S.Srinivasan v. The Inspector Of Police

Bail Slip S.Srinivasan, S/o Sounderajan, Male aged about 45 years(Sole Accused) is released on bail vide court order dated 18/12/15 made in MP(MD) 1/15 in Crl.RC(MD) 592/15 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07.01.2020

CORAM

THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI S.Srinivasan : Revision Petitioner/ Appellant/Accused Vs.

The State Rep. by The Inspector of Police, Trichy City Traffic South Investigation Wing Police Station, Trichy District.

(Crime No.76 of 2010) : Respondent/Respondent/ Complainant Prayer: Criminal Revision has been filed under section 397 r/w 401 of Criminal Procedure Code against the judgment, dated 14.10.2015 passed by the I Additional District Judge (PCR), Tiruchirappalli, in C.A.No.31 of 2015, confirming the judgment, dated 30.03.2015 passed by the Chief Judicial Magistrate, Tiruchirappalli, in C.C.No.21 of 2012.

For Revision Petitioner : Mr.M.Rajaraman For Respondent : Mr.APG Ohm Chairma Prabhu Government Advocate (Criminal side)

O R D E R

This Criminal Revision is directed against the judgment, dated 14.10.2015 passed by the I Additional District Judge (PCR), Tiruchirappalli, in C.A.No.31 of 2015, confirming the judgment, dated 30.03.2015 passed by the Chief Judicial Magistrate, Tiruchirappalli, in C.C.No.21 of 2012.

2.The case of the prosecution is that on 24.02.2010 at 6.00 pm, the defacto complainant riding his Hero Honda Splender Plus Motor Cycle TN-45-AM-9851 along with his wife Shanthi and 6 months old child Viswanathan as pillion riders and when they were proceeding on Trichy-Pudukkottai road near Mudukkupatti branch road opposite to Sethuramapillai Colony, the Corporation bus No.TN-45-N2369, which was driven by the accused came in a rash and negligent manner and dashed against the two wheeler and as a result of which, 1/6

they sustained injuries and the pillion rider Shanthi died. The Inspector of Police, attached to Trichy City Traffic South Investigation Wing has filed a final report against the accused examining the witnesses.

3.In the trial court, 13 witnesses were examined and 11 Exhibits were marked. When the accused was questioned about the incriminating circumstances, he denied the same. The trial court convicted the petitioner for the offence under section 279 of IPC and sentenced him to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for one month and for the offence under section 337 of IPC (2 counts), sentenced him to pay a fine of Rs.500/- for each count, in default to undergo simple imprisonment for a period of 15 days for each count and for the offence under section 304-A IPC, sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for a period of one month. Aggrieved by the judgment of the trial court, the petitioner preferred appeal before the first appellate court and the first appellate court confirmed the findings of the trial court. Against which, the petitioner is before this court with this revision.

4.The learned counsel for the petitioner/accused submitted that the prosecution has failed to establish the ingredients required for all the offences with which he stood charged 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 vehicle and the eye witnesses are interested witnesses and the prosecution has failed to prove the case beyond reasonable doubt and the 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 both the courts below 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 petitioner for rash and negligent driving of the vehicle and passed proper sentence, which does not require any interference by this court and the 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.PW1 is the complainant and he gave Ex.P1 complaint to the police. PW1 in his complaint stated that on 24.02.2010 at 6.00 pm, the de-facto complainant was riding his Hero Honda Splender Plus Motor Cycle TN-45-AM-9851 along with his wife and 6 months old child as pillion riders and when they were proceeding on Trichy2/6

Pudukkottai road near Mudukkupatti branch road opposite to Sethuramapillai Colony, a Corporation bus bearing TN-45-N-2369, which was driven by the accused in a rash and negligent manner, dashed against the two wheeler and caused the accident and as a result of which, the Shanthi died due to the injuries sustained and he sustained injury and he gave Ex.P1 complaint. 8.PW1 in his evidence stated that on 24.02.2010 at 6.00 pm when he was riding his Hero Honda Splender Plus Motor Cycle TN-45AM-9851 along with his wife and his child, on Trichy-Pudukkottai road near Mudukkupatti branch road opposite to Sethuramapillai Colony, a Corporation bus TN-45-N-2369, which was driven by the accused in a speedy manner and dashed against the two wheeler and caused the accident and as a result of which, the Shanthi died. PW1 has not stated that the accused drove the vehicle in a rash and negligent manner.

