Madras High Court
Kumar vs State Rep By on 4 July, 2022
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
Crl.R.C.No.756 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.07.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C.No.756 of 2019
Kumar ... Petitioner
Versus
State Rep by
Inspector of Police,
Sathyamangalam Police Station,
Erode District,
Crime No.641 of 2007 ... Respondent
Prayer: Criminal Revision Case filed under Section 397 Cr.P.C, to set
aside the sentence and conviction imposed by the learned III Additional
District and Sessions Judge, Gobichettipalayam in Crl.App.No.344/2018
dated 19.07.2019 confirming the order passed by the learned Judicial
Magistrate, Sathyamangalam, in C.C.No.24/2008 dated 24.08.2018.
For Petitioner : Mr.S.Parthasarathy
For Respondent : Mr.S.Vinoth Kumar,
Government Advocate (Crl.Side)
ORDER
This criminal revision is filed to set aside the sentence and conviction imposed by the learned III Additional District and Sessions https://www.mhc.tn.gov.in/judis 1/12 Crl.R.C.No.756 of 2019 Judge, Gobichettipalayam, in Crl.App.No.344/2018, dated 19.07.2019, confirming the order passed by the learned Judicial Magistrate, Sathyamangalam, in C.C.No.24/2008, dated 24.08.2018.
2.PW16 one Palaniappan, Head Constable attached to Sathyamangalam Police Station went to the Government Hospital, Sathyamangalam and recorded the statement of PW1 Nagaraj, which reads as follows:
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jw;nghJ jkpH;ehL muR nghf;Ftuj;J fHfj;jy;
Xl;Leuhf gzpg[hpe;J tUfpnwd; vd;Wk;. fle;j
29/10/2007 md;W fhiy 6/50 kzpf;F
gz;zhhpapypUe;J rj;jp nghtjw;fhf TN 33 N 0972 vd;w ngUe;ij vLj;Jf;bfhz;L mjpy elj;Jduhf j';fuh$; vd;gtUld; nkw;fpypUe;J fpHf;F nehf;fp gz;zhhpapypUe;J 100 kP;
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tyJ gf;fkhf Vwp te;J jd; tz;oapd; tyJ
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https://www.mhc.tn.gov.in/judis
2/12
Crl.R.C.No.756 of 2019
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3.PW1 was driving the Government Transport Corporation Bus from Bannari to Sathyamangalam West to East at about 6.50 a.m. The accused Kumar drove the Eicher Van from the opposite direction in a rash and negligent manner coming in extremely right side hitting against the bus, in which, he sufferred grievous injuries, fracture in his limbs and other injuries on his body. There was also injuries to other passengers, in which, https://www.mhc.tn.gov.in/judis 3/12 Crl.R.C.No.756 of 2019 one child died. He was admitted to the hospital and gave the statement. On the strength of his statement, FIR in Crime No.641 of 2007 under Sections 279, 337, 338 and 304 A IPC was registered. PW18 took up the case for investigation and laid a final report, which was taken on file as C.C.No.24 of 2008. Upon summons to the accused and upon questioning the accused after furnishing of copies, the accused denied the charges and stood trial.
4.To prove the charges on behalf of the prosecution, totally 18 witnesses P.Ws 1 to 18 were examined and Exs.P1 to P20 were marked. Upon questioning the accused of the material evidence on record and the incriminating circumstances, the accused denied the same. Thereafter, there was no evidence let in on behalf of the defence. The trial Court proceeded to hear the learned Additional Public Prosecutor for the prosecution and the learned counsel for the accused and by a judgment dated 24.08.2018 found the accused guilty for the offences under Section 279 IPC and sentenced to undergo six months rigorous imprisonment, found the accused guilty for the offence under Section 337 (10 counts) IPC and sentenced to undergo six months rigorous imprisonment for each count and fine of Rs.500/- for each count and in default to pay the fine, to https://www.mhc.tn.gov.in/judis 4/12 Crl.R.C.No.756 of 2019 undergo one week simple imprisonment; found guilty for the offence under Section 338 (3 counts) IPC and sentenced to undergo rigorous imprisonment for a period of one year for each count and fine of Rs.1,000/- and in default to pay the fine, to undergo one week simple imprisonment; found the accused guilty for the offence under Section 304(A) IPC and sentenced to undergo two year rigorous imprisonment and to pay a fine of Rs.10,000/- and in default to pay the fine, to undergo two months simple imprisonment.
5.Aggrieved by the said judgment, the petitioner/accused filed Crl.A.No.344 of 2018, before the Additional District and Sessions Judge, Gobichettipalayam. The learned Additional District and Sessions Judge, by judgment dated 19.07.2019, confirmed the conviction and modified the sentence while maintaining the quantum of sentence, held that all the sentences to run concurrently. Aggrieved by the same, the present revision is laid before this Court.
