Register, was examined as P.W.10. One Manjula, Assistant Director of Forensic Science Department was examined as P.W.11. One Sridharan, Motor Vehicle Inspector, was examined as P.W.12. One doctor, namely Anand, who gave treatment to P.W.1 and issued wound certificate was examined as P.W.13. Doctor Baskaran, who conducted the postmortem and gave final opinion, was examined as P.W.14. One doctor Sasikumar, who gave treatment to P.W.3, was examined as P.W.15. The Inspector of Police, who registered the FIR was examined as P.W.16 and the Investigating Officer was examined as P.W.17.
5.On behalf of the prosecution, Ex.P-1 to Ex.P-33, were marked and the photograph of the water tanker lorry was marked as M.O.1. Upon being questioned about the material evidence on record and the incriminating circumstances under Section 313 of Cr.P.C, the accused denied the same as false. Thereafter, no evidence was let in on behalf of the defence. The Trial Court therefore, proceeded to hear the learned Special Public Prosecutor on behalf of the prosecution and the learned Counsel for the accused and by a judgment dated 05.09.2019, the second accused was acquitted of all the charges and the first accused was found guilty for the offences under sections 279 IPC, https://www.mhc.tn.gov.in/judis 4/15 Crl.A.No.631 of 2019 304 Part II IPC (3 counts), 338 IPC (2 counts), 337 IPC (3 counts) and Section 187 (2 counts) r/w 134 (a) and (b) of Motor Vehicles Act and was sentenced as follows :-
“is sentenced to under 6 months S.I. and to pay a fine of Rs.1,000/- in default to undergo further period of one month S.I. for the offence u/s. 279 IPC;
is sentenced to under 5 years S.I. for each count and to pay a fine of Rs.5,000/- for each count in default to undergo further period of 6 months S.I. for each count for the offence u/s. 304 Part II IPC (3 counts);
is sentenced to under 1 year S.I. for each count and to pay a fine of Rs.1,000/- for each count in default to undergo further period of 2 months S.I. for each count for the offence u/s. 338 IPC (2 counts);
is sentenced to under 3 months S.I. for each count and to pay a fine of Rs.500/- for each count in default to undergo further period of 2 months S.I. for each count for the offence u/s. 337 IPC (3 counts);
is sentenced to undergo one month S.I. and to pay a fine of Rs.500/- in default to undergo further period of 1 week S.I. for the offence u/s 187 r/w 134(a) M.V. Act;
is sentenced to under one month S.I. and to pay a fine of Rs.500/- in default to undergo further period of 1 week S.I. for the offence u/s. 187 r/w 134(b) M.V.Act.” Aggrieved by the same, the present appeal is laid before this Court. https://www.mhc.tn.gov.in/judis 5/15 Crl.A.No.631 of 2019
6.Heard Mr.Ravichandran Sundaresan, learned Counsel appearing on behalf of the appellant and Mr.S.Vinoth Kumar, Government Advocate (Crl.Side) appearing on behalf of the prosecution.
7.The learned Counsel appearing on behalf of the appellant would submit that, in this case, a topo plan of the scene of occurrence is near the petrol bunk, just before the gate of Chellammal College on Anna Salai. It is preceded by the over bridge at Guindy. In this case, when the accused was driving the tanker lorry, at the bridge, there was a mechanical fault in the sense that the brake tube got burst and therefore, the accused was unable to stop the lorry, which resulted in the unfortunate accident and as such, the same was in no way by the rash and negligent driving of the accused. In this regard, the learned Counsel for the appellant taking this Court, through the evidence of the Motor Vehicle Inspector would submit that when the Motor Vehicle Inspector was examined at the earliest stage on 27.02.2018, before the Trial Court, he had categorically stated that the brake tube was tampered. On cross examination, he admitted that he is not in a position to say at what point of time and by whom and by in what manner the brake tube would have been tampered. This apart, he had also answered that from the opinion of the Tata Motors, if the brake tube is tampered then, the vehicle will not stop. Therefore, he would submit that the https://www.mhc.tn.gov.in/judis 6/15 Crl.A.No.631 of 2019 defence has raised a probable doubt in the case of the prosecution that the accident could have happened on account of the break tube bursting also. In which case, the accused cannot be punished. Further, the learned Counsel taking this Court, through the re-examination of the Motor Vehicle Inspector suo-motu by the Court would point out his specific answer that he is not aware of any report of the Tata Motors and he has not seen such report. Therefore, the prosecution did not examine any technical person from Tata Motors, neither brought any document on record to show that the Tata Motor Vehicle produced after the year 2004 will not run further in the event of a break failure. This is the case of the prosecution in reply to the defence of the accused and absolutely there is no material in proof of the same.
