BAIL SLIP The appellant/Accused viz., V.Murugesan, was directed to be released on bail in and by order of this Court dt.18.2.2003 and made in Crl.M.P.No.1550/03. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.02.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.43 of 2003 V.Murugesan .. Appellant/Accused Vs. State by Inspector of Police, B.2 Esplanade Police Station, Chennai. .. Respondent/Complainant Criminal Appeal against the judgment dated 20.12.2002 in S.C.No.375 of 1999 on the file of the VI Additional Sessions Court, Chennai. For appellant : Mr.M.Palanimuthu, Amicus Curiae. For respondent: Mr.I.Paul Noble Devakumar, Govt. Advocate (Crl. Side) ORDER The Criminal Appeal arises out of the judgment of conviction and sentence passed by VI Additional Sessions Court, Chennai, on 20.12.2002 in S.C.No.375 of 1999, convicting the appellant- accused for the offence under Section 304 (Part-2) IPC and sentencing him to undergo rigorous imprisonment for three years and also imposing a fine of Rs.3,000/-, in default, to undergo rigorous imprisonment for three months. 2. The case of the prosecution is as follows: (a) On the fateful day, i.e. on 22.10.1998 at about 11.30 p.m., when P.W.1 Gopinath, P.W.2 Jayaprakash and the deceased Sivamani, boarded the relative of the deceased Sivamani to Vellore in Gudiyatham Bus, the deceased Sivamani found that his purse containing Rs.1,300/- was pick-pocketed by somebody. They have been searching for the purse in Esplanade Bus Stand, Chennai, by getting into each and every bus. https://hcservices.ecourts.gov.in/hcservices/ (b) At that time, when the deceased was climbing on the right rear side tyre, the persons who were taking bed on the roof-top of a bus, abused the deceased Sivamani as to whether he came for committing theft and picked up quarrel with him and they pushed him down from the roof-top of the bus. The deceased fell down on the floor and sustained injuries. (c) Immediately, P.Ws.1 and 2 took the deceased to Government General Hospital, Chennai. P.W.2 went to the house of the deceased Sivamani to give information. P.W.1 has given a complaint Ex.P-1 before P.W.11 Sub-Inspector of Police. He received the same at 1.15 a.m. on the same day and registered a case in Cr.No.2860 of 1998 for the offence under Section 338 IPC and prepared FIR Ex.P-7. (d) The deceased Sivamani was treated by P.W.8 Dr.Palaniappan. (e) P.Ws.3 and 4, who were the conductors of the bus and were taking bed on the roof-top of the bus, along with the accused, stated that there was no rest room facility in Esplanade Bus Stand and since there was no sanitary facility and the bus stand was not tidy, they were forced to take their bed on the roof-top of the bus. Nearly 70-80 buses were there on the bus stand and the drivers and conductors were taking their bed only on the roof-top of the buses to safeguard their collection amounts. P.Ws.3 and 4 turned hostile. (f) P.W.5 who is the father of the deceased Sivamani stated that he was informed about the incident by P.Ws.1 and 2. (g) P.W.11 Sub-Inspector of Police took up the matter for investigation and went to the place of occurrence and examined the witnesses. He prepared observation mahazar Ex.P-2 in the presence of one Pandian and P.W.6 Raja and drew rough sketch Ex.P-8. He recovered blood stained earth M.O.1 and ordinary earth M.O.2 under Ex.P-3 mahazar, in the presence of the same witnesses. (h) Then, P.W.11 Sub-Inspector of Police went to the hospital. Since Sivamani was in unconscious state of mind, in the presence of P.W.7 and another, he seized the shirt (M.O.3) of the deceased under mahazar Ex.P-4. (i) As the treatment failed, the deceased died on 27.10.1998 at 10.30 a.m. and Ex.P-5 is the death report issued by P.W.8 Doctor. That has been received by P.W.11 Sub-Inspector of Police and then he altered the case from one under Section 338 IPC to under Section 304-A IPC and the altered report is Ex.P-12. (j) P.W.11 Sub-Inspector of Police went to the Government General Hospital and conducted inquest in the presence of panchayatdars and prepared inquest report Ex.P-9. https://hcservices.ecourts.gov.in/hcservices/ (k) After the inquest was over, he gave a requisition to conduct autopsy. P.W.9 Dr.Selvakumar received the requisition from P.W.10 Police Constable and conducted autopsy. Ex.P-6 is the post-mortem certificate, in which the following injuries are indicated: "1. Surgical sutured wound on left fronto temporal region of scalp Craniotomy done on the above portion 2. Sub dural and sub arachnoid haemorrhage on the entire surface of brain. 