Madras High Court
Arumugam vs State By Sub Inspector Of Police, ... on 22 June, 2001
Author: N. Dhinakar
Bench: N. Dhinakar
ORDER
1. The petitioner is the accused in C.C.No. 134 of 1994 on the file of the learned District Munsif-cum-Judicial Magistrate, Perundurai, Erode District. He was tried for the offence punishable under Sections 279 and 304-A, IPC, and the allegation against him is that at 4.00 p.m. on 30.9.1993, he being the driver of a bus belonging to a transport corporation, drove it in a rash and negligent manner and as a result of the rash and negligent driving, he hit a cyclist viz., Palanisamy and as a result of the said impact, Palanisamy died.
2. The case of the prosecution is that the petitioner was the driver of a bus belonging to a transport corporation. At 4.00 p.m. on 30.9.1993, he was driving the said bus from Thiruppur and at Chengappalli, he steered the bus towards west from south without applying brakes and as a result of such rash and negligent driving, the vehicle hit the cyclist, Palanisamy, causing injuries to him. P.W.I went to the police station, and gave a complaint regarding the incident, which according to the prosecution was witnessed by P.Ws.2 and 3. The crime was registered and investigation was taken up by P.W.5, the Sub-Inspector of Police, Uthukkuli Police Station. The inquest was conducted and the cycle was seized. Later the body was subjected to post-mortem and the vehicle was also inspected by the Motor Vehicles Inspector. When the accused was questioned under Section 313 of the Cr.P.C. on the incriminating materials appearing against him, he denied all the circumstances. The trial Court accepted the prosecution version, convicted the petitioner under Sections 279 and 304-A, IPC, and sentenced him to suffer one year simple imprisonment for the offence punishable under section 304-A and for. the offence punishable under Section 279, IPC. No separate sentence was imposed, which on appeal, was confirmed. Hence, the present revision.
3. The learned counsel appearing for the petitioner submits that the prosecution did not succeed in establishing the cause of death, since the prosecution did not examine the doctor, who conducted the post-mortem on the body of Palanisamy, but marked the post-mortem certificate only through the investigating officer and therefore, Ex.P.7 cannot be looked into as the contents are not proved. Similarly, the contents of Ex.P.6, the report alleged to have been given by the Motor Vehicles Inspector were also not proved and the said document was also marked only through the investigating officer. The petitioner raised an objection at the trial stage that these documents could not be marked through the investigating officer, but they have to be marked only through the persons, who prepared these documents. I see every force in the said contention. Section 294 of the Code of Criminal Procedure contemplates that where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. Sub-Section (2) of section 294, Cr.P.C. states that the list of documents shall be in such form as may be prescribed by the State Government and Sub-Section (3) of section 294, Cr.P.C. contemplates that where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed. The proviso to the said Section states that the Court may, in its discretion, require such signature to be proved. Section 294, Cr.P.C. also will not help the prosecution in this case for it to contend that no formal proof is required. When the above document was marked without examining the author of the document, it was objected by the petitioner and therefore, it must be said that the documents were marked without the consent of the petitioner. Secondly, even if a document has been marked under Section 294, Cr.P.C., it must be in accordance with the procedure contemplated under the said Section viz., that the list of documents shall be in such form as may be prescribed by the State Government. The prosecution did not mark the list of documents in the said form prescribed by the State Government. It is to be remembered at this stage that the Government of Tamil Nadu passed a Government Order in G.O.Ms.No.258 (Courts-V) dated 8.2.1983. describing the proforma stating that the documents can be marked only in the form mentioned in the Government Order. This is an admitted case where the prosecution did not mark those documents in the said form and also there was objection on the side of the accused for marking those documents. Under similar circumstances, the learned Single Judge in a judgment rendered on 13.11.1987 in Crl.R.C.No. 761 of 1984 held that marking the documents in such fashion is illegal and the Court cannot look into the document as the contents of the documents are not proved by the prosecution. In this case, as the prosecution did not prove the contents of Ex.P.6 and Ex.P.7, and therefore, they did not prove the case of death, I am of the view that the accused is entitled for an acquittal. Accordingly, he is acquitted. The bail bond, if any executed by the petitioner, will stand cancelled. The revision is allowed.