Madras High Court
Saravanan vs State By on 18 April, 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18.04.2018 CORAM THE HONOURABLE MR.JUSTICE A.M.BASHEER AHAMED Crl.RC(MD)No.59 of 2007 Saravanan : Petitioner / Accused Vs. State by The Sub Inspector of Police, Musiri Police Station, Trichy District Crime No.509 of 2004 : Respondent / Complainant Prayer: Revision is filed under Section 397 r/w 401 of Criminal Procedure Code, praying to set aside the Judgment, dated 14.11.2006, passed in Crl.A.No.70 of 2006 by the learned Additional District Sessions Judge, (FTC No.1), Trichy. !For Petitioner : Mr.S.Muthuvenkatesan ^For Respondent : Mr.K.S.Duraipandian, Addl.Public Prosecutor :ORDER
The Criminal Revision has been filed praying to set aside the Judgment, dated 14.11.2006, passed in Crl.A.No.70 of 2006 by the learned Additional District Sessions Judge, (FTC No.1), Trichy, in and by which, the appellate Court confirmed the conviction and modified the sentence passed by the trial Court in C.C.No.198 of 2004, from 1 year simple imprisonment to 3 months simple imprisonment. However, the trial Court confirmed the fine amount of Rs.2000/- imposed by the trial Court, in default, to undergo simple imprisonment for a further period of six months.
2. The facts leading to the filing of the present criminal Revision Case, can be briefly stated as follows:-
(i) On 24.06.2004, at about 1.30 p.m., near Musiri ? Vadukapatti bus stop in Musiri ? Punnalam road, when the rider of the two wheeler viz., Hero Honda, bearing Registration No.TN-21-R-1747, driven the vehicle in a rash and negligent manner and dashed against a pedestrian viz., Sarasu, who went along with his son Kumar, on the extreme left side of the road. Due to the impact, the said Sarasu sustained grievous injuries and immediately, she was taken to the Government Hospital at Musiri, for treatment and latter she died.
(ii) Based on the information, the Inspector of Police, Musiri, went to the Hospital and after enquiry, registered a case in Crime No. 509 of 2004, for an offence punishable under Section (A) of IPC., against the motorcyclist and final report was filed and taken on file as C.C.No.198 of 2004, by the learned Judicial Magistrate, Musiri.
(iii) The learned Judicial Magistrate, Musiri, after examining the witnesses, found the accused guilty for the offence under Section 304(A) of IPC., sentenced him 1 year simple imprisonment and to pay a fine of Rs.2000/-, in default, to undergo a further period of six months simple imprisonment. On appeal, the appellate Court, confirmed the conviction and reduced the sentence from 1 years to 3 three months simple imprisonment with default clause. Aggrieved by the same, the present Criminal Revision has been filed by the petitioner for the aforesaid relief.
3. In order to prove the case, the prosecution has examined P.Ws.1 to 14 and marked Exs.P1 to 7. No one was examined on the side of the accused as defence witness and no document was also marked.
4. The learned counsel appearing for the petitioner would submit that the Doctor, who treated the injured, was not examined before the Court below, which was fatal to the prosecution. The prosecution has not proved its case beyond reasonable doubts and the place of occurrence of the accident and non-consideration of this facts needs interference. There is lot of contradiction between the statement of the witnesses and records and non- consideration of the same and ignoring the major facts and convicting the petitioner is not valid in the eye of law. He would further submit that the Courts below, without any legally acceptable evidence came to the conclusions that the petitioner had driven the vehicle in a rash and negligent manner. The witnesses, those who were supporting the theory of the prosecution, all are interested witnesses ie., relative of the deceased and non-consideration of the same needs interference and therefore, the order of conviction and sentence of the Courts below are liable to be set aside.
5. On the other hand, the learned Additional Public Prosecutor support the impugned Judgment and order passed by the Courts below.
6. I have carefully considered the contentions advanced by the learned counsel appearing on either side. I have perused the material documents and also the evidence on record.
7. On the side of the prosecution, P.Ws.1 to 5 were shown and were examined as eye-witnesses to prove the occurrence in which the accused had driven the motorcycle and dashed against the deceased and caused severe injuries on the date of accident, leading to death of the deceased. P.W.1 is the son of the deceased and he was alleged to be accompanied with the deceased on the date of occurrence ie., on 24.06.2004. It is further stated by the prosecution that P.W.1 had informed the accident to P.W.11 / Sub- Inspector of Police, Musiri Police Station, on 24.06.2004, by way of recording the statement from him, since the deceased was unable to speak and was under treatment at Government Headquarters Hospital, Trichi and the said complaint / statement was marked as Ex.P1 and based on such, Ex.P3 / FIR was registered for the offence under Sections 279 & 377 of IPC., against the accused.