3. Two burr-holes are seen on left side of vertex. HEART: Chambers contained fluid blood. Coronaries patent. LUNGS: congested. STOMACH: Empty Mucosa-pale BLADDER: Empty All other internal organs were found pale. OPINION: Died of effects of head injury." (l) After autopsy, P.W.10 Police Constable handed over the dead body of the deceased to his relatives. (m) P.W.11 Sub-Inspector of Police gave a requisition Ex.P- 10 to send the material objects for chemical examination. Ex.P-11 is the chemical analysis report. (n) P.W.12 Inspector of Police took up the matter for further investigation. He verified the records and concluded the investigation and filed the charge sheet against the accused for the offence under Section 304-A IPC. 3. The trial Court, after following the formalities, framed charge against the accused and the accused pleaded not guilty. During the course of trial, P.Ws.1 to 12 were examined, Exs.P-1 to P-12 were marked and M.Os.1 to 3 were produced. The trial Court questioned the accused under Section 313 Cr.P.C. posing the evidence incriminating against him and he denied the same. After considering the oral and documentary evidence, the trial Court convicted and sentenced the accused as indicated above. 4. Challenging the conviction and sentence passed by the trial Court, learned Amicus Curiae appearing for the appellant- accused submitted that there is no direct evidence for robing the accused in the commission of the offence. P.Ws.3 and 4 are the competent persons to speak about the incident and they were the conductors who were taking bed along with the accused and they have categorically stated that after the incident only, they came to know that one person has fallen down and the injured was taken to hospital. Moreover, P.Ws.1 and 2 are also not the eye- https://hcservices.ecourts.gov.in/hcservices/ witnesses and they have stated in their evidence that they climbed from the ladder to see as to who were taking bed on the roof-top of the bus, whereas, the deceased was climbing the bus on the rear right tyre. In such circumstances, the trial Court has not considered the evidence of P.Ws.1 and 2 in proper perspective. 5. Learned Amicus Curiae appearing for the appellant-accused further submitted that the accused is a driver, there is no motive and it is only accidental fall and the accused has not committed any offence. He prayed for setting aside the conviction and sentence passed by the trial Court and acquitting the accused. 6. Per contra, learned Government Advocate (Crl. Side) appearing for the respondent-Police would submit that P.Ws.1 and 2 have deposed that there was a wordy altercation between the accused and the deceased and then only, the deceased was pushed down and he sustained head injury. He died on 27.10.1998. So, without the intention and because of the wordy altercation, the occurrence has taken place and the trial Court has correctly held that the appellant-accused is guilty of the offence under Section 304 (Part-2) IPC and it does not warrant any interference. He prayed for dismissal of the Criminal Appeal. 7. This Court has to decide as to whether the conviction for the offence under Section 304 (Part-2) IPC is sustainable. Admittedly, P.Ws.1 and 2 accompanied the deceased Sivamani on the date of occurrence. They boarded Sivamani's relative in Gudiyatham bus and then only, they came to know that the deceased Sivamani's purse has been pick-pocketed and it contained Rs.1,300/- and so, they made a search. 8. This Court has to decide as to whether P.Ws.1 and 2 are the eye-witnesses. P.Ws.1 and 2 in their evidence have stated that they went for searching each and every bus and they entered the bus and witnessed nobody inside the bus and then they climbed the ladder on the rear side. They have deposed that the deceased was climbing the bus only on the right rear side of the tyre and somebody pushed down and the deceased fell down and sustained injuries. In such circumstances, there is no evidence to show that the accused alone has pushed down the deceased. 