IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.11.2010 CORAM THE HONOURABLE MR. JUSTICE T.SUDANTHIRAM CRL.RC.No.1688/2007 P.Rajan .. Petitioner/Accused Versus State by Inspector of Police, Vennandur Police Station, Namakkal District. .. Respondent/Complainant Revision filed u/s.397 read with 401 Cr.P.C., against the conviction and sentence passed by the Principal District Judge, Namakkal, Namakkal District dated 02.11.2007 made in Crl.A.No.60 of 2007 confirming the conviction and sentence passed by the Judicial Magistrate, Rasipuram, Namakkal District dated 01.06.2007 made in C.C.No.349 of 2005. For Petitioner : Mr.S.Senthilnathan For Respondent : Mr.A.Saravanan Govt. Advocate (Crl.side) ORDER The revision petitioner is an accused in C.C.No.349/2005 on the file of the learned Judicial Magistrate, Rasipuram and he has been convicted for the offence u/s.304(A) and 279 of IPC and sentenced to undergo one year simple imprisonment and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for 3 months for the offence u/s 304(A) IPC and further sentenced to pay a fine of Rs.900/- in default to undergo simple imprisonment for 9 weeks for the offence u/s 279 IPC. The said conviction and sentence were confirmed by the learned Principal District Sessions Judge, Namakkal in Crl.A.No.60/2007. Challenging the said conviction and sentence, the petitioner has preferred this criminal revision. 2.The case of the prosecution in brief is that on the date of occurrence, the deceased and his brother PW1 were going on the road, each one in a separate bicycle. On Namakkal – Salem main road, near Malur, the Government Transport Corporation Bus driven by the accused came in a high speed and dashed on the bicycle in which the deceased https://hcservices.ecourts.gov.in/hcservices/ was riding. The deceased fell down and died on the spot. The driver, after stopping the bus had run away from the scene of occurrence. PW1 gave a complaint to the police about the accident. In order to establish the case, the prosecution examined PW1 to PW11 and marked Exs.1 to 7. The accused was questioned under Section 313 of Cr.PC and he had denied his complexity and not examined any defence witness. Both the Trial Court and the Appellate Court found the accused guilty. 3.The learned counsel appearing for the petitioner Mr.S.Senthilnathan submitted that the witnesses to the occurrence do not speak about the rash and negligent driving of the accused and mere fact that the bus came in high speed would not amount to rash and negligent driving. The learned counsel further submitted that though M.V. Inspector's report Ex.P7 is marked, the m.v. Inspector has not been examined by the prosecution which amounts to serious infirmity in the prosecution case. The learned counsel also relied upon the decision of the Supreme Court reported in 1998 SCC (Cr) 1508 [State of Karnataka Vs. Satish]. 4. Per contra, the learned Government Advocate [Crl.side] submitted that the evidence of PW1 would show that the accused drove the vehicle in a high speed and dashed against the accused and his evidence is corroborated by the evidence of other eye-witnesses, PW3 and PW4. The learned Govt. Advocate [crl.side] further submitted that the accused has not taken any specific plea that the accident was due to mechanical defect and as such non-examination of M.V. Inspector would not affect the case of the prosecution. The learned Govt. Advocate [Crl.side] also relied upon the decision of this Hon'ble Court reported in CDJ 2009 MHC 2570 [K.K.Mani v. The State rep.by the Sub Inspector of Police] . 5. This court considered the submissions and perused the records. 6. PW1, 3 and 4 are eye-witnesses to the case. PW1 is the brother of the deceased. According to PW1, he was going in a bicycle following the deceased who was also going in a bicycle. According to PW1, the transport bus came in a very high speed and dashed against the deceased. In the cross examination, it is also elicited that the driver of the bus was not hooting the horn. This evidence of PW1 would show that the accused drove the vehicle in a rash and negligent manner. Though the high speed is not the criteria, depending upon the facts and circumstances of the case, from the high speed of the vehicle, it could also be said that the driver drove the vehicle with rashness. 7. In this case, the M.V. Inspector's report is marked as Ex.P7. The M.V. Inspector has not been examined. In the decision of the Hon'ble Supreme Court reported in 1998 SCC (Cr) 1508 [State of https://hcservices.ecourts.gov.in/hcservices/ Karnataka V. Satish] it was concluded by the Hon'ble Supreme Court that there was evidence to show that immediately before the vehicle turned turtle, there was a big jerk and it was not explained as to whether the jerk was because of the uneven road or mechanical failure. In the said circumstances, the Supreme Court observed that the M.V. Inspector who inspected the vehicle had given a report and the report was not forthcoming and the inspector was also not examined and it was a serious infirmity in the prosecution case. But in the case in hand, though the M.V. Inspector has not been examined, the report had been filed as Ex.P7. Further, it is not the plea of the accused that there was a mechanical defect in the vehicle. As per Ex.P7, there was no mechanical fault in the vehicle. This Hon'ble High Court has observed in the decision reported in CDJ 2009 MHC 2570 [K.K.Mani v. The State rep.by the Sub Inspector of Police] in Para 29 as follows - 29. It is not the case of the accused that the accident occurred due to mechanical defect in the vehicle. In the decision of this Court reported in 1995-2-LW (Crl.) 493, the learned Judge took into account the fact that the offending vehicle ran amuck and in fact it ran down the road around 30 feet northern side of the road. In such circumstances, the learned Judge of this court expected the evidence of the Motor Vehicles Inspector, which was missing in that case. But here, absolutely, there is not even any suggestion during cross examination or any statement made under Section 313 of the Code of Criminal Procedure to the effect that the accident occurred due to the mechanical defect in the bus. Hence, non-examination of the Motor Vehicle Inspector in this case is not fatal to the case of the prosecution. At this juncture, I would like to make it clear that in this case ocular evidence is clear relating to the rash and negligent act of the accused in driving the bus as held supra. 8. For the above reason, the contention of the learned counsel that non-examination of the M.V. Inspector affects the prosecution case is only to reject. Conviction on the revision petitioner is confirmed. 9. The learned counsel for the petitioner submitted that the accused has already been imprisoned for 9 months and prayed for leniency. Considering the facts and circumstances of the case and the occurrence took place nearly about six years back, the sentence of imprisonment period imposed on the petitioner for the offence u/s. 304 (A) IPC is reduced to the period of imprisonment already undergone by him. Instead, he is sentenced to pay an additional fine of Rs.2,000/- and in default of payment sentenced to undergo simple imprisonment for three months. The revision petitioner is directed https://hcservices.ecourts.gov.in/hcservices/ to pay the additional fine amount before the trial Court within a period of four weeks from the date of receipt of a copy of this order. 10. Except the above modification regarding the sentence imposed on the petitioner, the revision petition is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rgr To 1.The Principal District Judge, Namakkal, Namakkal District 2.The Judicial Magistrate Rasipuram, Namakkal District. 3.The Public Prosecutor High Court, Madras. 4. The Judicial Magistrate, Rasipuram, Namakkal District. 5. The Chief Judicial Magistrate, Namakkal 1 cc To Mr.S.Senthilnathan, Advocate, SR.79498 CRL.RC.No.1688/2007 TRM (CO) RH (26.11.10) https://hcservices.ecourts.gov.in/hcservices/