8. The alleged accident took place on 24.06.2004, at about 1.30 p.m. Prosecution has admitted that the injured, who sustained severe injuries in the accident was taken to the Government Hospital, Musiri, at first instance on the date of accident and thereafter, the injured was taken to the Government Headquarters Hospital at Trichy, on the same day, for further treatment and the injured died at about 2.40 Hrs., early morning on 25.06.2004, as per Ex.P4 / Inquest Report. Death intimation in respect of the deceased was not produced by the prosecution. It is further stated in Ex.P6 that injured was admitted on 24.06.2004 at about 16.20 Hrs at Government Headquarters Hospital, Trichy for further treatment. The Doctors of the Government Hospital at Musiri, who treated the injured at first instance and also the Tiruchirapalli Government Hospital, who admitted and examined the injured on 24.06.2004, after referred by the Government Hospital, Musiri, were not examined by the prosecution. No reason is assigned by the prosecution for non-examination of those Doctors during trial.
9. There is no evidence to show the nature of injuries found upon the injured at the first instance and also the state of consciousness of the injured at the time of admission in the Government Hospitals and also there is no proof to show that the injured was not able to speak due to the occurrence, at the time of recording complaint / statement from P.W.1 by the Sub-Inspector of Police, Musiri. Hence, non-examination of Doctors, who admitted and treated the injured on 24.06.2004, is a fatal to the prosecution, as contended by the counsel for the appellant.
10. Admittedly, the injured died on 25.06.2004, at about at about 2.40 Hrs., in early morning. Prosecution contended that the injured died due to the injuries caused in the accident, which occurred due to rash and negligent driving of the motorcycle on the date of accident by the accused. Alteration report in respect of the offence punishable under Section 304-A IPC., was also not produced and marked by the prosecution during the trial. P.W.14 / Investigation Officer, who filed the charge sheet for the offence under Section 304-A IPC., against the accused did not speak about the alteration of the charges, after the death of the deceased in the Government Hospital at Trichy.
11. There is no evidence to show by the prosecution that the accused drove the motorcycle in a rash and negligent manner, which is essential ingredients to attract the offence under Section 304-A IPC., and caused the accident. The eye-witnesses, who are P.Ws.1 to 5 did not depose about the rash and negligent manner of driving of the accused on the date of accident. He had spoken that the accused came in a high speed on the date of accident, which is not sufficient in law to attract and punish for the offence under Section 304-A IPC.
12. The case of the prosecution is that the occurrence took place while the deceased with her son (P.W.1) was walking from west to east in the northern side of Musiri ? Pulivalam Road. P.W.1 deposed that P.Ws. 2 to 5 were the eye-witnesses, who saw the occurrence. P.Ws.2 to 5 deposed that while they were taking a cup of tea, in a tea-stall, situated in the northern side of the Vadukapatti bus stop, they witnessed the occurrence. P.W.14 / Investigating Officer visited the occurrence place in the presence of P.Ws.10 & 13 and prepared Observation Mahazar (Ex.P2) and drew the Rough Plan (Ex.P5).
13. On perusal of Exs.P2 and P5, the existence of tea shop and also Vadukapatti bus stop do not find a place in those documents and it is also admitted by P.W.14 in his evidence. P.W.14 further deposed that the occurrence took place in the northern side of east ? west Tar Road. P.Ws.1 to 3 deposed that the occurrence took place on the sand road, which is situated on the northern side of the east ? west Tar road (Musiri to Pulivalam main road). P.Ws.4 and 5 did not corroborate the place of occurrence, as stated by P.Ws.1 to 3. Hence, there is no concrete evidence in respect of place of occurrence, as to whether it is a Tar road or sand road between the Investigating Officer and the eye-witnesses.