8.The learned Counsel would also further submit that in this case, the accident happened on Anna Salai and it may be seen that the said road is very wide road with a wide platform, especially at the scene of occurrence and the three college students, who died in the accident were on the road and were not on the platform. This also raises a shadow of doubt as to whether they were negligent in this case. Therefore, the learned Counsel would submit that this is a fit case, where this Court should interfere in the findings and conclusions reached by the trial court and acquit the accused by giving the benefit of doubt.
https://www.mhc.tn.gov.in/judis 7/15 Crl.A.No.631 of 2019
9.Per Contra, the learned Government Advocate (Crl.Side) would submit that, in this case P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5 are all the injured witnesses, who had witnessed the Vehicle running amok, whereby, hit against the pedestrians, driver of the two wheeler, driver of the three wheeler, viz., Auto and created a major accident. The extreme high speed in which the vehicle would have been driven can be presumed res ipsa loquitur by the manner of the accident itself. This apart, the only defence of the appellant/accused in this case is that of mechanical defence. It is not his case that he was driving the vehicle properly. Therefore, the vehicle ran out of control is admitted even by the defence. It is for the defence to prove that the vehicle got out of control only on account of mechanical fault.
10.On the other hand, the prosecution has discharged its onus by examining the Motor Vehicle Inspector and his report is marked as Ex.P-15, in which, the Motor Vehicle Inspector has held that the accident had not happened due to any mechanical fault of the vehicle. In that view of the matter, the defence is unsustainable. Even, with regard to the one sentence, which was spoken by P.W.12, on a reading of the evidence given by P.W.12 at the earliest instant in the year 2018 is ambiguous and therefore the Court suo-motu recalled P.W.12 and clarified the ambiguous statements which were totally against the https://www.mhc.tn.gov.in/judis 8/15 Crl.A.No.631 of 2019 accused. Therefore, in this case, the prosecution has proved the charges to the hilt and therefore, the Trial Court has rightly convicted the petitioner. In respect of the injuries, the concern doctors have been examined and the wound certificate has been marked.
11.I have considered the rival submissions made on either side and perused the material records of the case.
12.In this case, the point for consideration for this court is that, whether the accident happened on account of any mechanical fault and if so, whether the prosecution has discharged his initial onus to prove that the accident had not occurred due to mechanical fault and if they have discharged their onus, whether the defence thereafter raised a probable defence doubt that it is only because of the mechanical fault.
13.The entire case hinges on the evidence of the expert, namely P.W.12, as the manner of accident and the vehicle ran amok are all admitted by either side and has been otherwise very well proved by the evidence of P.W.1 to P.W.5.
https://www.mhc.tn.gov.in/judis 9/15 Crl.A.No.631 of 2019
14.In this case, in the chief examination, P.W.12 has stated as follows :-
“thfdj;jpd; Kd; ,lJ gf;fk; kpft[k;
nrjkile;J ,Ue;jJ/ thfdj;jpy; Kd; tyJ gf;f Kfg;g[ tpsf;F ,d;onfl;lh; nrjkile;jpUe;jJ/ thfdj;jpd; tyJ gf;f ghofhl; nrjkile;jpUe;jJ/ thfdj;jpd; fhy;eil jpwid Xl;o ghh;j;J nrhjid bra;a ,aytpy;iy fhuzk; thfdj;jpDila gpnuf;
oa{g; nrjk; bra;ag;gl;Ls;sJ/ nkYk; ,e;j tpgj;J thfdj;jpd; ve;jtpj ,ae;jpu nfhshuhYk; Vw;gltpy;iy vd;W rhd;W tH';fpndd;/ ehd; tH';fpa tpgj;jha;t[ mwpf;if m/j/r/M/15/”
15.In his cross examination, the relevant answers relied upon by the defence are as follows :-
“nghyP!; fput[z;oy; jhd; tz;oia ghh;j;J Ma;t[ bra;njd;/ ehd; ghh;j;j nghJ me;j tz;oapy;
gpnuf; xah; nrjg;gLj;jg;gl;oUe;jJ/ mJ ahh;
nrjg;gLj;jpdhh;fs; vd;gJ gw;wp ehd; fUj;J TwKoahJ/ gpnuf; xaiu vLj;J jlatpay;
ghpnrhjidf;F cl;gLj;jpdhh;fsh vd;W vdf;F bjhpahJ/ gpnuf; xaiu jdpahf vLj;J ghpnrhjidf;F cl;gLj;Jtjw;F vdf;F mjpfhuk; ,y;iy/ gpnuf; xah; nlk;ghp';f; bra;ag;gl;lJ vd;W ehd; bfhLj;j fUj;J nghyPrhUf;F rhjfkhf ntz;Lbkd;nw bfhLf;fg;gl;lJ vd;W brhd;dhy; rhpay;y/ lhlh nkhl;lhh;!; gpnuf; xah; nlk;gh; Mdjhy; jhd; gpnuf; gpof;ftpy;iy mjdhy;
jhd; tpgj;J Vw;gl;oUf;fpwJ vd;W
brhy;ypapUf;fpwhh;fsh vd;why; Mk;
brhy;ypapUf;fpwhh;fs;/ ahh; nlk;gh; gz;zpapUf;fpwhh;fs; vd;W vdf;F bjhpahJ/ gpnuf; xaiu ehd; nlk;gh;
bra;atpy;iy/ gpnuf; xah; nlk;gh; Mdjhy; jhd;
tz;oapd; gpnuf; gpof;fhky; nghapUf;fpwJ/” https://www.mhc.tn.gov.in/judis 10/15 Crl.A.No.631 of 2019
16.From this, it can be seen that the evidence of P.W.12 was unclear as he has given a report in Ex.P-15 that the vehicle did not have any mechanical fault. At the same time, he had admitted that the break tube was tampered and that he did not know whether the tamper was before or after. He had made a statement that if the brake wire is tampered, then the break system will not work and the vehicle will not stop. Since these statements were ambiguous, again, the Trial Court recalled him and his answer is as follows:-
“nfs;tp ? lhlh nkhl;lhh;!; bfhLj;jjhf brhy;Yk; mwpf;ifia eP';fs; ghh;j;jPh;fsh ?
