BAIL SLIP The Petitioner/Accused namely Ponnusamy was directed to be released on bail as per order of this court dated 24.3.08 in MP No.1 of 2008 in Crl RC 425 of 2008 by the Hon'ble Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.02.2010 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.No.425 of 2008 Ponnusamy ... Petitioner/Accused Vs. State Rep. by The Inspector of Police R2 Perur Police Station Coimbatore ... Respondent/Complainant This Criminal Revision Case has been filed under Section 397 read with Section 401 of Criminal Procedure Code as against the judgment and conviction dated 04.03.2008 passed in Cr.A.No.423/2007 on the file of the Principal District and Sessions Judge, Coimbatore confirming the judgment and conviction dated 31.08.2007 in C.C.No.44/2006 and set aside the same. For Appellant : Mr.V.Thillaisamy For Respondent : Mr.A.Saravanan, Govt. Advocate (Crl.Side) J U D G M E N T As against the concurrent findings of the court below holding the petitioner/accused guilty of the offences punishable under sections 279 and 304-A IPC and the conviction of the petitioner for the said offences by the trial court, which has been confirmed by the lower appellate court, the present Criminal Revision Case has been filed. 2. The petitioner stood charged and was prosecuted before the learned VIII Judicial Magistrate, Coimbatore in C.C.No.44/2006 for offences punishable under sections 279 and 304-A in connection with a road accident that took place on 05.01.2006 at about 7.30 p.m in front of EB office on Mathampatti - Karadipalayam Road https://hcservices.ecourts.gov.in/hcservices/ resulting in the death of one Chinnan @ Chinnasamy on the spot and injury to P.W.2-Bhaskaran. According to the prosecution case, while P.W.2-Bhaskaran was proceeding in the said road in a bicycle, the petitioner/accused came there driving the mini door auto bearing Regn.No.TN-37 AD-1897 in a rash and negligent manner and hit P.W.2 from behind and after hitting P.W.2, the said vehicle proceeded further and dashed against the deceased Chinnan @ Chinnasamy, a pedestrian going in front of P.W.2. It is the further case of the prosecution that the said Chinnan @ Chinnasamy, who was hit by the above said vehicle, sustained head injuries and died on the spot. 3. A case was registered as Cr.No.5/2006 on the file of R2, Perur police station, Coimbatore and after investigation, a final report was submitted on the file of the VIII Judicial Magistrate, Coimbatore alleging commission of offences punishable under sections 279 and 304-A IPC on the part of the petitioner herein/accused. After necessary charges were framed, the trial court proceeded with the trial, as the petitioner/accused pleaded not guilty. As many as twelve witnesses were examined and seven documents were marked on the side of the prosecution in order to substantiate the charges framed against the petitioner/accused. 4. At the conclusion of trial, the trial judge, namely learned VIII Judicial Magistrate, Coimbatore, on an appreciation of evidence, came to the conclusion that both the charges framed against the petitioner herein/accused were proved beyond reasonable doubt, held the petitioner herein/accused to be guilty of the said offences, convicted him for the said offences and sentenced him to undergo one month simple imprisonment for the offence punishable under section 279 and six months simple imprisonment for the offence punishable under section 304-A. It was also ordered that both the sentences would run concurrently. 5. As against the conviction and sentence, the petitioner herein/accused preferred an appeal in Crl.A.No.423/2007 before the Sessions Court, Coimbatore which came to be disposed of by the learned Principal Sessions Judge, Coimbatore by his judgment dated 04.03.2008 confirming the conviction and sentence. Questioning the correctness and legality of the same, the petitioner has brought- forth this Criminal Revision Case on various grounds set out in the Memorandum of Criminal Revision Petition. 6. Mr.V.Thillaisamy, learned counsel for the petitioner, advancing arguments on behalf of the petitioner, submitted that the trial court as well as the lower appellate court committed an error in relying on the testimonies of P.Ws.1 and 2, the alleged eye witnesses, despite the fact that P.W.1 happened to be an interested witness, as he was related to the owner of the vehicle involved in the accident and P.W.2 could not be an eye witness for the accident caused to the deceased Chinnan @ Chinnasamy. It is the further contention of the learned counsel for the petitioner that the courts below should have eschewed the evidence of P.Ws.1 and 2, the former as the testimony of an interested witness and the latter as https://hcservices.ecourts.gov.in/hcservices/ hearsay evidence and that divorced of evidence of testimonies of P.Ws.1 and 2, there is no other evidence to prove the charges framed against the petitioner/accused. It is also the contention of the learned counsel for the petitioner that though P.Ws.1 and 2 spoke about the fact of the vehicle driven by the petitioner hitting P.W.2 and the deceased, they failed to state in clear terms that there was either negligence or rashness on the part of the petitioner in driving the said vehicle and that therefore, the conviction recorded by the trial court and confirmed by the lower appellate court should be held erroneous and legally unsustainable. 