This Criminal Revision is directed against the judgment made in C.A.No.71 of 2009 by the Additional District Sessions Judge (Fast Track Court), Dindigul, dated 11.08.2010, confirming the judgment passed by the Judicial Magistrate No.2, Dindigul, in C.C.No.645 of 2007, dated 27.11.2009.

2.The case of the prosecution is that on 30.04.2007 at 22.50 hours on Dindigul-Karur road near Senthil Spinning Mills, the accused drove the lorry TN-27-A-4579 and hit against the TATA INDIA Car TN-45-N-4959. In that process, 9 persons travelling in the car died on the spot and another person died on the way to the hospital and one person has sustained injury. The Inspector of Police attached to Vedachandur Police Station has filed a report against the accused examining the witnesses.

3.In the trial court, 23 witnesses were examined and 18 Exhibits were marked. When the accused was questioned about the incriminating circumstances, he denied the same. The trial court convicted the revision petitioner and sentenced him to pay a fine of Rs.1,000/- in default to undergo 1 month SI for the offence under http://www.judis.nic.in 3 Section 279 IPC; for the offence under Section 338 IPC, imposed a fine of Rs.1,000/-, in default to undergo one month SI and for the offence under Section 304(A) (6 counts), sentenced him to undergo two years RI (for each count). Aggrieved by the judgment of the trial court, the revision petitioner filed an appeal in C.A.No.71 of 2009, which was heard by the Additional District and Sessions Judge (FTC), Dindigul. The first appellate Court had also confirmed the findings of the trial court. Hence, this criminal revision.

4.The learned counsel for the revision petitioner/accused submitted that the prosecution has failed to establish the ingredients required for all the offences with which he stood charged and convicted him for the said offences and none of the witnesses have spoken that the accused has driven the vehicle either rashly or negligently and there is no specific allegation of negligence as against the accused in driving the vehicle and the eye witnesses are interested witnesses and the prosecution has failed to prove the case beyond reasonable doubt and the accused is entitled to acquittal and prays that the criminal revision may be allowed.

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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 offences, convicted the revision petitioner for rash and negligent driving of the vehicle and passed proper sentence, 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 injured and she gave Ex.P1 complaint. PW1 in her complaint stated that on 30.04.2007 at 10.45 pm, she, Jaya, Pavithra, Rohini, Selvam, Mani, Murugan were came in a Car from Kumarapalaym and when they reached Pathipuram, at that time the accused drove his vehicle in a rash and negligent manner and dashed against their Car and due to the accident Jaya, Pavithra, Rohini, Selvam, Mani, Murugan died on the spot and the injured were taken to the City Hospital, Karur and in the Hospital, the police came and recorded the complaint statement. http://www.judis.nic.in 5

8.PW1 during her evidence stated that on 30.04.2007 at 10.45 pm, she, Jaya, Pavithra, Rohini, Selvam, Mani, Murugan came in a Car from Kumarapalaym and when they reached Pathipuram, at that time the accused drove his vehicle in a speedy manner and dashed against their Car and due to the accident Jaya, Pavithra, Rohini, Selvam, Mani, Murugan died on the spot and the injured were taken to the City Hospital, Karur and in the Hospital, the police came and recorded the complaint statement. PW1 has not stated during her evidence that the accused drove his vehicle in a rash and negligent manner and she stated that the accused drove his vehicle in a speedy manner and dashed against their Car.

9.PW2 to PW4 were cited as eye witnesses. PW2 and PW4 were turned hostile. PW3 during her evidence stated that at the time of occurrence at 10.00 pm, when she was taking tea at a Tea Stall, Car and Lorry dashed each other. PW3 has not stated during her evidence that the accused drove his vehicle in a rash and negligent manner.

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10.PW3 during her chief examination stated that she saw the occurrence. But during her cross examination, PW3 stated as follows:-

11.In this case, the Motor Vehicle Inspector was examined as PW17. PW17 stated during his evidence that the accident was not occurred due to mechanical defect. It is to be noted that in this case, some witnesses spoke about the identification of the body of the deceased and the body of the deceased was taken to the Government Hospital.

12.In this case, PW1 to PW4 have not deposed that the accused drove his vehicle in a rash and negligent manner. http://www.judis.nic.in 7

13.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.

14.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 8

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 driver cannot be held to have drove the bus in a rash and negligent manner.

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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:

24.06.2019 Index:Yes/No Internet:Yes/No er http://www.judis.nic.in 12 To,

1.The Additional District and Sessions Judge, (Fast Track Court), Dindigul.

2.The Judicial Magistrate No.2, Dindigul.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

http://www.judis.nic.in 13 T.KRISHNAVALLI,J er Judgment made in Crl.R.C(MD)No.665 of 2010 24.06.2019 3 0 4 ( A) I P C - A L L OW E D http://www.judis.nic.in 14

14.In the result, this Criminal Revision is allowed. The impugned judgment of conviction and sentence are set aside. The revision petitioner/accused is acquitted of the charge levelled against him. The bail bond if any executed by him shall stand cancelled and the fine amount if any paid by him shall be refunded to him.

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