This Criminal Revision is directed against the judgment passed by the Additional Sessions Judge, (Essential Commodities and NDPS Act cases), Pudukkottai, in C.A.No.4 of 2009, dated 3108.2010, modifying the conviction passed by the District Munsif- cum-Judicial Magistrate Court, Keeranur, Pudukkottai.

2.The case of the prosecution is that on 28.06.2004 at 7.00 pm, on Keeranur-Killukottai near Nachiyarpatti branch road, the accused drove the town bus bearing registration No.TN-29-N-0832 in a rash and negligent manner and hit against the TVS 50, which was driven by Viswanathan and due to which, he died on the spot. In this regard, a case in Crime No.86 of 2004 was registered by the Inspector of Police attached to Udayarpatti Police Station and also filed a final report against the accused by examining the witnesses.

3.In the trial court, 8 witnesses were examined and 8 Exhibits were marked. When the accused was questioned about the incriminating circumstances, he denied the same. The trial court convicted the revision petitioner/sole accused and sentenced him to undergo one year of Rigorous Imprisonment and to pay a fine of http://www.judis.nic.in 3 Rs.,3,000/-, in default to undergo three months of simple imprisonment for the offence under Section 304(A) IPC. Aggrieved by the judgment passed by the trial court, the revision petitioner/accused filed an appeal in C.A.No.4 of 2009, which was heard by the Additional District and Sessions Judge/Presiding Officer, Special Court for EC and NDPS Act Cases, Pudukkottai. The first appellate Court modified the conviction and sentence and in-spite of one year imprisonment and a fine of Rs.3,000/-, the accused had to pay the fine amount only. Hence, this criminal revision.

4.The learned counsel for the revision petitioner/accused submitted that in this case, the Investigating Officer was not examined and there is delay in dispatching of FIR to the Court, which shows that the Investigating Officer may choose the witness of his chose and projected false information before the trial court, especially when PW1 and PW2 are closely related to the deceased Viswanathan and that there is an unexplained delay in sending the statement of witnesses to the trial court and that the witnesses PW1 and PW2 gave contra evidence regarding the place where the deceased Viswanathan travelled in the bus and when PW1 did not http://www.judis.nic.in 4 mention where the deceased stand in the bus, PW2 categorically stated that he got inside the bus which is contrary to the case projected by the prosecution and in this case, the prosecution has failed to examine the independent witnesses travelled in the bus and Ex.P5 (FIR) and Ex.P7 (Observation Mahazar) were prepared on 28.06.2004 at about 8.30 pm, which will show the nature and character of the investigation done in this case and absolutely, there is no evidence with regard to rashness and negligence on the part of the revision petitioner and the prosecution has failed to prove the case beyond reasonable doubt and prays that the criminal revision may be allowed. The learned counsel for the revision petitioner has placed reliance upon the decision reported in 2017-1-L.W(Crl.) 160 (M.Subramani vs. State rep. By Inspector of Police, Edapadi Police Station, Salem District), in support of his contention.

5.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that the first appellate Court appreciated the evidence in a proper manner and believed the evidence of the eye witnesses and having regard to the nature of the offence, has given a correct finding, http://www.judis.nic.in 5 which does not require any interference by this court and the accused is not entitled for acquittal and prays that the criminal revision may be dismissed.

6.Heard both sides and perused the materials available on record.

7.PW1 is the complainant and he gave Ex.P1 complaint. PW1 in his complaint stated that on 28.06.2004 at 7.00 pm, while the accused proceeding on Keeranur-Chinnukottai main road, near Nachiyarpatti turning, the accused drove his vehicle in a rash and negligent manner without seeing the TVS 50, which was coming in the opposite direction and turned his vehicle into the left side and due to it, the deceased Viswanathan fell down from the bus and the back side of the wheel climbed over the hip of the deceased and he died on the spot.

8.PW1 during his evidence stated that on 28.06.2004 at 6.00 pm, the deceased and he travelled in a bus to go to Kunavaipatti from Keeranur and while the bus reached Nachiyarpatti turning, a TVS-50 came in the opposite direction and http://www.judis.nic.in 6 the driver of the bus drove his vehicle in a speedy manner and suddenly turned to the left side and due to it, his brother-in-law fell down from the bus and the back side of the bus wheel, climbed over the deceased and the deceased died on the spot.

