Crl.R.C.No.1042/2007 The petitioner accused in Thangaraj was directed to the released in bail as per the order of this court dated 16.7.2007 and made in M.P.No. 1 of 2007 in Crl RC No.1042/07. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 17.08.2009 CORAM THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM Criminal Revision Petition No.1042 of 2007 Thangaraj ..Petitioner (Accused) Versus The State represented by The Inspector of Police Chennimalai Police Station Crime No.181 of 2003 Erode District. ..Respondent (Complainant) Petition filed under Sections 379 and 401 of Cr.P.C against the order passed in C.A.No.334 of 2006, on the file of the Principal Sessions Judge, Erode, dated 10.07.2007, confirming the conviction and reducing the sentence imposed in the Judgment dated 15.11.2006 made C.C.No.331 of 2003, on the file of the District Munsif cum Judicial Magistrate, Perundurai. For petitioner : Mr.N.Manokaran For Respondent : Mr.J.C.Durai Raj Government Advocate (Criminal side) ORDER The revision petitioner stands convicted for the offence under Section 304-A and 279 IPC, by the learned Judicial Magistrate, Perundurai, in C.C.No.331 of 2003 and he was sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.5000/- in default to undergo six months rigorous imprisonment under Section 304-A IPC and no separate sentence was imposed under Section 279 IPC. The said conviction was confirmed by the learned Principal Sessions Judge, Erode and sentence of imprisonment alone was reduced to six months rigorous imprisonment. Aggrieved by the said conviction and sentence, the petitioner has preferred this criminal revision. 2. The case of the prosecution is that on 17.07.2003 at about https://hcservices.ecourts.gov.in/hcservices/ 5.45a.m., the deceased was driving his bi-cycle on the Chennimalai to Uthukuli road near Gandhi Nagar from west to east. At that time, the lorry bearing registration No.TN 33-E-2889, being driven by the accused, came in the opposite direction rashly and dashed against the cyclist. The deceased fell down and sustained injuries on the right side head, right side shoulder and right side eye-brow. He was admitted in the hospital and surgery was also conducted. In spite of treatment, he died in the hospital on 27.08.2003. P.Ws.1,2 and 7 are the eye-witnesses to the occurrence. P.W.5 Doctor who had conducted the post mortem on the deceased found that the deceased had died due to head injury. 3. P.W.9 is the Sub Inspector of Police, who received the report, Ex.P.1 from P.W.1, registered the case in Crime No.181 of 2003 and prepared Ex.P.5 First Information Report. He examined the witnesses and after completing the investigation, filed the final report. 4. The prosecution has examined ten witnesses and marked eight exhibits. After examination of the witnesses, the accused was questioned under Section 313 Cr.P.C and the accused denied his complicity. The Trial Court after considering the evidence, convicted the accused and the appellate Court also confirmed the conviction. 5. The learned counsel for the petitioner submits that the deceased was aged 55 at that time of occurrence and as the deceased fell down from the vehicle, the accident had occurred. Though the occurrence had taken place at 5.45a.m., complaint was given by P.W.1 only at 1.30p.m. The learned counsel for the petitioner further submits that the accused is aged only 36 and he has one son and he has to look after his family and the learned Judge has not questioned the accused before sentencing him to imprisonment and therefore learned counsel for the petitioner prayed for some leniency. 6. The learned Government Advocate(Criminal side) submits that P.W.1, 2 and 7 are eye witnesses to the occurrence and they have clearly spoken about the rash driving of the accused and the manner in which the accident had taken place. 7. This Court considered the submissions made by both parties and perused the records. 8. P.W.1, who is the brother of the deceased, deposed that the deceased was going in a cycle on the left side of the road and the lorry came in the opposite direction in a rash and negligent manner and dashed against the deceased. Though it was suggested by the accused that the deceased slipped and fell down from the bicycle, it was categorically denied by the eye witnesses. There is no material to support the version of the defence, and therefore the finding of https://hcservices.ecourts.gov.in/hcservices/ the courts below is only to be confirmed. 9. The Trial Court sentenced the accused for a period of one year imprisonment and to pay a fine of Rs.5000/- under Section 304- A IPC and the appellate Court has only reduced the sentence of imprisonment for a period of six months. The appellate Court reduced the sentence based on the submission of the learned counsel for the appellant that the accused was 36 years at the time of occurrence and he is the only breadwinner of the family. 10. This Court on a perusal of the original records, does not find any record to show that the accused was haerd on the question of sentence, as per the provision of Section 235 Cr.P.C. 11. Section 235 Cr.P.C reads as follows: "235.Judgment of acquittal or conviction:- (1) After hearing arguments and points of law (if any), the Judges shall give a judgment in the case. (2) If the accused is convicted, the Judge, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law." 12. Though the learned Magistrate has failed to hear the accused on the question of sentence, the appellate Court heard the learned counsel for the appellant on the question of sentence. The learned counsel for the petitioner submits that the petitioner had been in prison for more than 37 days. 13. Considering the facts and circumstances of the case and also the fact that the accident had taken place in the year 2003, now more than six years had elapsed and the petitioner had already been in prison for a period of 37 days, while confirming the conviction for the offence under Sections 304-A and 279 IPC, the sentence of imprisonment alone is reduced to the period already undergone. Instead the petitioner is directed to pay additional fine of Rs.5000/- in default to undergo simple imprisonment for a period of three months. 14. The petitioner is directed to pay the fine amount within a period of four weeks from the date of receipt of a copy of the Judgment. The revision is partly allowed. ksr. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.Principal Sessions Judge, Erode. 2. The District Munsif cum Judicial Magistrate Perundurai. 3. -do- through The Chief Judicial Magistrate, Erode. 4. The Superintendent, Central Prison Coimbaore. 5.The Inspector of Police Chennimalai Police Station Crime No.181 of 2003 Erode District. 6. The public Prosecutor, High Court Madras. 7. The Section Officer, Criminal Section High Court Madras. 8. The Director General of police, Erode. 9. The District Collector, Erode. + 1 CC to Mr. N.Manokaran Advocate (SR.NO. 39036) Crl.R.C.No.1042 of 2007 JRG(CO) VC (09.09.2009) https://hcservices.ecourts.gov.in/hcservices/