IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.06.2011 CORAM THE HONOURABLE MS. JUSTICE R.MALA CRL.R.C.No. 1006 of 2009 Thanigaimalai .. Petitioner/Accused ..Vs.. State rep. by Sub-Inspector of Police Keelpennathur Police Station Thiruvannamalai District. Cr.No.189/1999 .. Respondent/Complainant Prayer:- This Criminal Revision Case is filed under Sections 397 read with 401 of Cr.P.C., to set aside the judgment of conviction and sentence dated 15.09.2009, in Crl.A.No.41/2004, on the file of the Sessions Court, Thiruvannamalai, confirming the judgment of conviction and sentence dated 21.05.2004, in C.C.No.15/2000, on the file of Judicial Magistrate's Court No.II, Thiruvannamalai. For Petitioner : Mr.G.Rajan For Respondent : Mr.C.Emalias and Ms. M.F.Shabana Govt. Advocate (Crl. side) ORDER This criminal revision has been preferred against the judgment of conviction and sentence dated 15.09.2009, in Crl.A.No.41/2004, on the file of the Sessions Court, Thiruvannamalai, whereby the accused was convicted for the offence under Section 304(A) I.P.C. and sentenced him to undergo three months' rigourous imprisonment and to pay a fine of Rs.500/- in default in payment to undergo three months' simple imprisonment, confirming the judgment of conviction and sentence dated 21.05.2004, in C.C.No.15/2000, on the file of the Judicial Magistrate's Court No.II, Thiruvannamalai. 2.The case of the prosecution is as follows: (i)On 28.08.1999, at about 8.30 p.m., when P.W.1 Parasakthi's husband Mannu and one Devendran were chatting with each other, in front of Devendran's house, which was situated at Keelpennathur, in Thiruvannamalai to Thindivanam National Highway. at that time, a bus https://hcservices.ecourts.gov.in/hcservices/ bearing Registration No.TN.32.N.0696 driven by the accused from Thiruvannamalai to Chennai in a rash and negligent manner and dashed against Mannu, who was standing on the mud road. Due to said impact, Mannu has sustained multiple injuries and that has been witnessed by P.W.2 Jayabalan, P.W.3 Perumal and P.W.4 Elumalai and immediately, Mannu was taken to hospital by P.W.2 to P.W.4, but he was declared dead. (ii)P.W.8-Damodaran, who was working as Head constable in Keelpennathur Police station, received Ex.P1 complaint from P.W.1 and registered the case in Cr.No.189/1999 for the offence under Section 304(A) I.P.C. and prepared Ex.P5 F.I.R. (iii) P.W.9-Gangairaj, an investigating officer, took up the matter for investigation. Next day morning at about 6.00 a.m., he went to the place of occurrence and prepared Ex.P2 observation mahazar and drew rough sketch Ex.P6 in the presence of the witnesses P.W.2 Jayabalan and P.W.3 Perumal. At 7.00 a.m., he went to the Government hospital, Thiruvannamal and conducted inquest on the body and the inquest report was marked as Ex.P7. Then he examined the witnesses and recorded their statements. Thereafter, he arrested the accused and enlarged him on bail. He sent a requisition to P.W.6 for inspecting the vehicle. Then, he examined P.W.6-Motor vehicle Inspector and received Motor vehicle Inspector's report Ex.P3. After completing investigation, he filed charge sheet against the accused for the offence under Section 304(A) I.P.C. 3.The trial Court, after considering the evidence of P.W.1 to P.W.9 and Exs.P1 to P8, convicted the accused for the offence under Section 304(A) I.P.C. and sentenced him as stated above, against which, the revision petitioner has preferred an appeal in Crl.A.No.41/2004, on the file of the Sessions Court, Thiruvannamalai. The learned Sessions Judge, after hearing the arguments advanced by both sides, confirmed the conviction and sentence passed by the trial Court, against which, the present revision has been preferred by the revision petitioner/accused. 4.Challenging the conviction and sentence passed by both the Courts below, the learned counsel for the petitioner submitted that it is the case of the defence that Devendran and deceased Mannu were chatting with each other. Due to wordy quarrel, Devendran pushed down Mannu on the road. At that time, the accident was occurred. The said Devendran has not been examined before the trial Court and that factum has not been considered by the Courts below. He further submitted that there was a delay in despatching the F.I.R. to the concerned Magistrate. So the prosecution has not proved the guilt of the accused beyond reasonable doubt. Hence, he prayed for allowing of this revision. https://hcservices.ecourts.gov.in/hcservices/ 5.The learned Government Advocate (crl.side) submitted that identity of the accused is not disputed. He further submitted that delay in despatching the F.I.R. to the concerned Magistrate is not fatal to the case of the prosecution. As per the evidence of P.W.1, after hearing the noise, she rushed to that place, So P.W.1, wife of deceased Mannu is not an eye-witness, but whereas P.Ws.2,3 and 4 are eye witnesses. Even though there was minor contradiction between the evidence of P.W.2 to P.W.4, it will not fatal to the case of the prosecution. During the investigation, Devendran was examined, but at the time of trial, his whereabouts were not known. So V.A.O. Certificate was filed, then only prosecution evidence has been closed. So the trial Court and Sessions Court have considered all the aspects in a proper perspective and came to the correct conclusion that the accused was guilty for the offence under Section 304(A) I.P.C. Hence, the conviction and sentence passed by both the Courts below are not suffered any illegality or irregularity and therefore, he prayed for the dismissal of the revision. 