9.It is to be noted here that PW1 has not stated during his evidence that the accused drove the offending vehicle in a rash and negligent manner. Further, PW1 during his cross examination stated that at the time of occurrence, some of the passengers travelled in the front side of foot board. But PW1 has not stated the number of the passengers, who were travelling in the front side foot board. Further, PW1 during his cross examination stated that he and the deceased were sitting, three seats from the front side foot board. From the cross examination of PW1, it reveals that it is not possible for the deceased to fell down from the bus, when the accused suddenly turned the bus to left side.

10.PW1 has not stated that at the time of the occurrence, the accused applied sudden brake and due to which, the deceased fell down from the bus, who stood near the foot board. Further, PW1 is the brother-in-law of the accused and PW1 has not produced http://www.judis.nic.in 7 the bus ticket to prove that he travelled in the bus on the date of occurrence. There are lot of contradictions in the evidence of PW1. Hence, no much importance can be given to the evidence of PW1.

11.PW2 is cited as eye witness. PW2 deposed that on 28.04.2004 at 6.00 pm, he travelled in the offending vehicle and the accused is the driver of the offending vehicle and when the bus reached Nachiyarpatti turning, the accused, on seeing a TVS 50 coming in the opposite direction, applied sudden brake and at that time, the deceased, who stood nearby front side foot board, thrown out of the bus and the back side of the bus wheel climbed over the body of the deceased and due to it, the deceased died on the spot.

12.It is to be noted that PW2 has not deposed that the accused drove the vehicle in a rash and negligent manner. PW2 during his chief examination stated that at the time of the occurrence, the deceased was standing near the front foot board. But during his cross examination, he has stated that at the time of the occurrence, the deceased sit in the front seat and no passenger stood either in the front foot board or back side foot board of the bus. Further, PW2 stated that he sit three seats from the driver seat http://www.judis.nic.in 8 and further PW2 stated that PW1 sit behind him. But PW1 stated that he sit in the third seat on the front side entrance of the bus. Hence, it is not possible for PW1 and PW2 to see the occurrence. PW1 and PW2 are the interested witness. Therefore, much importance cannot be given to their evidence.

13.PW3 is the wife of the deceased. PW3 deposed that she heard that her husband died due to climbing of the bus wheel.

14.The learned counsel for the accused argued that the road in which the alleged accident occurred in a branch road and it is not possible for two vehicle to ply simultaneously and if any vehicle came in the opposite direction should be crossed slowly and in that manner, the accused drove his vehicle in a very slow speed, since a TVS-50 came in the opposite direction and there was no rash and negligent driving on the part of the accused and hence, the accused is entitled to acquittal.

15.At this juncture, it is necessary to refer the cross examination of PW8 the Investigating Officer. PW8 during during cross examination deposed that:-

http://www.judis.nic.in 10

18.It is mainly argued on the side of the revision petitioner/accused that the oral evidence of the prosecution witnesses was not proved the rash and negligent driving of the accused and there are contradictions between the oral evidence of the prosecution witnesses and there can be no general presumption that a person should have driven a vehicle in a rash and negligent manner, merely because there was an accident.

19.At this juncture, it is relevant to refer the decision of this Court reported in 2017-1-LW.(Crl.)160 (M.Subramani Vs. State rep. By Inspector of Police, Edapadi Police Station, Salem District), wherein this court has held as follows:-

accident where the accused was prosecuted under Section 304-A IPC, one of the witness had stated that the bus drive came driven the bus at a high speed. The Hon'ble Apex Court held that it would not satisfy the requirement of the driver driving the vehicle in a rash and negligent manner as required under Section 304-A IPC and acquitted the accused.” http://www.judis.nic.in 11

20.In this respect, the following observations made by the Hon'ble Supreme Court in SATISH (supra) are relevant here to note:-

21.Subsequently, in Abdul Subhan vs. State (NCT of Delhi ) {2007 Cri.L.J. 1089}, in a road accident case for an offence under Section 304-A IPC, the only available evidence of an Head Constable is that the bus driver had driven the bus fastly. The Delhi High Court relying on the Hon'ble Apex Court decision in SATISH (supra) held that the bus http://www.judis.nic.in 13 driver cannot be held to have drove the bus in a rash and negligent manner.

22.In State vs. Avadh Kishore {Crl.L.P. No.213 of 2007 dated 30.1.2009 (Delhi High Court)}, the Delhi High Court reiterated its earlier view in ABDUL SUBHAN (supra).

23.Recently in Puttaiah @ Mahesh vs. State by Rural Police {Crl . Review Petition No.1317 of 2010 dated 4.3.2016 (Karnataka High Court)}, the Karnataka High Court held as under:

http://www.judis.nic.in 16 T.KRISHNAVALLI,J er Crl.RC(MD)No.889 of 2010 31.10.2018 http://www.judis.nic.in