gjpy;/ ehd; ghh;f;ftpy;iy/ 2004Mk; tUlj;jpw;F gpwF jahhpf;fg;gl;l thfdj;jpw;F gpnuf; oa{g; mWe;J mjdhy; thfdk; ghjpf;fg;gl;oUe;jhy; me;j thfdj;ij efh;j;jnt KoahJ/ fail safe system vd;w rp!;lk;
,a';Ftjhy; tz;o efu tplhky; mg;gona
fhg;ghw;wg;gLk;/”
17.It is this very answer, both sides learned Counsel are relying upon. According to the learned Counsel for the appellant that once the expert had stated that he had not read the Tata Motors report and the prosecution has not examined any person from Tata Motors, they had failed to discharge the onus that the vehicle did not have any mechanical fault. I am afraid that I am able to accept the said submission. It is the onus of the prosecution to prove that the accident happened on account of the fault of the appellant and there was no any https://www.mhc.tn.gov.in/judis 11/15 Crl.A.No.631 of 2019 mechanical fault in the vehicle. To that extent, already the certificate granted by the P.W.12 in Ex.P-15 is on record. It is to counter the further defence of the accused that all the vehicles of Tata motor make from the year 2004 will not run further if there is a tampering in the system or bursting of brake tube is made on behalf of the prosecution. Therefore, when even while denying the knowledge of reading the Tata Motors report, P.W.12, who is an expert has positively stated that the vehicle will not even move because of the 'fail safe system' is there and when such an answer is given by the P.W.12, there was no cross examination by the appellant/accused in this regard and therefore, I am not in a position to accept the plea of the learned Counsel for the appellant.
18.A Motor Vehicle Inspector is obviously is an expert in the field, day in and day out giving registration certificates and fitness certificates to the vehicles and his personal knowledge about the 'fail safe system' is reliable by the Court, even in the absence of any documentary evidence or oral evidence from the Tata Motors Company.
19.Therefore, I am of the view that even though the defence had attempted to raise a defence of mechanical fault, they were unsuccessful before the Trial Court and therefore, I reject the defence and the pleadings of the https://www.mhc.tn.gov.in/judis 12/15 Crl.A.No.631 of 2019 appellant and I am unable to therefore, up turn the finding of guilt into one as acquittal. Therefore, the conclusion reached by the Trial Court of finding the appellant guilty for the offences under Section 279 IPC, 304 IPC (3 counts), 338 IPC (2 counts), 337 IPC (3 counts) and Section 187 (2 counts) r/w 134 (a) and (b) of the Motor Vehicle Act is upheld.
20.Now, coming to the sentence, considering the age of the accused, who was 42 years at the time of accident and now 47 years, who is the sole breadwinner of the family and considering the nature of the vehicle i.e., the water tanker lorry and the pressure on the drivers to take those urgent trips and considering the judgment of the Hon'ble Supreme Court of India in Alister Anthony Pareira Vs. State of Maharashtra [Crl.A.No.1318 to 1320 of 2007], dated 12.01.2012, where in the similar circumstances, when seven persons died in the accident, after considering the offence under Section 304 Part II, the Hon'ble Supreme Court imposed a punishment of three years, I am inclined to reduce the sentence imposed by the Trial Court from five years simple imprisonment for each count to three year simple imprisonment for each count. In other respects, the sentence imposed by the Trial Court are confirmed. The sentence shall run concurrently and the accused is entitled to set off for the period already undergone by him.
https://www.mhc.tn.gov.in/judis 13/15 Crl.A.No.631 of 2019
21.With the above terms, this Criminal Appeal is partly allowed.
07.07.2022 Index : yes/no Speaking order/Non-speaking order sp To
1.The Mahila Court/Special Court for cases under POSCO Act/Children's Court, Chennai – 600 104.
2.The The Assistant Commissioner of Police, Traffic Investigation Wing, Ashok Nagar, Chennai – 600 083.
3.The Public Prosecutor, Madras High Court.
https://www.mhc.tn.gov.in/judis 14/15 Crl.A.No.631 of 2019 D.BHARATHA CHAKRAVARTHY, J., sp Crl.A.No.631 of 2019 07.07.2022 https://www.mhc.tn.gov.in/judis 15/15