7. This court also heard the submissions made by Mr.A.Saravanan, learned Government Advocate (Crl.Side) representing the respondent/State on the above said submissions made by the learned counsel for the petitioner. The learned Government Advocate (Crl.Side) would submit that on a proper appreciation of evidence, the courts below arrived at a correct conclusion and convicted the accused for the offences with which they stood charged and that there is no scope for interference in this revision case, since either the conviction or the sentence cannot be termed defective or infirm. It is also the contention of the learned Government Advocate (Crl.Side) that the punishment imposed for the charges proved cannot be termed excessive. The materials available on record were also perused. 8. The first and foremost contention raised by the learned counsel for the petitioner is that the courts below did not properly appreciate the evidentiary value of the testimony of P.W.1, who according to the petitioner, was an interested witness. In support of the contention of the petitioner that P.W.1 was an interested witness, the learned counsel for the petitioner drew the attention of the court to the answers given by the said witness in his cross-examination to the effect that the owner of the vehicle involved in the accident was known to him. This court is not in a position to accept the submission made by the learned counsel for the petitioner that a person who is known to the owner of the vehicle involved in the accident shall be interested in seeing that the driver of the vehicle is convicted in a criminal case registered for the accident caused by such vehicle. In fact a person, who is interested in the owner of the vehicle, shall be interested in seeing that the owner is absolved of any liability in relation to the accident, either criminal or civil. The position will be different if he is inimically disposed towards the owner of the vehicle and interested in the victims or the dependents of the victims. It is not the case of the petitioner that P.W.1 was either related to or a friend of the deceased. It is also not the case of the petitioner that he was either related to or a friend of P.W.2 so that it may be possible for the petitioner to contend that P.W.1 might have deposed against the truth to help the dependents of the deceased and P.W.2 (injured) to claim compensation. The mere fact that P.W.1 happened to be a person known to the owner of the offending vehicle, shall not be enough to hold him to be an interested witness. Even the testimony of a relative or a friend cannot be rejected straight away on the sole ground that such https://hcservices.ecourts.gov.in/hcservices/ witness shall be an interested witness. In such an event, the testimony of such witness shall be put to the test of careful scrutiny to decide the reliability of his testimony. 9. In this case, there is no such necessity to put the testimony of P.W.1 to the test of careful scrutiny as in the case of other interested witnesses, since it has not been proved, not even suggested that he was interested in the deceased or injured. Even if such test is applied to the evidence of P.W.1, the result will be that there is no material to reject his evidence as unbelievable or unreliable. Therefore, the contention of the petitioner that the courts below ought not to have relied on the evidence of P.W.1 for the proof of the charges framed against the petitioner has got to be discountenanced. 10. The next contention of the learned counsel for the petitioner is that though the evidence of P.W.2 up to the moment he was hit by the offending vehicle would be termed direct evidence, the next part of his evidence, namely the accident caused to the deceased leading to his death was nothing but hearsay and hence should have been eschewed from consideration by the courts below. In support of his contention, the learned counsel for the petitioner, relied on the answers given by P.W.2 during cross- examination to the effect that at the time of treatment he informed the doctor that he fell down from the cycle and that he was informed that the deceased was proceeding towards north and he did not see the same. The above said answers were elicited only for the purpose of contradicting P.W.2. The mere fact that P.W.2 informed the Medical Officer at the time of treatment that he fell down from the cycle and thus sustained injuries cannot be taken as a statement ruling out the accident involving another vehicle. Even if the said statement can be interpreted in such a way that the information given to the doctor was that he fell down from the bicycle simplicitor, the same shall not be a conclusive proof that the facts spoken to by P.W.2 regarding the accident could not be true. It is not the case of the petitioner that no such accident took place or that P.W.2 was not the one who got injured in the accident. On the contrary, it is admitted by the petitioner that there was an accident which lead to the injuries sustained by P.W.2 and the death of the deceased Chinnan @ Chinnasamy. However, the petitioner would claim that there was no rash and negligent driving, which resulted in the said accident. When such is the case of the petitioner, the above said admission made by P.W.2 in the cross examination loses significance. The position will be different if the petitioner has taken a stand that P.W.2 was not the one injured in the accident and he was introduced by the prosecution as an eye witness. 