BAIL SLIP The Petitioner/Accused namely Kumar, S/o. Periyasamy, was ordered to be released on bail as per the order of this court in MP No.2 of 2009 in Crl RC No.1118 of 2009, dated 02.12.2009. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.06.2011 CORAM THE HONOURABLE MS. JUSTICE R.MALA CRL.R.C.No. 1118 of 2009 Kumar .. Petitioner/Accused ..Vs.. State rep. by Inspector of Police Perunthurai Police Station Crime No.217/2003 (Oothukuli Police Station) .. Respondent/Complainant Prayer:- This Criminal Revision Case is filed under Sections 397 read with 401 of Cr.P.C., against the judgment made in C.A.No.290/2008, dated 26.08.2009, on the file of the Additional District cum Fast Track Court No.I, Erode, confirming the conviction and sentence passed in judgment dated 07.10.2008 in C.C.No.324/2003 on the file of District Munsif cum Judicial Magistrate, Perunthurai. For Petitioner : Mr.A.Thiyagarajan For Respondent : Mr.C.Emalias Ms.M.F.Shabana Government Advocate (Crl.side) ORDER This criminal revision has been preferred against the judgment of conviction and sentence dated 26.08.2009, made in C.A.No.290/2008, on the file of the Additional District cum Fast Track Court No.I, Erode, whereby the accused was convicted for the offence punishable under Section 304A I.P.C. (4 counts) and sentenced him to undergo one year rigourous imprisonment for each counts and to pay a fine of Rs.5,000/- for each counts, totally Rs.20,000/-, in default in payment to undergo three months' rigourous imprisonment and the sentence was ordered to be run concurrently, confirming the judgment https://hcservices.ecourts.gov.in/hcservices/ of conviction and sentence dated 07.10.2008, made in C.C.No.324/2003, on the file of the District Munsif cum Judicial Magistrate's Court, Perunthurai. 2.The case of the prosecution is as follows: (i)On 22.08.2003, at about 3.30 p.m., P.W.1 along with his friend P.W.8 were proceeding in a T.V.S.50 near Chengapalli Karupparayan temple at Kovai-Perunthurai road, at that time, the accused was driving the lorry bearing Registration No.KA02-AA2455, which was proceeding from west to east direction in a rash and negligent manner, dashed against Maruthi omni van bearing Registration No.TN-01-F.3505, which resulted to fatal injuries of four persons namely, Driver Murugesan, Ambujam, wife of P.W.4- Krishnamoorthy, Kamalam, wife of P.W.2-Manickam and Mohandoss, son of P.W.3-Narayanasamy, who were lost their life in the said accident. P.W.5-Periathambi and P.W.8-Jeeva were examined as eye-witnesses, but they turned hostile. (ii)P.W.1-Suresh gave Ex.P1 complaint to P.W.9-Duraisamy, Sub- Inspector of Police, at 5.30 p.m, who registered a case in Cr.No.217 of 2003 for the offence under Sections 279 and 304(A) I.P.C. and preferred printed F.I.R. Ex.P5. P.W.9 conducted inquest on two bodies namely, Mohandoss and Murugesan and prepared respective inquest reports under Exs.P6 and P7. Then he sent the bodies to the Government Hospital, Tiruppur for conducting autopsy and their respective post-mortem certificates were marked under Exs.P14 and P15. After examining the witnesses and recording their statements, he sent the report to the higher official. (iii)P.W.10-Natarajan, Inspector of Police, took up the matter for investigation and went to the place of occurrence. In the presence of witnesses P.W.6 Thangavel and one Senthilkumar, he prepared Ex.P2 observation mahazar and Ex.P8 rough sketch. Then he conducted inquest on two bodies namely, Kamalam and Ambujam and prepared respective inquest reports under Exs.P9 and P10. He sent the bodies to the Government Hospital, Tiruppur, for conducting autopsy and their respective post-mortem certificates were marked under Exs.P12 and P13. Thereafter, he seized damaged parts of Maruthi omni van under Ex.P3 seizure mahazar and sent the same to the Court under Form 95 Ex.P11. Ex.P16 is the trip sheet of the lorry, which was seized to prove that the accused alone drove the vehicle at the time of accident. Then, P.W.10 sent the vehicles for inspection. (iv)P.W.7-Sivagurunathan, Motor Vehicle's Inspector, inspected the vehicles and gave Ex.P4 Motor Vehicle's Inspection Report. After completing investigation, P.W.10 filed the charge sheet against the accused for the offence under Sections 279 and 304(A) I.P.C. (4 counts). https://hcservices.ecourts.gov.in/hcservices/ 3.The trial Court after following the procedure, framed necessary charges. Considering the evidence of P.Ws.1 to 10 and Exs.P1 to P16, convicted the accused for the offence under Section 304(A) I.P.C. (4 counts) and sentenced him as stated above, against which, the accused preferred an appeal in C.A.No.290/2008. The learned Additional District Judge after considering the arguments advanced by both sides, confirmed the judgment of conviction and sentence passed by the trial Court, against which, the present revision has been preferred by the accused. 