BAIL SLIP The Appellant/Accused namely K.K.Mani directed to be released on bail as per the order of this Court dated 13.2.2006 in Crl.M.P.No.944/06 in Crl.R.C.No.173/06 on the file of thils Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01..07..2009 CORAM THE HONOURABLE MR. JUSTICE G.RAJASURIA CRL.RC.No.173 of 2006 and Crl.M.P.No.944 of 2006 K.K.Mani .. Petitioner/Accused vs. The State rep.by the Sub Inspector of Police Thalaivasal Police Station Salem District .. Respondent/Complainant Criminal Revision filed under Sections 397 and 401 of Cr.P.C., against the judgment dated 17.11.2005 passed by the learned Additional District and Sessions Judge (Fast Track Court No.I), Salem in Criminal Appeal No.58 of 2005 confirming the judgment dated 23.03.2005 passed by the learned Judicial Magistrate No.II, Attur in C.C.No.238 of 2004. For petitioner : Mr.S.Ayyathurai For Respondent : Mr.Hasan Mohammed Jinnah Additional Public Prosecutor O R D E R Animadverting upon the judgment dated 17.11.2005 passed by the learned Additional District and Sessions Judge (Fast Track Court No.I), Salem in Criminal Appeal No.58 of 2005 confirming the judgment dated 23.03.2005 passed by the learned Judicial Magistrate No.II, Attur in C.C.No.238 of 2004, this criminal revision petition is focussed. https://hcservices.ecourts.gov.in/hcservices/ 2. A 'resume' of facts, which are absolutely necessary and germane for the disposal of this Criminal Revision petition would run thus: (i) The police laid the police report in terms of Section 173 of Cr.P.C as against the accused for the offences under Sections 279, 337 and 338 of I.P.C. Since the accused pleaded not guilty, trial was conducted. (ii) On the side of the prosecution, P.Ws.1 to 13 were examined and Exs.P1 to P8 were marked. On defence side, no oral or documentary evidence was adduced. Ultimately, the trial court convicted the accused and imposed sentences as under: ------------------------------------------------------------------- Offences Sentence imposed Fine amount ------------------------------------------------------------------- (i) 279 IPC ------ Rs. 250/- (in default to undergo one month simple imprisonment) (ii) 304-A IPC Six months simple Rs. 1,000/- imprisonment (in default to undergo one month simple imprisonment) ------------------------------------------------------------------- The accused preferred appeal before the learned Additional District and Sessions Judge (Fast Track Court No.I), Salem, for nothing to be dismissed. (iii) Being aggrieved by and dissatisfied with the conviction recorded and the sentence imposed by the lower court, this revision is focussed on various grounds, the gist and kernel, the nitty gritty, the pith and marrow of them would run thus: Both the courts below committed error in appreciating the evidence. 3. Heard the learned counsel for the revision petitioner and the learned Additional Public Prosecutor. 4. At this juncture, it is just and necessary to narrate the prosecution version of the incident. As revealed by the police https://hcservices.ecourts.gov.in/hcservices/ report, on 06.11.2003, at about 9.20 hrs (day time), the accused drove the Government transport corporation bus bearing No.TN-27-N- 1302 in a rash and negligent manner along Attur - Kallakurichi Main road from west to east and dashed the cyclist Balachandran, who was at that time riding his bicycle by having his child Arutchelvan as pillion rider so as to leave him at the Tagore Matriculation Higher Secondary School, and caused grievous injuries and other injuries to Balachandran and that the said Balachandran succumbed to his injuries on 12.11.2003 at the hospital. 5. The points for consideration are as to: (i) Whether both the courts below were perverse in finding the accused guilty of the offences with which, he was charged, without properly appreciating the oral and documentary evidence adduced before it? (ii) Whether both the courts below were unjustified in convicting the accused in the absence of the Doctor and the Motor Vehicles Inspector having been examined in this case? Point Nos.1 & 2: 6. Both the points are taken together for discussion as they are inter-linked and inter-woven, inter-connected and entwined with each other. 7. The learned counsel for the revision petitioner would advance and develop his argument by inviting the attention of this court to the various parts of the evidence to the effect that the police cooked up the case as against the accused purely for the purpose of enabling the legal heirs of the deceased to claim maintenance; the occurrence could not have taken place in the manner narrated by the prosecution. P.Ws.6 and 7, Palanivel and Senthilkumar were only mahazar witnesses as per police records, but they, were tutored to depose before the court as eye witnesses. PW1, the father-in-law of the deceased would depose as though the driver after the accident stopped the vehicle and got down and saw the incident, whereupon he sped away with the vehicle; whereas the other alleged witnesses would not speak in a similar manner; the deposition of the alleged eye witnesses are artificial; the non- examination of the doctor to prove the post-mortem certificate would lead to the inference that the cause of death might be due to some other factors other than the accident referred to in this case; the Motor vehicles Inspector was not examined to prove the opinion of the Motor Vehicles Inspector recorded in the report that the accident was not due to any mechanical defect in the vehicle and accordingly he prayed for setting aside the judgment of both https://hcservices.ecourts.gov.in/hcservices/ the courts below and for acquitting the accused. 