14. P.W.7, who is one of the Observation Mahazar witness deposed that the motorcycle was found lying half of it in the sand road and remaining half of it in the tar road on the occurrence place. P.W.10 / another Observation Mahazar witness deposed that the motorcycle and glass pieces were not found in the occurrence place. P.W.14 / Investigating Officer also deposed that the motorcycle was not found at the time of his visit on the occurrence place and he has seen the vehicle in the Police Station. P.Ws.7, 10 and 13 were examined, as Observation Mahazar witnesses. P.Ws.7 and 13 are one and the same. Only two witnesses were shown in the Observation Mahazar, as eye-witnesses signed in the mahazar.
15. P.W.1 deposed as follows:-
?ehDk; vd; mk;khTk; vq;fs; Cuhd fhkhl;rpgl;bapypUe;J ney; miwg;gjw;fhf tLfg;gl;bf;F te;Njhk;. ehDk; vd; mk;khTk; tLfg;gl;b g]; ];lhg;gpy; ,wq;fp Rkhh; Rkhh; 25 mb J}uk; fpof;F Nehf;fp Ngha;nfhz;bUe;Njhk;. ehq;fs; g];]py; ,Ue;J Nuhl;bd; njd;Gwkhf ,wq;fp, tlf;fhf fpuh]; nra;J gpwF Nuhl;bd; tlf;FGwkhf fpof;F Nehf;fp nrd;W nfhz;bUe;Njhk;. vq;fs; Ciur; Nrh;e;j Kj;Jrhkp, nghparhkp, Nfhghy;, rptrq;fud; MfpNahh; me;j g]; ];lhg;gpy; epd;W Ngrpf; nfhz;bUe;jhh;fs;.?
16. P.W.2 deposed as follows:-
Krpwpapy; ,Ue;J vq;fs; Ciur; Nrh;e;j Kj;Jrhkp, Nfhghy;, nghparhkp Mfpa %tUld; ehDk;, ,uz;L irf;fpspy; ehd;F NgUk; tLf;fg;gl;b nrd;Nwhk;. tLfg;gl;bapy; g]; ];lhg;gpw;F tlGwkhf cs;s xU Bf;filapy; ehy;tUk; B rhg;gpl;Nlhk;. me;j filfhuh; ngah; vdf;F njhpahJ. ehq;fs; ehd;F NgUk; filf;F Kd;ghf ntspapy; epd;W fpof;Fjpir Nehf;fp jpUk;gp Bf;Fbj;Jf;nfhz;bUe;Njhk;. mg;NghJ m.rh.1k; mth; mk;khTk; g];ir gpl;L ,wq;fp tlf;fhf te;J gpwF fpof;F Nehf;fp Ngha;nfhz;bUe;jhh;fs;.
17. P.W.3 deposed as follows:-
ehd;, Nfhghy;, Kj;Jrhkp %tUk; vq;fs; Ch; jpUtpohtpw;fhf rhkhd;fs; thq;fptpl;L tLfg;gl;b te;J tpl;Nlhk;. rptrq;fuid ehq;fs; re;jpj;jJ tLf;fg;gl;bapy;jhd;. rptrq;fud; Krpwpapy; ,Ue;J xU b.tp.v];.50 te;J tpl;lhh;. ehq;fs; %tUk; MSf;nfhU irf;fpspy; tLfg;gl;b nrd;Nwhk;. ehq;fs; B rhg;gpl;l Bf;filapd; chpikahsh; ngah; njhpahJ. ehd; B rhg;gpl;l filf;F fpof;FGwkhf tpgj;J ele;jJ. ehq;fs; Nkw;gb Bf;filapy; ntspapy; epd;Wnfhz;L B rhg;gpl;Lf;nfhz;Nl tpgj;ij ghh;j;Njhk;.
18. P.W.4 deposed as follows:
ehd;, nghparhkp, rhl;;rp rptrq;fud;, Kj;Jrhkp MfpNahh; vq;fs; Ch; jpUtpohtpw;fhf rhkhd;fs; thq;f Krpwp te;jpUe;Njhk;. gpwF Krpwpapy; rhkhd;fs; thq;fp nfhz;L jpUk;g vq;fs; Cuhd fhkhl;rpgl;b nry;tjw;fhf NghFk;topapy;jhd; tLfg;gl;b g]; ];lhg;gpy; cs;s Bf;filapy; te;J Bf;Fbj;Njhk;. vd; irf;fps; kw;Wk; rptrq;fud; irf;fpspYk; xU irf;fpspy; ,uz;L Ngh; tPjk; Chpy; ,Ue;J rhkhd;fs; thq;fptpl;L jpUk;gp nrd;Nwhk;.
