Madras High Court
Mathiyazhagan vs State Through on 17 June, 2019
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
Crl.R.C(MD).No.661 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.06.2019
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
Crl.R.C(MD).No.661 of 2010
and
M.P(MD).No.2 of 2010
Mathiyazhagan ... Petitioner
Vs.,
State through
The Inspector of Police,
Bathalagundu Police Station,
Dindigul District.
In Crime No.213 of 2000 ... Respondent
PRAYER: Petition filed under Section 397 and 401 Code of
Criminal Procedure, against the judgment and conviction passed by
the learned Judicial Magistrate, Nilakottai in C.C.No.175 of 2000
dated 09.11.2009 for the offence under Section 279 of IPC and
sentenced him to undergo 6 months S.I., for the alleged offence
under Section 337 (8 counts) to undergo 3 months S.I., for the
offence under Section 338 (7 counts) to undergo 6 months S.I, and
for the offence under Section 304(A) (2 counts) to undergo one year
S.I., and to pay a fine of Rs.1000/- in default to undergo one month
S.I., and the same was confirmed by the Additional District and
Sessions Judge, Fast Track Court, Dindigul in C.A.No.66 of 2009
dated 14.06.2010.
For Petitioner : Mr.S.Balakarthick
For Respondent : Mr.A.Robinson
Government Advocate (Crl.side)
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Crl.R.C(MD).No.661 of 2010
ORDER
The revision petitioner was found guilty of the offences under Sections 279, 337(8 counts), 338(7 counts) and 304(A) (2counts) IPC and sentenced to imprisonment and also levied with fine. The details of conviction and sentence are as follows:-
Convicted under Sentence of imprisonment
Section
279 IPC To undergo Six months
simple imprisonment
337 IPC To undergo three months
(8 counts) simple imprisonment
for each count
338 IPC To undergo Six months
(7 counts) simple imprisonment
for each count
304(A) IPC One year simple
(two counts) imprisonment for each count
2.The judgment of conviction and sentence imposed by the learned trial Magistrate vide judgment dated 09.11.2009 in C.C.No. 175 of 2005 was confirmed in Crl.A.No.66 of 2009 on the file of the learned Principal District and Sessions Judge, Fast Track Court, Dindigul, vide judgment dated 14.06.2010. The same is under challenge in this revision case.
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3.The case of the prosecution is that on 08.05.2000, the revision petitioner was driving a lorry bearing registration No. TN- 57-7239 in Batlagundu-Nilakkottai Main road. He was going from Batlagundu towards Madurai. In other words, he was going west to east. A taxi bearing Registration No.TN-57-A-3344 was coming north to south in Konnampatti Road and turned towards Batlagundu on the west. The case of the prosecution is that both the lorry as well as the taxi were being driven in a rash and negligent manner. The lorry hit the taxi, which in turn, hit the police van bearing Registration No.TN-57-G-0163. The police van capsized causing death to one Head Constable, Palanivel and a by- stander, Sethuraman. Injuries were also caused two persons, who were sitting inside the van and to some others also. In this regard, Crime No.213 of 2000 was registered on the file of Batlagundu police station. Investigation was undertaken and final report was filed and the same was taken on file as C.C.No.175 of 2000 on the file of the learned Judicial Magistrate, Nilakottai. The police had arrayed not only the revision petitioner, who was the lorry driver, but also one Ramesh, the taxi driver, as A1 and A2. During the pendency of the trial, the taxi driver Ramesh passed away. The petitioner pleaded not guilty to the charges framed under Sections 3/10 http://www.judis.nic.in Crl.R.C(MD).No.661 of 2010 279, 337, 338 and 304(A) IPC and claimed to be tried. The learned trial Magistrate convicted the petitioner and sentenced him to imprisonment and he was also directed to pay Rs.1,000/- (Rupees One Thousand only) as fine. It was confirmed in toto by the lower appellate Court. Challenging the same, this revision case has been filed.
4.The learned counsel for the petitioner took me through the deposition of the witnesses and would point out that none of the witnesses had deposed that the revision petitioner had driven the lorry in question in a rash and negligent manner. When the witnesses had not so deposed against the revision petitioner, the question of fastening penal liability on the petitioner will not arise by invoking the maxim res ipsa loquitur. In this regard, he placed reliance on the decision reported in 2017-1-L.W.(Crl)160 [M.Subramani vs. State rep. by the Inspector of Police, Edapadi Police Station, Salem District] and the unreported decision dated 08.02.2018 made in Crl.R.C.No.190 of 2007 (M.Jeyabalan vs. State of Tamil Nadu Rep.by its Inspector of Police, Bazarr Police Station, Virudhunagar District). His further contention is that quite a few witnesses have categorically 4/10 http://www.judis.nic.in Crl.R.C(MD).No.661 of 2010 deposed that it was only the taxi driver and not the petitioner who had driven the vehicle in a rash and negligent manner. Another major contention raised by the petitioner's counsel is that the vehicles in question were never sent for inspection by the Motor Vehicle's Inspector and the damage report was not marked. The Motor Vehicles Inspector was not examined. Very many such lacunae in the prosecution case were highlighted by the petitioner's counsel.