8. Whereas the learned Additional Public Prosecutor would argue that the accused was guilty of the offences with which he was charged and that no interference with the judgments of both the courts below are warranted. 9. The deceased Balachandran's father-in-law lodged the first information report with the police, who registered the case in Crime No.662 of 2003 and investigated into the matter and ultimately laid the police report. P.Ws.1 to 5 are the eye witness to the occurrence and they, as per the findings of both the courts below cogently and convincingly, coherently and clearly, and that too, without any material contradiction narrated the incident before the court. 10. The learned counsel for the revision petitioner would submit that absolutely, there is no finding in the judgments of both the courts below that the accused drove the vehicle in a rash and negligent manner and caused the accident. It is a trite proposition of law that from the evidence available, if it is palpably and pellucidly, glaringly and clearly understandable that there involved rash and negligence on the part of the accused in driving the vehicle and thereby causing the accident, there is no embargo that the same should not be countenanced by the Court. PW1, Poomalai, the person, who lodged the first information report with the police, would in his deposition narrate the incident in support of the prosecution case and he would also state that the bus was driven by the driver speedily and he dashed it as against the said cyclist viz., Balachandran and caused the accident. However, he would add that, soon after the accident the driver stopped the bus and got down from it and thereafter he once again got into the bus and sped away with it from that place. It is also in the evidence of PW1, that from the time of accident Balachandran was in a coma stage. PW1 was cross-examined in a cryptic way and the entire cross examination of PW1 is reproduced here under for ready reference: @jhTh; gs;spf;F nkw;Fgf;fkhfj;jhd; tpgj;J ele;jJ/ nghyPrhhplKk; ,ij jhd; brhd;ndd;/ Kjy; tprhuizapy; brhd;dij nghyP!; tprhuizapy; brhd;ndd;/ gs;spf;Tlk; te;J tpl;ljhy; nuhl;od; ,lJg[wk; ,Ue;J tyJg[wk; rhiyia flf;f Kad;w nghJ jLkhwp. fPnH tpGe;J tpgj;J Vw;gl;lJ vd;why; rhpay;y/ ehd; kUkfd; ,we;jth; vd;gjhy; bgha; g[fhh; bfhLj;J bgha; rhl;rp mspf;fpnwd; vd;why; rhpay;y@. (emphasis supplied) https://hcservices.ecourts.gov.in/hcservices/ As such, it is the defence of the accused that while the deceased Balachandran was attempting to cross the road on his cycle, he lost his balance and fell down and sustained injuries. The deposition of PW2 would detail and delineate that the deceased Balachandran was riding his bicycle by having his child as a pillion rider on it from West to East along the said Attur - Kallakurichi road by adhering to his left side; at that time, the said bus driven by the accused was proceeding in the same direction and a lorry was also proceeding in the same direction in front of the said bus; as such, the accused driver attempted to overtake the said lorry, however, he could not complete the overtaking in view of he having seen one other bus coming in the opposite direction and in that process he swerved the bus towards his left side in such a manner that the foot board of the bus dashed as against the cyclist and the accident occurred. The cumulative effect of the deposition of P.Ws.3 to 5 also would be broadly in consonance with the evidence as narrated by PW2. 11. The learned counsel for the accused would submit that the accident could not have occurred in the manner described by the witnesses for the reason that while overtaking the lorry, which was proceeding in front of the said bus, the accused must have crossed the middle of the road and on seeing one other bus coming in the opposite direction he could not have swerved so as to reach the extreme left side of the road and caused the accident and that there was no rash and negligence on the part of the driver and the witnesses also have not spoken about it. However, the arguments advanced by the learned counsel for the revision petitioner cannot be countenanced at all in view of the unrealistic approach involved in the argument. Even as per the very plea of the accused, he was rash and negligent and it is writ large. 