4.Challenging the conviction and sentence passed by both the Courts below, the learned counsel for the petitioner submitted the following points for consideration: (1) P.W.1-Suresh is not an eye-witness. (2) Ex.P1 complaint is concocted one. (3) Omni van driver alone responsible for the accident. (4)Post-mortem certificates were marked as Exs.P12 to P15, but the doctors, who conducted autopsy were not examined and the procedure under Section 294 Cr.P.C. has not been followed. Since the accused alone responsible for death was not proved, the offence under Section 304(A) has not been made out. Hence he prayed for setting aside the judgment of conviction and sentence passed by both the Courts below. To substantiate his argument, he relied upon the decisions of this Court. 5.Refuting the same, the learned Government Advocate (Crl.side) submitted that P.W.1-Suresh is an eye-witness and his evidence has clearly proved that the revision petitioner/accused alone drove the vehicle in a rash and negligent manner and dashed against the Maruthi van, which resulted to fatal injuries of four persons. Since four persons were died on the spot itself, the accused alone was responsible for their death. So non following of the procedure under Section 294 Cr.P.C. is not fatal to the case of the prosecution. To substantiate his argument, he relied upon the decision of this Court and submitted that once the document has been marked, it is a substantial piece of evidence that can be looked into. Here, no dispute in respect of identity of the accused. Both the courts below have considered all the aspects in a proper perspective and came to the correct conclusion that the revision petitioner was guilty for the offence under Section 304(A) I.P.C. Hence he prayed for dismissal of the revision. 6.Considered the submissions made on both sides as well as the materials available on record. 7.On 22.08.2003, at about 3.00 to 3.30 p.m., the accident was occurred. The vehicles involved in the accident and identity of the accused are not disputed, Ex.P16-trip sheet has proved the same. The only point is to be decided whether P.W.1-Suresh is an eye-witness?. https://hcservices.ecourts.gov.in/hcservices/ It is true that P.W.5-Periathambi and P.W.8-Jeeva were examined as eye-witnesses, but they turned hostile. Now this Court has to consider whether the evidence of P.W.1 is trustworthy. 8.It is true, P.W.1 is none other than the friend of one Arun, who is son of deceased Kamalam. In his cross-examination, he fairly conceded that Arun, son of deceased Kamalam, is his friend. In his chief-examination, he stated that the lorry was proceeding on wrong side and dashed against the omni van. At this juncture, it is appropriate to consider Ex.P5 F.I.R. In the F.I.R, it was specifically mentioned that on 22.08.2003, at 15.45 hours, P.W.9- Duraisamy, Sub-Inspector of Police has received the information from one Subramani in respect of the said accident. Then he gone to the place of occurrence and recorded the complaint from P.W.1-Suresh, who was an eye-witness. In such circumstances, I do not find any illegality in registering the case for the offence under Sections 279 and 304(A) I.P.C. P.W.9 received information that the accident has been occurred near Chengapalli Karupparayan temple, on collision of maruthi van and lorry and the inmates of van were died and there was a traffic jam in that place. On considering the same, I am of the view that Ex.P1 complaint and Ex.P5 F.I.R. are not hit by any illegality or irregularity. 9.Considering the oral evidence of P.W.1, when he drove the vehicle in the speed of 60 to 70 kms, the said Omni van overtook his vehicle. The learned counsel for the petitioner submitted that P.W.1 himself admitted that he drove the vehicle in the speed of 60 to 70 kms, but the omni van overtook his vehicle and proceeding in front of his vehicle and met with an accident. It shows that omni van has gone on wrong side at high speed, while overtaking the T.V.S.50, which was driven by P.W.1, certainly the omni van was driven at the speed of more than 70 kms. So the accident has been occurred only due to rash and negligent driving of the driver of the omni van. P.W.1 in his cross-examination, he stated as " tpgj;Jf;Fs;shd Mk;dpntd; rpwpJ neuj;jpw;F Kd;dhy; v';fis fle;J brd;wJ/ ehd; Rkhh; 60. 70 fp/kP/ ntfj;jpy; brd;nwd;/" 10.At this juncture, it is appropriate to consider Ex.P8 rough sketch, wherein it was stated that the accident has been occurred on the southern side of the road, but whereas in the complaint itself, it was stated that the accident has been occurred near Chengapalli Karupparayan temple, which was situated only on northern side of the road and the bodies of the deceased also laid down there. At this juncture, it is appropriate to consider the evidence of P.W.10- Inspector of Police, who fairly conceded that before he visited the place of occurrence, both the vehicles and the dead bodies were removed from the place. So this Court ought to have accepted that the arguments advanced by the learned counsel for the petitioner that Ex.P8 rough sketch has not been drawn on the basis of the evidence. https://hcservices.ecourts.gov.in/hcservices/ 11.At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the petitioner reported in 1985 Crl.L.W. 30 (S.K.Grover v. Chandra Prakash and another), in paragraph-3, it was held as follows: "3. .. .. an important element of evidence to determine the criminal liability, if any, is to find out the result of the accident, the respective places of the vehicles, the traces on the road, the damages caused to the vehicle and also the places where the victims of the accident were found, etc. All these are very valuable pieces of information wherefrom the causes of the accident, or atleast the mistakes of the respective drivers, can be inferred. .. .." Considering the above citation, not only on the basis of the eye witness and information, since it is a head on collision of two vehicles, the respective places of the vehicles, the trees on the road, the damages caused to the vehicles and the places, where the victims of the accident were found, etc. are necessary. 