11. P.W.2 has given clear and cogent evidence to the effect that while he was proceeding in his bicycle, the mini door auto driven by the petitioner came at a high speed and hit him from behind, as a result of which he fell down from the cycle and sustained injuries for which he was given treatment. P.W.2 has also stated in clear terms that after hitting him, the mini door https://hcservices.ecourts.gov.in/hcservices/ auto did not stop but proceeded further and dashed against the deceased Chinnan @ Chinnasamy who was proceeding in front of him. Even though there is admission in the cross-examination that he did not see the said part of the occurrence directly and he heard of the same, the same shall be admissible as Res gestae or at least as a corroborating piece of evidence to support the testimony of P.W.1, the eye witness. 12. P.W.1 in categorical terms has given a vivid description of the accident and he has given details of how the accident took place. According to his testimony he saw the offending vehicle coming at a high speed and hitting the cyclist (P.W.2) and then the pedestrian (deceased Chinnan @ Chinnasamy) and thereafter drifting towards the nearby bush. The nature of accident as described by P.W.1, as rightly pointed out by the learned Government Advocate (Crl.Side), will be enough to arrive at a conclusion that the vehicle was driven rashly and negligently, as a result of which the accident took place. The witnesses cannot be expected to mention the legal terminology while speaking the plain facts relating to the accident. It is for the court to decide based on such evidence whether the act of rash and negligence on the part of the petitioner was established or not. The courts below, on an appreciation of evidence, have arrived at a correct conclusion that the rash and negligent act on the part of the petitioner was proved beyond reasonable doubt. There is no scope, whatsoever, to hold the same to be either defective or infirm warranting interference in this criminal revision case. 13. The learned counsel for the petitioner, as an alternate argument submitted that the punishment awarded by the trial court and confirmed by the appellate court was harsh and it would be just and necessary to reduce the sentence. The learned Government Advocate (Crl.Side) contended that the trial court itself had shown leniency in the matter of punishment and no further leniency need be shown in this criminal revision case. The petitioner has been sentenced to undergo simple imprisonment for one month and simple imprisonment for six months for the offences punishable under sections 279 and 304-A respectively by the trial court. Both the sentences were ordered to run concurrently. The same was confirmed by the lower appellate court. Punishment prescribed for an offence punishable under section 279 IPC is imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Punishment prescribed for an offence punishable under Section 304-A IPC is imprisonment of either description for a term which may extend to two years, or with fine, or with both. As against the said punishments prescribed, the trial court has chosen to award imprisonment for one month and six months respectively for offences punishable under Sections 279 and 304-A. The said punishment cannot be stated to be harsh or excessive. Therefore, this court comes to the conclusion that there is no scope for interference with the sentence also. 14. For all the reasons stated above, this court comes to https://hcservices.ecourts.gov.in/hcservices/ the conclusion that the Criminal Revision Case fails and accordingly the Criminal Revision Case is dismissed. 15. The petitioner/accused is on bail. The bail bond executed by him shall stand cancelled forthwith and the learned Principal District and Sessions Judge, Coimbatore is directed to take steps to secure the presence of the appellant/accused and commit him to jail to undergo the remaining period of sentence. The period of sentence already undergone by him shall be given set off. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. To 1. The Principal District Sessions Judge, Coimbatore 2. The VIII Judicial Magistrate, Coimbatore 3. The Chief Judicial Magistrate, Coimbatore 4. The Public Prosecutor, High Court, Madras. 5. The Inspector of Police, R2 Perur Police Station Coimbatore Copy to The Section Officer, Criminal Section, High Court, Madras. + 1 cc to Mr.V.Thillaisamy, Advocate Sr 11115 Order in Crl.R.C.No.425/2008 NSM (CO) RH (24.3.10) https://hcservices.ecourts.gov.in/hcservices/