12. It is a common or garden principle that while driving a big vehicle like that of a passenger bus, if the driver wants to overtake a lorry proceeding in front of the said bus, the driver should sound or honk the horn giving indication to the driver of the lorry to give way for him to over take. Only after getting hand signal from the lorry driver, the accused ventured to overtake the lorry. But, in this case, it is palpably clear that the driver of the bus did not choose to resort to such a method. Had he resorted to such a procedure, certainly, he would not have unsuccessfully and illegally attempted to overtake the lorry and thereafter on seeing the bus, taken such a retrograde step in swerving the vehicle towards left and in causing the accident. As such, owing to the accused driver's rash and negligence and also carelessness in driving the bus, he attempted to overtake the lorry and thereafter, on seeing one other bus coming in the opposite direction swerved the bus towards the left and came in violent https://hcservices.ecourts.gov.in/hcservices/ conduct with the said cyclist and caused the accident. I am at a loss to understand, if this act of the accused is not termed as "rash and negligent" then what else could be termed so. 13. Learned counsel for the accused cited the decision of Hon'ble Apex Court reported in 2001 (2) MWN (Cr.) SC 77 (Mohammed Aynuddina alias Miyam vs. State of Andhra Pradesh) to highlight that the "rash and negligence" should not be presumed. However, the said judgment, is against the accused and not in favour of the accused. An excerpt from it would run thus: "9. A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still, a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution." As such, it is clear that the said act of the accused as discussed supra would clearly exemplify and evince that he was rash and negligent in driving the bus and in causing the accident. No father having a child on his cycle and that too, while taking the child to the school would be rash and negligent or careless in allegedly crossing the road as suggested by the accused during cross examination of witnesses. The defence theory is totally antithetical to the preponderance of probabilities. I am fully aware of the fact that the accused is not expected to prove beyond reasonable doubt the defence plea, but once the accused comes forward to put forth a plea, certainly it is subject to comment by the prosecution as well as by the court. Here the defence theory is to the effect that the bus did not even dash the cycle or came in contact with the cycle, but the deceased of his own accord while crossing the road lost his balance and fell down and ultimately died. Such a theory is glaringly and palpably unrealistic that no one could digest it as true. No doubt, the prosecution cannot pick holes in the defence plea and try to achieve success in the litigative battle and it is the duty of the prosecution to prove the case beyond reasonable doubts. Here , in this case, P.Ws.1 to 5 as discussed supra without any embellishment narrated the incident and both the courts below accepted it and believed the version of the witnesses and recorded the conviction warranting no interference by this court. https://hcservices.ecourts.gov.in/hcservices/ 14. The learned counsel for the accused would submit that the trial court simply assumed as though PW7 is a genuine eye witness when in fact, he was as per police records, a mahazar witness. No doubt, in para No.15 of the judgment of the lower court while describing the eye witnesses P.W.7 was also wrongly referred as one of the eye witnesses but in stricto sensu PW7 even though spoke before the court as though he had seen the incident, he was not an eye witness to the occurrence as per police records. As such the evidence of PW7 should be excluded from consideration. Merely because of that error committed by the lower court, the entire finding of the lower court cannot be looked askance at and on that ground, itself no acquittal can be passed. 15. It is a trite proposition of law that as per the Motor Vehicles Act, whenever an accident occurs involving a Motor vehicle, the driver of the said vehicle should stop the vehicle and he cannot simply go away from the place. But, in this case, the accused left the place of accident by taking the vehicle, which itself is indicative of his guilty conscience. 16. Learned counsel for the revision petitioner would cite the decision of this court reported in 2001 (2) MWN (Cr.249) (Sekar vs. State by Sub Inspector of Police, Ethapur, Salem District) in order to canvass the point, that there should be evidence to prove the rash and negligence on the part of the driver of the vehicle concerned. 17. A bare perusal of the cited decision would reveal that in that case, the court after acquitting the accused under Section 279 of IPC, however curiously, convicted the accused under Section 304 A of IPC and that was found fault with by the High court and pointed out that after acquitting the accused of the offence under section 279 IPC, the lower court should not have convicted the accused under Section 304-A of IPC. But, here the facts are entirely different as it is quite obvious from the above discussion and no more elaboration in this regard is required. 18. The learned counsel for the accused also cited the decision of the Karnataka High Court reported in 2000 Criminal Law Journal 2426 (State of Karnataka vs. Sadanand Parusharam Hosurkar), which is relating to the set of facts, where the deceased cyclist was riding the bicycle along the centre of the road and it was found fault with by the High Court. But, here the facts are entirely different as it is quite obvious from the above discussion. 