9. At this juncture, it is appropriate to consider the post- mortem certificate Ex.P-6 and the evidence of P.W.9 Doctor who conducted autopsy. It is pertinent to note that after the incident has taken place on 22.10.1998, the deceased was admitted in the hospital. But the accident register copy has not been produced before the Court. The only document available is Ex.P-6 post-mortem certificate and the evidence of P.W.9 Doctor, which show that the deceased has sustained head injury. In his cross examination P.W.9 Doctor fairly conceded that the injury is possible if any person falls down while climbing a bus. P.W.9 https://hcservices.ecourts.gov.in/hcservices/ Doctor in his evidence, in cross examination, has stated as follows: @xUth; g!; VWk;nghJ jtwp tpGe;jhYk; mj;jifa fhak; Vw;gl tha;g;g [z;L /////@ 10. So, I am of the opinion that the death of the deceased is not homicidal and it is accidental. P.Ws.1 and 2 have stated that the deceased was climbing on the right rear side tyre and during the night time, there was a possibility for falling down. P.Ws.1 and 2 never stated that the accused alone pushed down the deceased. In such circumstances, I am of the view that the prosecution has failed to prove that the death of the deceased is homicidal. But the death of the deceased is accidental. 11. Since the death of the deceased is accidental, it is worthwhile to consider the evidence of P.Ws.3 and 4 who are the conductors and who have taken the bed on the roof-top of the bus along with the accused. Both have cogently deposed before Court that when they are in the midst of sleeping, they heard the noise and then only they came to know that one person has fallen down and sustained head injury and that he made enquiry. P.W.11 Sub- Inspector of Police came there and took four persons, namely P.Ws.3 and 4 and the accused and another and retained the accused and set free others. In such circumstances, the version of the defence is possible. 12. It is well settled principle of law that if there are two versions, then the version favouring the accused has to be taken into consideration while deciding the criminal cases. 13. Considering the evidence of P.Ws.3 and 4 along with the evidence of P.Ws.1 and 2, even though P.W.1, in his Ex.P-1 complaint identified the accused by stating that a bald-head person pushed down the deceased, in his cross examination, P.W.1 stated that he does not know the persons who were on the roof- top of the bus and he does not know as to whether they were tall, short, bald-head, fair or black complexion, etc. While considering the evidence of P.Ws.1 and 2, it is not trustworthy. P.W.1 and P.W.2 have not stated that accused alone pushed down the deceased. 14. In the above circumstances, I am of the view that the death of the deceased is accidental and the accused is not guilty of the offence under Section 304 (Part-2) IPC. The conviction and sentence passed by the trial Court for the offence under Section 304 (Part-2) IPC, are liable to be set aside. 15. In the result, (a) the Criminal Appeal is allowed. https://hcservices.ecourts.gov.in/hcservices/ (b) The conviction and sentence passed by the trial Court on the appellant-accused for the offence under Section 304 (Part-2) IPC are set aside. (c) The bail bonds, if any executed by the appellant-accused shall stand cancelled. (d) The fine amount, if paid by the appellant-accused shall be refunded. 16. While appreciating the services rendered by the learned Amicus Curiae Mr.M.Palanimuthu, who appeared for the appellant- accused, this Court fixes his fees at Rs.3,000/- (Rupees three thousand only), to be paid by the Tamil Nadu State Legal Services Authority, High Court Buildings, Chennai-104. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar cs To 1. VI Additional Sessions Judge, Chennai. 2. -do- Thro The Principal Sessions Judge, Chennai. 3. The Inspector of Police, B.2 Esplanade Police Station, Chennai. 4. The Superintendent, Central Prison, Vellore. 5. The Public Prosecutor, High Court, Madras. 6. The Member Secretary, The Tamil Nadu State Legal Services Authority, High Court Buildings, Chennai-104. Crl.A.No.43 of 2003 VSV(CO) EM/3.3.10 https://hcservices.ecourts.gov.in/hcservices/