Madras High Court
Kumar : Revision vs State Rep. By Inspector Of Police on 31 March, 2010
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation 13.02.2019
Date of Judgment 19.03.2019
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.R.C(MD)No.353 of 2010
Kumar : Revision Petitioner/
Appellant/Accused
Vs.
State rep. by Inspector of Police,
Sethubavachatram Police Station,
Thanjavur District.
(Crime No.281 of 1998) : Respondent/Respondent/
Complainant
Prayer: Criminal Revision has been filed under Sections
397 & 401 of Criminal Procedure Code, against the judgment,
dated 31.03.2010 passed by the Additional District and Sessions
Judge (FTC-II), Pattukkottai, in Crl.A.No17 of 2010, confirming the
judgment of the Judicial Magistrate, Pattukkottai, in STC No.4 of
2009, dated 01.02.2010.
For Revision Petitioner : Mr.S.Deenadhayalan
For Respondent : Mr.A.Robinson
Government Advocate
(Criminal side)
http://www.judis.nic.in
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JUDGMENT
This Criminal Revision has been filed against the judgment, dated 31.03.2010 passed by the Additional District and Sessions Judge (FTC-II), Pattukkottai, in Crl.A.No17 of 2010, confirming the judgment of the Judicial Magistrate, Pattukkottai, made in STC No.4 of 2009, dated 01.02.2010.
2.The case of the prosecution is that on 23.07.2007 at 17.15 hours, the accused drove the Government Bus TN-49-1270 from Peravurani-Pattukkottai and when the bus was nearing Alagiya Nayakipuram Government Hospital, the driver of the bus attempted to overtake the school van, but unfortunately the bus fell in the channel situated on the southern side of the road and as a result, some of the passengers sustained injuries. The Inspector of Police attached to Sethubhavachathiram Police Station has filed a final report under Sections 279, 337 and 338 IPC against the accused.
3.In the trial court, 21 witnesses were examined and 22 Exhibits were marked. When the accused was questioned about the incriminating circumstances, he denied the same. The trial court http://www.judis.nic.in 3 convicted the accused and sentenced him to pay a fine of Rs.500/-, in default to undergo SI for one month for the offence under Section 279 IPC; for the offence under Section 337 IPC (15 counts) to pay a fine of Rs.150/- for each count, in default to undergo 3 weeks SI for each count; and for the offence under Section 338 IPC, sentenced him to undergo imprisonment for 2 years and to pay a fine of Rs.500/-, in default SI for one month. Aggrieved by the conviction and sentence passed by the trial court, the revision petitioner filed an appeal in C.A.No.17 of 2010, which was heard by the District and Sessions Judge (FTC No.II), Pattukottai. The first appellate Court set aside the sentenced imposed for the offence under Section 338 IPC and in lieu of that, the accused is sentenced to undergo imprisonment till the rising of the trial court on any one of the days within 30 days from the date of the judgment, instead of 2 years Rigorous Imprisonment and further, directed to pay a sum of Rs.10,000/- to be paid to PW5. Aggrieved over the same, the revision petitioner is before this court.
4.The learned counsel for the revision petitioner/accused submitted that the prosecution has failed to establish the ingredients required for the offences with which he stood charged http://www.judis.nic.in 4 and convicted him for the said offences and none of the witnesses have spoken that the accused has 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 there is no explanation from PW21 that 161 Cr.PC statement and observation mahazar would belatedly sent to the Court and the Courts below failed to appreciate the fact that no trip sheet had been recovered from the petitioner and there are material contradictions in Exs.P1 and P21 with regard to the inclusion of the petitioner's name and in this case, no X-ray report had been marked to prove the fact that PW5 had sustained grievous injury. In view of the above circumstances, the prosecution has failed to prove the case beyond reasonable doubt and the revision petitioner/accused is entitled to acquittal and prays that the criminal revision may be allowed.
5.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that the first appellate court 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 http://www.judis.nic.in 5 proper sentence, which do not require any interference by this court and the revision petitioner/accused is not entitled for acquittal and prays that the criminal revision may be dismissed.
6.Heard both sides and perused the materials available on record.
7.The main contention raised on the side of the revision petitioner is that no witnesses deposed that the accused drove the vehicle in a rash and negligent manner and due to it, the offending vehicle was capsized.