9.PW2, PW4 and PW6 are cited as eye witnesses. PW2, PW4 and PW6 in their evidence stated that the driver of the vehicle drove his vehicle in a speedy manner, but they have not stated that the driver of the vehicle drove his vehicle in a rash and negligent manner.

10.PW3 and PW5 are Magazar witnesses. PW3 and PW5 deposed that on 24.02.2010 at 9.00 pm, the police came and inspected the place of occurrence and prepared Mahazar. PW9 is the Motor Vehicle Inspector and he deposed that he inspected the offending vehicle and the vehicle in which the deceased travelled and opined that the accident was not occurred due to any mechanical defect. 11.It is mainly argued on the side of the petitioner/accused that the oral evidence of the prosecution witnesses was not proved the rash and negligent driving of the accused and there are contradictions between the oral evidence of the prosecution witnesses and there can be no general presumption that a person should have driven a vehicle in a rash and negligent manner, merely because there was an accident.

12.At this juncture, it is relevant to refer the decision of this Court reported in 2017-1-LW.(Crl.)160 (M.Subramani Vs. State rep. By Inspector of Police, Edapadi Police Station, Salem District), wherein this court has held as follows:- "19.In State of Karnataka vs. Sathish (1998) 8 SCC 493), in a road accident where the accused was prosecuted under Section 304-A IPC, one of the witness had stated that the bus drive came driven the bus at a high speed. The Hon'ble Apex Court held that it would not satisfy the requirement of the driver driving the vehicle in a rash and 3/6

negligent manner as required under Section 304-A IPC and acquitted the accused."

20.In this respect, the following observations made by the Hon'ble Supreme Court in SATISH (supra) are relevant here to note:- 3.Both the Trial Court and the Appellate Court held the respondent guilty for offences under Sections 337, 338 and 304-A IPC after recording a finding that the respondent was driving the truck at a "high speed". No specific finding has been recorded either by the Trial Court or by the First Appellate Court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a "high speed", both the Courts pressed into aid the doctrine of res ipsa loquitur to hold the respondent guilty.

4.Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case.

In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report.

prosecution. This is a serious infirmity and lacuna in the prosecution case.

21.Subsequently, in Abdul Subhan vs. State (NCT of Delhi) {2007 Cri.L.J. 1089}, in a road accident case for an offence under Section 304-A IPC, the only available evidence of an Head Constable is that the bus driver had driven the bus fastly. The Delhi High Court relying on the Hon'ble Apex Court decision in SATISH (supra) held that the bus driver cannot be held to have drove the bus in a rash and negligent manner.

22.In State vs. Avadh Kishore {Crl.L.P.

No.213 of 2007 dated 30.1.2009 (Delhi High Court)}, the Delhi High Court reiterated its earlier view in ABDUL SUBHAN (supra).

23.Recently in Puttaiah @ Mahesh vs. State by Rural Police {Crl. Review Petition No.1317 of 2010 dated 4.3.2016 (Karnataka High Court)}, the Karnataka High Court held as under:

"In this view of the matter, both the Trial Court as well as the First Appellate Court have not assessed the oral and documentary evidence in right perspective. Both the Courts should have navigated through the evidence of material witnesses cautiously. Glaring inconsistencies have been brushed aside as minor variations. They have adopted wrong approach to the real state of affairs and have not properly scanned the evidence. Both the Courts have forgotten that the initial burden was on the prosecution to establish the charge of rashness or negligence beyond reasonable doubt. Thus, the judgments of both the Courts suffer from perversity and illegality. Hence, this Court is of the opinion that the revision petition is to be allowed."

13.On coming to the instant case on hand, the prosecution witnesses have not stated that the accident occurred due to the rash and negligent driving of the accused. For all the reasons stated above, this court is of the considered view that the prosecution has not proved the case beyond reasonable doubt.

14.In the result, this Criminal Revision is allowed. 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 5/6

cancelled and the fine amount if any paid by him shall be refunded to him.

Sd/- Assistant Registrar // True Copy // / /2020 Sub Assistant Registrar(CS) vsd To, 1.The Judicial Magistrate No V, Trichy.

2.The Chief Judicial Magistrate, Tiruchirapalli.

3.The I Additional District Judge (PCR), Trichy.

4.The Inspector of Police, Trichy City Traffic South Investigation Wing Police Station. 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

+1 CC to M/s.M/S.M.RAJARAMAN, Advocate ( SR-656[F] dated 08/01/2020 ) Order made in 07.01.2020 AP(03/06/2020) 6P 7C 6/6