12.As per the evidence of P.W.10, it was specifically mentioned that after inspecting the place, he prepared Ex.P2 observation mahazar and drew Ex.P8 rough sketch. Before he reached the place of occurrence for inspection, the vehicles were removed and the bodies were also removed from the place of occurrence. Furthermore, there was no skid marks in the place of occurrence. In such circumstances, considering the above citation, this Court is forced to reject Ex.P8 rough sketch, because it has not been prepared on the basis of the accident occurred. 13.In Ex.P2 observation mahazar, it was stated that the bodies were placed on the northern side near Chengapalli Karupparayan temple, but whereas in Ex.P8 rough sketch, it has been shown that bodies were placed on the southern side. Admittedly, P.W.1 in his cross-examination, he fairly conceded that Arun, who is son of deceased Kamalam, is his friend. P.W.1 has also not informed the police about the accident. After police reached the place of occurrence only, he gave the complaint. On the basis of the evidence of P.W.1, P.W.10 drew the rough sketch. P.W.1 stated that when he drove his T.V.S.50 in the speed of 60 to 70 kms., the omni van overtook his vehicle and thereafter, the accident was occurred. It is possible that omni van proceeding from east to west, while overtaking the two wheeler, which was driven by PW1 and gone on wrong side and dashed against the vehicle, which was coming from west to east (i.e.) the lorry driven by the revision petitioner/accused. 14.At this juncture, it is appropriate to consider the damages caused by both the vehicles. Admittedly, omni van front portion has been fully damaged. So P.W.7-Motor Vehicles Inspector was not in a position to verify the brake system, but whereas the lorry was not https://hcservices.ecourts.gov.in/hcservices/ having any mechanical fault or defect. It is appropriate on the part of the Court to consider Ex.P4 Motor Vehicles Inspector's Report, in that it was specifically mentioned that roof, door, rear door, dicky, dash board and both the head lights of the omni van were damaged. Considering the damages mentioned in Ex.P4, I am of the view that omni van driver alone drove the vehicle in a rash and negligent manner and gone on wrong side and dashed against the lorry. So the lorry has only a slight damage, but whereas the omni van has heavy damage. In such circumstances, I am of the view that omni van driver alone drove the vehicle in a rash and negligent manner and overtook the two wheeler driven by P.W.1 and gone on wrong side, dashed against the lorry, which resulted into fatal injuries of four persons. Even though prosecution has filed Ex.P8 rough sketch, it has not been prepared before the vehicle and bodies were removed from the scene of occurrence. As per the evidence of investigating agency, the accident has been occurred only in the middle of the road. P.W.1 in his evidence stated that there was a traffic jam, after the accident. Considering the same, I am of the view that prosecution has not proved that the accident has been occurred due to rash and negligent driving of the lorry driver/the revision petitioner herein, since P.W.8-Jeeva, who was the pillion rider travelling with P.W.1, is turned hostile and P.W.5-Periathambi, who was an eye-witness, is turned hostile. So it is unsafe to convict the accused solely on the basis of the evidence of P.W.1, who is friend of Arun, who is son of one of the deceased Kamalam. So while considering the evidence of P.W.1 in his chief and cross-examinations, he stated that omni van overtook his vehicle and then only it met with an accident. In such circumstances, I am of the view that the prosecution has not proved the guilt of the accused for the offence under Section 304A I.P.C. beyond reasonable doubt. Hence benefit of doubt has given in favour of the revision petitioner/accused, the petitioner is entitled to acquittal. 15.In fine, • The criminal revision is allowed. • The conviction and sentence passed by both the Courts below are hereby set aside. • Bail bond executed by the revision petitioner/accused, if any, shall stand cancelled. • Fine amount, if any, paid by the accused is ordered to be refunded. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar kj https://hcservices.ecourts.gov.in/hcservices/ To 1.The Additional District cum Fast Track Court Judge No.I Erode. 2.The District Munsif cum Judicial Magistrate Perunthurai. 3.Inspector of Police Perunthurai Police Station. 4.The Public Prosecutor High Court, Madras. 5.The Record Keeper Criminal Section, High Court, Madras. 1 cc To Mr.A.Thiyagarajan, Advocate, SR.38312 judgment in CRL.R.C.No. 1118 of 2009 VS (CO) RH (14.7.11) https://hcservices.ecourts.gov.in/hcservices/