8.In this case PW1 is the injured and he gave Ex.P1 complaint statement to the police. PW1 in his complaint statement stated that on 23.03.2007 he along with his wife and sister went to Thuraiyur to attend the funeral ceremony of his mother-in-law and after attending the said ceremony, they were travelling in the Government bus TN-49-N-1270 flying from Peravurani– Pattukottai, at that time, the accused over-took the school bus, which was going in front of the said Government bus and while doing so, the accused drove the Government bus in a rash and negligent manner and due to which, the Government bus fell down on the southern side of the http://www.judis.nic.in 6 said road in a channel and as a result, some persons got grievous injuries and some persons got simple injuries and the injured were taken to Government Hospital, Pattukottai and on receipt of the information from Government Hospital, Pattukottai, the Inspector of Police, Sethubhavasatram Police Station went to the Government Hospital, Pattukottai and recorded the complaint statement of PW1.
9.PW1 in his evidence stated that on 23.03.2007 he along with his wife and sister went to Thuraiyur to attend the funeral ceremony of his mother-in-law and after attaining the said ceremony, they were travelling in the Government Bus TN-49- N-1270 flying from Peravurani–Pattukottai, at that time the accused over-took the school bus, which was going in front of the said Government bus and the Government bus fell down on souther side of the road in a channel and due to which, some persons got grievous injury and some persons got simple injuries and the injured were taken to Government Hospital, Pattukottai and on receipt of the information from Government Hospital, Pattukottai, the Inspector of Police, Sethubhavasatram Police Station went to the Government Hospital, Pattukottai and recorded the complaint statement of PW.1.
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10.PW1 in his complaint statement stated that the accident occurred due to the rash and negligent driving of the accused, but during his evidence, PW1 has not stated that the accident occurred due to the rash and negligent driving of the accused. PW2 to PW4, PW6 to PW13, PW18 and PW19 are the injured in this case. The above injured and the eye witnesses have not stated that the accused drove the vehicle in a rash and negligent manner and due to it, the offending vehicle was capsized and they got injuries.
11.In this case, the driver of the school bus, who went in front of the offending vehicle was not examined. He is the material witness to speak about whether the accused drove the vehicle in rash and negligent manner or not. The Investigating Officer has not taken any steps to examine the driver of the above school bus. If the driver of the above school bus was examined, it is found that any fault on the driver of the school bus or not. Hence, the non- examination of the material witness is fatal to the prosecution. http://www.judis.nic.in 8
12.As per the prosecution case, number of persons got grievous injuries and some persons got simple injuries. In respect of PW5, the Doctor stated PW5 sustained grievous injury. To prove it, the X-ray of PW5 was not marked. The non-production of the X- ray report is fatal to the prosecution.
13.The learned counsel for the revision petitioner/accused argued that the alleged occurrence was taken place on 23.07.2007. But the F.I.R. received by this court only on 20.08.2007. No proper explanation was given for the delay in despatching the F.I.R. to the Court. Hence, the delay in despatching F.I.R to the court is fatal to prosecution and prays that the accused is entitled to acquittal.
14.In this case, the date of occurrence is 23.07.2007, but the FIR (Ex.P21) was received by the court only on 20.08.2007. No proper explanation was given by the prosecution for the delay in despatching the FIR to the Court. Hence, it is held that the delay in despatching the FIR to the Court is fatal to the prosecution. Further, with regard to the condition imposed by the trial Court on the accused for the offence under Section 338 of IPC, this court is not inclined to interfere in the decision taken by the first appellate court.
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15.For all the reasons stated above, this court is of the considered view that the prosecution has failed to prove the case beyond reasonable doubt and hence, the findings of the courts below are liable to be set aside and accordingly, they are set aside. However, with regard to compensation, the trial court has directed the appellant/accused to pay Rs.10,000/- to the injured PW5/Ibramsah, which is to be confirmed since PW5 sustained grievous injury in the alleged accident.
16.In the result, this Criminal Revision is allowed as indicated above. The impugned judgment of conviction and sentence are set aside. The revision petitioner/accused is acquitted of the charges levelled against him. The bail bond if any executed by him shall stand cancelled and the fine amount if any paid by him shall be refunded to him.
19.03.2019 Index:Yes/No Internet:Yes/No vsd/er http://www.judis.nic.in 10 T.KRISHNAVALLI,J vsd/er To,
1.The Additional District and Sessions Judge, (FTC-II), Pattukottai.
2.The Judicial Magistrate, Pattukkottai.
Judgment made in Crl.R.C(MD)No.353 of 2010 19.03.2019 http://www.judis.nic.in 11 http://www.judis.nic.in