B A I L S L I P The Appellant/Accused namely V. Manju, was directed to be released on bail as per the order of this Court dated 23.12.2008 in MP.No.1/08 in Crl.RC.No.1645 of 2008 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 11.02.2011 Coram THE HONOURABLE MS. JUSTICE K.B.K.VASUKI Crl.R.C.No.1645 of 2008 V.Manju .. Petitioner Vs. State rep. by S.I. of Police, Mehendramangalam Police Station, Dharmapuri District. .. Respondent Prayer :- Criminal Revision Petition filed under Section 397 r/w 401 of Cr.P.C. against the order made on 22.10.2008 in C.A.No.21 of 2008 on the file of Principal Sessions Judge, Dharmapuri confirming the judgment of conviction and sentence made on 28.02.2008 in CC.No.78 of 2006 on the file of District Munsif-cum-Judicial Magistrate, Palacode. For Petitioner : Mr.K.Srinivasan For Respondent : M/s.A.D.Jagadish Chandira, APP. ORDER The petitioner herein is the accused who is convicted for the offence under sections 279, 337, 338 and 304(A) IPC by the trial court in CC.No.78 of 2006 on the file of District Munsif-cum- Judicial Magistrate, Palacode as confirmed in C.A.No.21 of 2008 on the file of Principal Sessions Judge, Dharmapuri. 2. The case of the prosecution is that the petitioner drove his Tempo-407 van on Royakottai to Palacode main road rashly and negligently and without blowing horn dashed against TVS-50 driven by one Chinnavan on 13.07.2005 at 8.00pm near Veerasanur kandabail branch road, and caused fatal accident in the course of which the rider of the two wheeler and one of the pillion riders sustained https://hcservices.ecourts.gov.in/hcservices/ injury and the other pillion rider sustained serious injuries resulting in his death. Thereby the accused committed the acts constituting the offences punishable under section 279, 337, 338 and 304(A) IPC. 3. The prosecution has in order to bring home the guilt of the accused for the offences as above mentioned examined the pillion rider and rider of TVS-50 who are father and son, other son of PW1 eye witnesses, postmortem report, doctor who examined and treated the injured persons, the police personnel who received the complaint and held the investigation and Motor Vehicle Inspector as PW1 to PW14 and also produced the Ex.P1 to P10 documents. 4. The trial court has on the basis of the available records found the accused guilty of the offences under section 279, 337(2 counts), 338 and 304(A) IPC and convicted and sentenced him to undergo imprisonment and to pay fine. Aggrieved against the same the accused preferred C.A.No.21 of 2008 before the Principal Sessions Judge, Dharmapuri and the appellate court confirmed the judgment of conviction and sentence passed by the trial court. Hence, the criminal revision before this court by the accused. 5. Heard the rival submissions made on both sides. 6. The learned counsel for the petitioner, has before this court high lighted three material aspects which are according to him grossly omitted to be considered by the courts below they are : 1.The prosecution has not come forward with the definite case as to direction in which both the vehicles were driven, so as to ascertain whether it is van driver or TVS-50 rider who is responsible for the accident. 2.The condition of the road in the place of occurrence as spoken by the prosecution witnesses. 3.The act of PW2 rider of the motor cycle in carrying two pillion riders PW1 and the deceased in the TVS-50 which does not rule out the possibility of the two wheeler rider loosing balance and falling down resulting in the accident, leading to death of one of the pillion riders of TVS-50. 7. Out of 14 witnesses examined on the side of the prosecution, PW1 and PW2 who are the injured in the accident alone deposed about the factum and the manner of the accident and other witnesses either reached the scene of occurrence or met the injured in the hospital much after the occurrence. 8. As rightly argued by the learned counsel for the petitioner neither PW1 nor PW2 or I.O. who held the investigation and the author of the material documents such as observation magazher, rough sketch relating to the scene of occurrence do not come out https://hcservices.ecourts.gov.in/hcservices/ with definite case as to the direction in which both the vehicles were moving at the time of occurrence. Though, PW1 and PW2 did say the van was coming on Rajakottai to Palacode main road from north towards south as shown in Ex.P.10 rough sketch none of the witnesses did speak about the direction in which TVS-50 was going. 9. The perusal of Ex.P9 shows that accident occurred on the western side of north south road. In that event TVS-50 ought to have come on the wrong side and caused the accident. It is no body's case that the van was driven on the wrong side and dashed against the smaller vehicle such failure on the part of the material witnesses to depose about the direction in which both the vehicles were driven at the time of the accident, assumes in my opinion greater significance which would compel the prosecution theory regarding the manner of the accident highly doubtful. 9. Further almost all the prosecution side witnesses have categorically admitted in the witness box that the road was not even in the scene of occurrence and the road was full of pit and falls and curve at the accident spot whereas neither Ex.P2 or Ex.P10 rough sketch prepared by PW14/IO would reflect the actual physical feature available on land to ascertain the manner of the scene of accident. 10. Further it is also not in dispute that three persons were carried in smaller vehicle TVS-50 which is against law. As rightly pointed out by the learned counsel for the petitioner considering the condition of the road in the scene of occurrence there is every possibility of TVS-50 loosing its balance resulting in the accident without any rashness and negligence on the part of the Tempo van driver. 11. The learned counsel for the petitioner would by relying upon the judgments of our High Court reported in 2009 (1) CLT 542 in Velmurugan V. State of Tamil Nadu contend that possibility of accident due to any fault of the rider of TVS-50 cannot be ruled out. If it is so, it is but difficult to hold that accident must be direct or proximate result of rash and negligent act of accused. Our Apex Court has in the case reported in 1980 SCC 69 in Syed Akbar V. State of Karnataka cast the entire burden of proving everything essential to the establishment of charge against the accused on the prosecution as every man is presumed to be innocent until the contrary is proved. It is observed that where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment and the ruling of the Apex Court is followed in the judgment of our High Court reported in 1989 (9) L.W. Crl. 419 in Muthu V. State rep. by Inspector of Police, Traffic Investigation, Adyar Madras. https://hcservices.ecourts.gov.in/hcservices/ 12. Had the three aspects discussed above been properly viewed in the light of absence of further proof of either rash or negligence on the part of the van driver the same would have led to reasonable doubt in the mind of the courts below about the genuineness of the prosecution case and such benefit of doubt would have been extended to the accused resulting in his acquittal. Such glaring error committed by the courts below renders the findings of the same erroneous and perverse. 13. In the result, the criminal revision stands allowed by setting aside the judgment and conviction of the accused in CC.No.78 of 2006 on the file of District Munsif-cum-Judicial Magistrate, Palacode as confirmed in judgment of conviction and sentence made in C.A.No. 21 of 2008 on the file of Principal Sessions Judge, Dharmapuri and the accused is acquitted for the offences under section 279, 377, 338 and 304-A IPC. The fine amount if any paid by the accused shall be refunded to the accused. The bail bond if any executed by the accused shall stand cancelled. tsh Sd/- Deputy Registrar //True Copy// Sub Asst. Registrar To 1.The Principal Sessions Judge, Dharmapuri. 2.Do Through the Chief Judicial Magistrate, Dharmapuri. 3.The District Munsif-cum-Judicial Magistrate, Palacode. 4.The Sub Inspector of Police, Mehendramangalam Police Station, Dharmapuri District. 5.The Public Prosecutor, High Court, Madras. + 1 cc to Mr. K. Srinivasan, Advocate SR No.10717 KK(CO) SR/1.8.2011 Crl.R.C.No.1645 of 2008 https://hcservices.ecourts.gov.in/hcservices/