19. The learned counsel for the accused also cited the decision of this court reported in 1991 LW (Cr.)232 (Chandrasekar vs. State by Inspector of Police, Dharmapuri Police Station, https://hcservices.ecourts.gov.in/hcservices/ Dharmapuri) and pointed out that it is the duty of the prosecution to prove the case beyond reasonable doubt. An excerpt from the said decision would run thus: "6. Both the courts below, while finding that there was no proof either of rashness or negligence on the part of the petitioner, held that the doctrine of res ipsa loquitor, could be applied to the facts of this case. The decision of the Supreme Court in Rattan Singh vs. State of Punjab was relied upon. In that case, the Apex Court held as here under:- "In our current conditions, the law under S.304-A IPC.... must have due regard to the fatal frequency of rash driving of heavy duty vehicles and of speeding menaces. Thus viewed, it is fair to apply the rule of res ipsa loquitor, of course, with care". A catena of rulings on this subject positively show that the one person who could offer an explanation regarding the nature of the incident was the accused himself. The explanation of the accused could also be taken note of in the background of the prosecution evidence to find out if he had been rash or negligent while driving the lorry. Unfortunately, the petitioner had not chosen to offer any explanation when he was examined under S.313 Cr.P.C. It is also the law that if a person is driving the vehicle he is under a duty to control it. He would be prima facie guilty of negligence if the vehicle left the road and it was for the person, who was driving the vehicle, to explain the circumstances under which the vehicle had left the road. These circumstances may be beyond control of the driver and may, even exculpate him, but in the absence of such a situation the fact that the vehicle had left the road would be evidence of negligence on the part of the driver. 7. In a number of decided cases it has been held that as a rule, mere proof that an event had happened or an accident had occurred, the cause of which was unknown, was not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in clearly and unambiguously, the negligence of same body as the cause for the event or accident. It is only to such of these cases that the maxim res ipsa loquitor may apply, if the cause of the accident was unknown and no reasonable https://hcservices.ecourts.gov.in/hcservices/ explanation as to the cause was forthcoming from the accused. Further the event or accident must be of a kind, which does not happen in the ordinary course of things, if those who have management and control, use due care. It may be in such cases that the court must be further satisfied that the event which caused the incident was within the control of the accused. The reason is not far to seek, for, he would be in a better position to explain as to how the accident had occurred." A bare perusal of the said judgment including the aforesaid excerpts would clearly indicate that the prosecution cannot by pleading the principle of res ipsa loquitor fob off the responsibility to prove the case on the accused. In such circumstances, this court laid down the above dictum. Here the facts as discussed supra would reveal and convey that there is overwhelming evidence to establish that the accused was rash and negligent in attempting to overtake the lorry, which was proceeding in front of him and as a sequela, he placed himself in a perilous and precarious situation and consequently, he allowed the vehicle to wobble and swerve towards the left and hit against the deceased cyclist. In such a case, the prosecution has not merely relied on the principles of res ipsa loquitor and try to fob off its responsibility on the accused but, on the other hand, the prosecution by proving its case got the onus of proof shifted to the accused to prove his plea. But curiously enough the accused had not chosen to examine himself as witness to explain the facts within his knowledge as per Section 105 of the Indian Evidence Act. No passenger of the offending bus was examined and not even the conductor of the offending bus was examined. I am fully aware of the fact that in a criminal case, the accused is not expected to examine himself as witness or examine any witness on his side. But, here, in the peculiar facts and circumstances of the case, the accused went to the extent of taking certain plea and in such a case, after the prosecution having proved the rash and negligence of the accused, failed even to prove the preponderance of probabilities of the defence plea or defence theory. 20. The learned Additional Public prosecutor cited the decision of the Hon’ble Apex Court reported in 2007 (3) SCC 474 (Rathnashalvan vs. State of Karnataka). An excerpt from it would run thus: "7. Section 304-A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts, which https://hcservices.ecourts.gov.in/hcservices/ are rash and negligent and are directly cause of death of anoher person. Negligence and rashness are essential elements under Section 304-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. 8. As noted above, "rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted. 9. The distinction has been very aptly pointed out by Holloway, J., in these words: "Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness (luxuria). Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not