6.Heard Mr.Parthasarathy learned counsel for the petitioner and Mr.S.Vinoth Kumar Government Advocate (Crl.Side) for the respondent. https://www.mhc.tn.gov.in/judis 5/12 Crl.R.C.No.756 of 2019
7.The learned counsel for the petitioner would submit that in this case, the very final report is erroneously filed, while the accused is alleged to have caused the accident by driving a vehicle from opposite direction, a perusal of the final report, it is mentioned that he was also driving the vehicle from West to East and therefore, the accused was not put to proper notice about the charge he was facing and therefore, straightaway this Court should acquit the accused. Secondly, the learned counsel would submit that on cross examining PW2, he has candidly admitted that PW1 was unconsious and he was the one who gave the complaint. The said fact is also admitted by PW18 Investigation Officer and further, the FIR in this case reached the Court very belatedly after a period of seven days. Therefore, this would clearly demostrate that the original complaint was something else and the same is burked before the Court and therefore, the petitioner accused should be given the benefit of doubt. The FIR which is marked as Ex.P18 should not be given any evidentiary value as it is not based on the earliest complaint. Therefore that leaves us with the only evidence of PW1-driver. Except PW1, everybody including the conductor and other injured witnesses have all accepted in the cross examination that they did not actually witness the accident and they only came to know after the noise and after the injuries to them. Therefore, the prosecution case https://www.mhc.tn.gov.in/judis 6/12 Crl.R.C.No.756 of 2019 stands only on the evidence of PW1. PW1, in this case, is an interested witness as the case of the defence is that he was at fault. Therefore, the conviction of the petitioner cannot be based on the sole evidence of PW1.
8.He would further submit that even from the observation Mahazar, it could be seen that the width of the road is 25 feet, of which, on either side there was a mud road. Even as per the evidence of PW1, even though he saw a van coming in a rash and negligent manner from the opposite direction of about 100 meters, he admits that he allowed the bus to go further right and the tires did not get into the mud portion of the road. This would show the rash and negligent driving on the part of PW1 also. He would further submit that both the Trial Court as well as the First Appellate Court had come down heavily on the Investigation officer in even mentioning the direction of the vehicle wrongly and also in burking PW2's complaint while admitting in the cross examination. When the Courts below have found fault in this connection on the material aspect, they should have given the benefit of doubt to the petitioner. Therefore, the conviction and sentence by the Trial Court and First Appellate Court are perverse and to be interfered by this Court under its revisional jurisdiction.
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9.Per contra, the learned Government Advocate would submit that in this case, PW1 has categorically deposed before the Court that the accused drove the vehicle from the opposite direction in a rash and negligent manner. The report of the Motor Vehicle Inspector clearly showing the dent and damage in both vehicles, clearly point out and probabilise the version of PW1 as correct. He would submit that the major damage was shown to the bus and apart from the driver, ten passengers were injured and of which, three of them suffered grievous injury and one child died. The persons who were sitting upto the third and fourth row behind the driver got injured. This shows the extreme rashness and high speed, in which, the accused was driving the vehicle when the road width was only 25 feet and taking into account, the manner of collision, the rashness on the part of the appellant/accused is apparent on the face of it. Therefore, the trial Court has righly convicted the appellant.
10.I have considered the rival submissions made on behalf of either side and perused the material records in this case.
11.As rightly submitted by the learned counsel for the petitioner in this case, the Court has to ignore Ex.P18 FIR, as admittedly, by the https://www.mhc.tn.gov.in/judis 8/12 Crl.R.C.No.756 of 2019 evidence of PW2 as well as the PW18 Investigation Officer there seems to be an earlier complaint. Be that as it may, merely because the FIR loses its evidentiary value, the same will not automatically entitle an order of acquittal to the petitioner/ accused in this case. Even though the defence cross examined PW1, they could not elicit any favourable answer. This apart, the evidence of PW1 as corroborated by the observation mahazar and the Motor Vehicle Inspector's report, his evidence and the manner of dent etc., corroborates the evidence of PW1. As rightly contended by the learned Government Advocate, admittedly it is a 25 feet road. While one can see that PW1 also did not swerve the bus to the right to avoid the accident, but, at the same time, the speedy manner in which the petitioner/accused drove the vehicle is evident from the facts and circumstances of this case. Though the speed by itself will not prove the negligence, but in a 25 feet width road, the same would amount to culpable rashness. Therefore, to that extent, the prosecution has proved the case to the hilt and accordingly, I confirm the conviction of the petitioner for the offences under Sections 337, 338 and 304A IPC.
12.But, however, at the same time, the following mitigating factors have also to be seen while considering the question of sentence. This is a https://www.mhc.tn.gov.in/judis 9/12 Crl.R.C.No.756 of 2019 head-on-collision. Even according to PW1, it happened in the middle of the road. PW1 also did not swerve the bus to further left. It is seen that both the drivers have avoided to take their vehicle to go in the mud path and they attempted to stay on the Thar road itself. The petitioner was aged about 22 years at the time of the incident. There is no other bad antecedent for the petitioner. The petitioner was arrested and remanded to custody pending trial and the petitioner, after conviction also, was again sent to the prison and has totally undergone imprisonment for a period more than 25 days. Therefore, considering the over all facts and circumstances of this case, I am inclined to modify the substantial sentence of imprisonment alone from the period of two years to the period already undergone by the petitioner and the fine amount imposed by the Trial Court shall stand confirmed.
13.Accordingly this criminal revision is partly allowed.
04.07.2022 Index : Yes/No Internet: Yes /No Speaking/Non-speaking order sli https://www.mhc.tn.gov.in/judis 10/12 Crl.R.C.No.756 of 2019 To
1.The Inspector of Police, Sathyamangalam Police Station, Erode District.
2. The III Additional District and Sessions Judge, Gobichettipalayam.
3.The Judicial Magistrate, Sathyamangalam.
4.The Public Prosecutor, High Court of Madras.
https://www.mhc.tn.gov.in/judis 11/12 Crl.R.C.No.756 of 2019 D.BHARATHA CHAKRAVARTHY, J.
sli Crl.R.C.No.756 of 2019 04.07.2022 https://www.mhc.tn.gov.in/judis 12/12