5.The petitioner's counsel is right in his contention that unless the essential ingredients of Section 304(A) IPC are established, one cannot mechanically invoke the legal maxim res ipsa loquitur and find the petitioner guilty of the offence. The decision reported in 2017-1-L.W.(Crl)160 (cited supra) refers to the decision of the Honorable Apex Court in State of Karnataka Vs. Sathish reported in (1998) 8 SC 493. But a careful reading of all the decisions relied on by the petitioner's counsel indicates that the Courts have frowned upon invoking maxim only in the absence of any material on record. If there is any convincing material on record, then one can certainly call in aid the said legal maxim. In this case, the rough sketch has been marked as Ex.P.21. 5/10 http://www.judis.nic.in Crl.R.C(MD).No.661 of 2010 A mere look at the rough sketch indicates that the lorry driven by the petitioner, after hitting the taxi, had come to a halt on the extreme right end of the road. In fact, Batlagundu-Nilakottai main road is 24 feet wide and there is a mud road on the side. The lorry had come to the extreme right-end and substantial portion of the lorry was found on the mud road. In the rough sketch in front of the lorry, the taxi is found.
6.Next in the rough sketch, is the police van, that had turned turtle causing death of two persons and injuries to others. P.W.12, in his chief examination, would depose as to how the taxi hit the police van. In the rough sketch, it is seen that the police van was parked near the spot where Venkasthri Kottai road is joining the main road. The police van was parked on the correct side of the road. The rough sketch (Ex.P.21) which indicates the respective position, in which, the three vehicles were found and testimony of P.W.12 tally with each other. It is not the case of the accused that the rough sketch has been wrongly prepared. In fact, the preparation of Ex.P.21/rough sketch was not seriously challenged by the accused in his cross examination. P.W.1 as well as P.W.12 have spoken categorically that the lorry driven by the petitioner collided with taxi and the taxi in turn hit the police van. 6/10 http://www.judis.nic.in Crl.R.C(MD).No.661 of 2010 It is not the case of the petitioner that the lorry was not involved in the head on collision. In fact, the petitioner could have very well got into the witness box and deposed as to the manner in which, the accident had taken place. The revision petitioner did not do so. Of course, I am conscious of the fact that the revision petitioner was facing criminal charges and that therefore, he is not obliged to get into witness box. This Court cannot draw any adverse inference against the petitioner for not having entered the witness box. But even during the examination under Section 313 Cr.P.C, when questions were put to the accused to explain circumstances bearing against him in the prosecution evidence, the revision petitioner merely characterized the witnesses as false witnesses. He did not say anything more. In fact, in the testimony of P.W.12, it had been categorically mentioned that the lorry was driven in a rash and negligent manner without even sounding the horn. The lorry was going from west to east and the taxi coming north-south had taken a turn towards west suddenly. The petitioner could have applied the brake. But he could not do so. The lorry eventually landed on the extreme right side on the mud road. This indicates that the lorry was driven in a rash and negligent manner. The testimony of P.W.1 and P.W.12 categorically establish that the accident could have been averted, if the petitioner had not driven 7/10 http://www.judis.nic.in Crl.R.C(MD).No.661 of 2010 his vehicle in a rash and negligent manner. Of course, if the taxi in question had not come, the accident would never have taken place. That is why, the prosecution rightly arrayed not only the petitioner but also the taxi driver as an accused in this case.
7.I must of course record my view that the investigation had been conducted in a casual manner. This case involved the death of a Head Constable Palanivel. Even in such a case, it is unfortunate that the police have not taken sufficient interest. The vehicles involved ought to have been sent for inspection of the damage caused to them. Inspection report from the Motor Vehicle's Inspector ought to have been obtained. It should have been marked. The Motor Vehicles Inspector ought to have been examined. That would have been definitely strengthened the prosecution case. But the petitioner cannot take advantage of these lacunae on the part of the prosecution.
8.Both the Courts below have concurrently found the petitioner guilty of the offences in question. I am of the view that the judgments passed by the Courts below do not warrant any interference. The petitioner had been sentenced to one year rigorous imprisonment. Taking note of the mitigating 8/10 http://www.judis.nic.in Crl.R.C(MD).No.661 of 2010 circumstances pleaded by the petitioner's counsel, the sentence is reduced to six months imprisonment. This criminal revision case stands partly allowed. The learned trial Magistrate shall take consequential steps to enforce this order. Consequently, connected Miscellaneous Petition is closed.
17.06.2019
Index : Yes/No
Internet : Yes/No
rmk
To
1.The Inspector of Police,
Bathalagundu Police Station,
Dindigul District.
2.The Judicial Magistrate, Nilakottai.
3.The Additional District and Sessions Judge, Fast Track Court, Dindigul.
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rmk Crl.R.C(MD).No.661 of 2010 17.06.2019.
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