BAIL SLIP The Appellant/Accused Rajendran was directed to be released on bail as per the order of this Court dated 17.2.2009 and made in Crl.M.P.No.1 of 2009. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.03.2011 CORAM THE HONOURABLE MS.JUSTICE R. MALA CRL.R.C.No.221 of 2009 Rajendran .. Petitioner/Accused ..Vs.. The Inspector of Police, N-2, Kasimedu Traffic Investigation Chennai-600 013. .. Respondent/Complainant Prayer: This Criminal Revision Case is filed under Sections 397 and 402 of Cr.P.C., to call for the records in C.A.No.229 of 2008 on the file of the III Additional Sessions Court, Chennai, dated 23.01.2009 against the judgment of III Metropolitan Magistrate, George Town, Chennai, dated 23.07.2008 in C.C.No.4584 of 2005 and set aside the same. For Petitioner : Mr.T.G.Ravichandran For Respondent : Mr. S.Rajendiran Govt. Advocate (Crl. Side) O R D E R This Criminal Revision arises out of the judgment of conviction and sentence, dated 23.07.2008, in C.C.No.4584 of 2005, on the file of the III Metropolitan Magistrate, George Town, Chennai, whereby the revision petitioner/accused was convicted for the offence under Section 304-A I.P.C., sentenced to undergo six months and for the offence under Section 184 of Motor Vehicles Act, to pay a fine of Rs.200/-, in default, to undergo simple imprisonment for four weeks, confirmed by the conviction and sentence passed by the learned Additional Sessions Judge, dated 23.01.2009, in C.A.No.229 of 2008. 2.The case of the prosecution is as follows: https://hcservices.ecourts.gov.in/hcservices/ (i) On 11.02.2005, at about 16.10 hours, Saranya, a female child, aged about five years, while she was playing in the platform at Prakasam Salai, the revision petitioner/accused has driven the water tanker lorry bearing Registration No.TN10-D-8181 in a rash and negligent manner from North to South direction and dashed against the minor girl Saranya. When she fell down, the lorry ran over her and she died on the way to hospital. (ii) Immediately, P.W.1 Arungodi rushed to the police station and gave a complaint under Ex.P1. P.W.2, who is the mother of the victim girl and P.W.3 are an eye witnesses. P.W.9 is an Inspector, who investigated this case, received the complaint under Ex.P1 and registered the case in Crime No.15/N1/2005 under Sections 304-A I.P.C. and 184 of Motor Vehicles Act and prepared an F.I.R under Ex.P6. Then he gone to the place of occurrence and prepared an observation mahazar under Ex.P2 in the presence of P.Ws.4 and 5 and draw the rough sketch under Ex.P7. He conducted inquest in the presence of Panchayatdars and prepared inquest report under Ex.P8. After inquest, he sent the body of the victim girl for post-mortem. P.W.6-Doctor conducted autopsy and issued Ex.P3 post-mortem certificate. P.W.7-Damodaran is a Motor Vehicle Inspector Grade-I, who inspected the vehicle, which was driven by the revision petitioner/accused and gave his report under Ex.P4. After completing investigation, P.W.9-Inspector, filed the charge sheet against the revision petitioner/accused for the offences under Sections 304-A I.P.C and 184 of Motor Vehicles Act. 3. The learned Metropolitan Magistrate, after following the procedure and considering the oral evidence of P.W.1 to P.W.9 and documentary evidence of Exs.P1 to P9, found the accused guilty for the offences under Sections 304-A I.P.C and 184 of Motor Vehicles Act and convicted and sentenced him as indicated above. Challenging the said conviction and sentence, the revision petitioner/accused has preferred a Criminal Appeal in C.A.No.229 of 2008 on the file of the III Additional Sessions Court, Chennai, wherein the conviction and sentence passed by the learned Metropolitan Magistrate was confirmed, against which, the present revision has been preferred by the revision petitioner/accused. 4. The first limb of the argument advanced by the learned counsel for the revision petitioner/accused that when P.W.1- Arungodi was pumping water in the tap, she deposed that usually she noticed only the water and the pot. So she is not an eye witness. His second limb of the argument that Prakasam Salai is a heavy traffic road, so there is no chance for driving the vehicle in a rash and negligent manner. Furthermore, the child was suddenly crossed the road. His third limb of the argument that identity of the accused has not been proved by the prosecution. No trip sheet was filed to show that at the time of the accident, the revision petitioner/accused alone has driven the vehicle. The trial Court as well as the first Appellate https://hcservices.ecourts.gov.in/hcservices/ Court has not considered all the aspects in proper. Hence he prayed for setting aside the judgment passed by both the courts below. 5.Refuting the same, the learned Government Advocate (Crl. side) submitted that P.Ws.1 to 3 are eye witnesses and the identity of the accused has been proved by them. They have cogently deposed that how the accident was taken place. So the accident was occurred only due to the rash and negligent driving of the driver of the water tanker lorry. Hence he prayed for the dismissal of the revision. 6. Considered the rival submissions made on both sides. 