6.Considered the rival submissions made on both sides as well as the materials available on record. 7.The prosecution has proved the identity of the accused by way of Ex.P8 log sheet. The F.I.R. was registered in Cr.No.189/1999 on 28.08.1999, at 11.30 p.m. and received by the Court only on 20.09.1999, at 11.00 a.m. On 29.08.1999, post-mortem was conducted by P.W.7-Dr.Somasundaram and the post-mortem certificate was marked as Ex.P4. On the same day, the vehicle was inspected by P.W.6-Duraisamy, Motor Vehicle's Inspector and the motor vehicle inspector's report was marked as Ex.P3 and date of accident are not disputed. In such circumstances, the delay in despatching the complaint Ex.P1 and FIR is not fatal to the case of the prosecution. 8.While considering the evidence of P.W.1, as though she deposed that she was an eye-witness, in Ex.P1 complaint she stated that after the said accident only, she rushed to the place of occurrence. In such circumstances, I am of the view that P.W.1-Parasakthi, wife of deceased Mannu, is not an eye-witness. But whereas P.W.2 to P.W.4 are eye-witnesses and their evidence have clearly proved that at the time of the accident, both Devendran and deceased Mannu were standing in front of the house of Devendran. As per Ex.P6 rough sketch, the distance between the house of Devendran and place of occurrence is 30 feet and the width of the thar road is 22 feet. The occurrence was taken place on northern side of the road. Even though the bus has been driven by the accused at moderate speed, if he turned the vehicle on right side he may very well averted the accident. 9.While considering the cross-examination of P.W.2-Jayabalan, who is brother-in-law of the deceased Mannu, a suggestion was posed to him that Devendran has pushed down the deceased Mannu on road, at the time, the vehicle has been dashed against him, which was denied https://hcservices.ecourts.gov.in/hcservices/ by him. Admittedly, the distance between the place of occurrence and where the bus was stopped after the accident was 15 feet. 10.While considering the evidence of P.W.3 Perumal, a suggestion was posed to him that " me;j nuhl;od; tHpahf epiwa bghpahh; g!; nghfpwJ vd;why; rhpjhd;. 10 epkplj;jpw;F xU g!; nghfpwJ vd;why; rhpjhd; mjpy; ve;j tz;o ,oj;jJ vd;W bjhpahky; M$h; vjphp kPJ jhd; bgha; rhl;rp brhy;fpnwd; vd;why; rhpay;y/@ Since so many vehicles were passing through the road, without knowing which vehicle was dashed against the deceased, a false case has been foisted against the accused, it was denied by him. So the defence taken by the accused that since one Devendran has pushed down the deceased on the road, so the accident was occurred, is inconsistent. Furthermore, since the prosecution has proved that the whereabouts of Devendran has not known, so non examination of Devendran is not fatal to the case of the prosecution. Considering the cumulative facts of the case and the evidence of P.W.2 to P.W.4, it has clearly proved that the accused is guilty for the offence under Section 304(A) I.P.C. So I am of the view that the prosecution has proved that the revision petitioner/accused is guilty for the offence under Section 304(A) I.P.C. beyond reasonable doubt. So both the Courts below have considered all the aspects in a proper perspective and came to the correct conclusion and hence, the judgment of conviction and sentence passed by both the Courts below does not warrant any interference. Therefore, the criminal revision is dismissed as devoid of merits. 11.In fine, • The criminal revision is dismissed. • The conviction and sentence passed by both the Courts below are hereby confirmed. • Bail bond, if any, executed by the revision petitioner/accused shall stand cancelled. • The trial Court is directed to secure the custody of the revision petitioner/accused to undergo the remaining period of sentence. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar kj https://hcservices.ecourts.gov.in/hcservices/ To 1.The District and Sessions Judge, Thiruvannamalai. 2.The Judicial Magistrate No.II Thiruvannamalai. 3. The Chief Judicial Magistrate, Thiruvannamalai. 4.The Sub-Inspector of Police Keelpennathur Police Station Thiruvannamalai District. 5.The Public Prosecutor High Court, Madras. 6.The Record Keeper Criminal Section, High Court, Madras. 1 cc to Mr.G.Rajan, Advocate, Sr.No.38085 Judgment in CRL.R.C.No. 1006 of 2009 DM {CO} TP/14.7.2011. https://hcservices.ecourts.gov.in/hcservices/