19. P.W.5 deposed as follows:-
ehDk;, rptrq;fud;, nghparhkp, Nfhghy; Mfpath;fSld; Gyptyk; nrd;W rhkhd;fs; thq;fpf; nfhz;L Krpwp Gyptyk; Nuhl;by; Nkw;fhf te;Jnfhz;bUe;Njhk; vd;Wk;, mg;NghJ vq;fSf;F vjpNu te;J vq;fs; Ciur; Nrh;e;j ey;yjk;gp kidtp ruR mth; kfd; Fkhh; ,UtUk; fpof;F Nehf;fp te;jhh;fs; vd;Wk; mNjrkak; vq;fSf;F gpd;dhy; te;j `{NuhN`hz;lh tz;b mij Xl;bte;j egh; mjpNtfkhfTk;, m[hf;fpuijahfTk; Xl;bte;J vq;fis Ke;jpr;nrd;W ele;Jte;j ruR kPJ gaq;fukhf Nkhjp tpgj;J Vw;gLj;jptpl;lhh; vd;W ehd; NghyPrhh; tprhuizapy; $wtpy;iy. rhkhd;fs; thq;f %d;W irf;fpspy; nrd;Nwhk; jpUk;gTk; rhkhd;fs; thq;fp tpl;L %d;W irf;fpspYk; te;J Bf;Fbj;Njhk;.
20. P.W.14 / Investigating Officer deposed as follows:-
vdJ tprhuizapy; rhl;rpfs; rptrq;fud;, Nfhghy;, nghparhkp, Kj;Jrhkp MfpNahh;fs; jhq;fs; Krpwpf;F te;jjhfTk;, mq;F mth;fs; xUtiu xUth; re;jpj;Jf; nfhz;ljhfTk; gpwF ehy;tUk; tLfg;gl;bf;F te;jjhfTk; tLfg;gl;bapy; te;J xU Bf;filapy; te;J Bf;Fbj;Jf; nfhz;bUe;jjhfTk; mg;NghJ tpgj;ijg; ghh;j;jjhfTk; vdJ tprhuizapy; $wtpy;iy.
21. Considering the evidence of the alleged eye-witnesses examined by the prosecution to prove the occurrence, it creates so-many doubts regarding the presence of eye-witnesses, who are said to have seen the occurrence, in the minds of the Court. The findings recorded by the trial Court and the appellate Court to the effect that the accident occurred only due to rash and negligent driving of the accused, which caused the death of the deceased, are not correct. The trial Court and the appellate Court while appreciating the evidences and eye-witnesses have failed to note the essential ingredients of Section 304-A IPC., and the contradictory versions of the eye-witnesses during trial and also non-examination of important witnesses by the prosecution. Hence, the conviction imposed on the accused based on such findings is without any basis or in evidence on the side of the prosecution and such findings are legally unsustainable.
22. None of the alleged eye-witnesses have spoken about the fact that the accused has driven the motorcycle either rashly or negligently on the date of the occurrence. There are material discrepancies in the evidence of the eye-witnesses and the above facts were not noticed by the Courts below. The attention of this Court is also drawn to the Judgment of this Court in M.Subramani Vs. State represented by the Inspector of Police, Edapadi Police Station, Salem District reported in (2017 1 L.W Crl.160) wherein it has been held that ? Eye-witnesses did not depose the driving of the bus by the driver in a rash and negligent manner and hence, a sentence based on such finding is legally unsustainable.
23. Considering the above facts and circumstances of the case, this Court is inclined to set aside the conviction recorded by the trial Court and confirmed by the appellate Court and the revision petitioner / accused is found not guilty under Section 304-A IPC., and he is acquitted from the charges.
24. In the result, this Criminal Revision Petition stands allowed and the conviction ordered by the learned Judicial Magistrate, Musiri, in C.C.No.198 of 2004 and confirmed by the learned Additional District Sessions Judge, (FTC No.1), Trichy in Crl.A.No.70 of 2006, is set aside. The trial Court is directed to refund the fine amount paid by the accused, if any, on application. The bonds executed by the accused stands cancelled.
To
1.The Additional District Sessions Judge, Fast Track Court No.1, Trichy.
2.The Judicial Magistrate, Musiri.
3.The Sub Inspector of Police, Musiri Police Station, Trichy District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
5.The Record Keeper, Criminal Record Section Madurai Bench of Madras High Court.
.