7.Now this Court has to decide that whether the identity of the accused has been proved by the prosecution beyond reasonable doubt. Now it is appropriate to consider the evidence of P.W.1 to P.W.3, who are alleged eye witnesses. P.W.1 in her chief-examination, she stated that when they were pumping water, they saw the water tanker lorry came with rash and negligent manner and dashed against the victim girl and ran over her. She stated that " M$h; vjphp jhd; me;j yhhpia Xl;oath;/ " But no one has identified the accused. In her cross- examination, she stated that she saw the accused only at 7.00 p.m in the police station. But in her chief-examination, she stated that at the time of the accident, she saw the accused in the vehicle, which is contrary. P.W.2, who is none other than the mother of the victim girl, in her cross-examination, a suggestion was posed to her that she has not seen the incident, but she denied the same. As per the oral evidence of P.W.2, she is no way identify the revision petitioner/accused. P.W.3-Rajendran is a loadman working in Arc Load Carrier, which is situated opposite to the place of occurrence. There are three shops in front of his office. In his cross- examination, he stated that after the accident occurred, they were chasing the accused, but he gone to the police station. He fairly conceded that after he gone to the police station, he has not identified the accused. In his cross-examination, he stated as follows:- "rk;gtk; ele;j clndna vjphpia Juj;jpr; brd;nwhk;/ 5 epkplj;jpy;. Vjphp nghyP!; !;nlrDf;Fr; brd;W tpl;lhh;/ mjd; gpd;g[ vjphpia ehd; milahsk; fhl;ltpy;iy/ rk;gtk; ele;j 15 epkplj;jpnyna fhty; epiya Ma;thsh; Kd;g[ ehd; milahsk; fhl;ondd;/ @ 8.At this juncture, it is appropriate to consider the investigating officer P.W.9. In his chief-examination, he stated that " vjphpia 11/2/05e; njjp md;W khiy 8/05 kzpf;F ifJ bra;J ePjpkd;wf; fhtYf;F M$h;gLj;jpndd;/ ". In his cross-examination, he stated that he served notice to the revision petitioner/accused under Ex.P9 at 5.30 p.m. to send the water tanker lorry for motor vehicles inspection, which is contrary to the statement that he has given in his chief-examination that he arrested the accused only at 8.05 p.m. So the evidence of https://hcservices.ecourts.gov.in/hcservices/ P.W.9 has not clearly proved on the part of the arrest of the accused. Further, P.W.9 has fairly conceded that he has not seized any documents to show that at the time of the accident, the revision petitioner/accused alone has driven the vehicle. In such circumstances, once the identity of the accused has been disputed, it is the duty of the prosecution to examine the owner of the vehicle to show that at the time of the accident, who drove the vehicle. Furthermore, P.W.9 has not seized the trip sheet to show that who drove the vehicle at the time of the accident. In such circumstances, the prosecution has miserably failed to prove that the revision petitioner/accused alone driven the vehicle at the time of the accident. 9.Admittedly, the age of the victim girl is five years. The place of occurrence is at Prakasam Salai, which is a heavy traffic road. While perusing the rough sketch under Ex.P7, the distance between the platform and the middle of the road is 1 metre and the width of the road is 11.90 metre. The accident was occurred 1 metre from the east of the road, which shows that when the child was playing in the road, the accident occurred. So the prosecution has miserably failed to prove that the driver of the water tanker lorry bearing Registration No. TN-10-D-8181 alone has driven the vehicle with rash and negligent manner, dashed against the child. Hence, I am of the view that both the courts below have not considered the evidence of P.W.1 to P.W.3 for identification of the accused and not considered the rough sketch under Ex.P.7 and committed an error in concluding the revision petitioner/accused is guilty for the offences under Sections 304-A and 184 of Motor Vehicles Act. The prosecution has not proved that the revision petitioner/accused is guilty for the offences under Sections 304-A I.P.C and 184 of Motor Vehicles Act, beyond reasonable doubt. Hence giving the benefit of doubt in favour of the revision petitioner /accused, the conviction and sentence passed by the Courts below have to be set aside and hence they are hereby set aside. 10.In fine, • This Criminal Revision Case is allowed. • The conviction and sentence passed by the learned III Additional Sessions Judge and III Metropolitan Magistrate are hereby set aside. • The revision petitioner/accused is acquitted of the charges. • The bail bond, if any executed by the revision petitioner/accused, shall stand cancelled and the fine amount if any, paid by him is ordered to be refunded to him. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ kj To 1.III Metropolitan Magistrate, George Town Chennai. 2.The Chief Metropolitan Magistrate, Egmore, Chennai. 3.III Additional and Sessions Court Chennai. 4.-do- The Principal Sessions Judge, Chennai. 5.The Inspector of Police N-2, Kasimedu Traffic Investigation Chennai-600 013. 6.The Public Prosecutor High Court, Chennai. 7.The Section Officer, Criminal Section, High Court, Chennai. 1 cc to Mr.T.G.Ravichandran, Advocate, Sr.No.21994 CRL.R.C.No.221 of 2009 MRD {CO} TP/18.4.2011. https://hcservices.ecourts.gov.in/hcservices/