IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 25.10.2010 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.No.1018 of 2010 & M.P.Nos.1 and 2 of 2010 A.S.Dharmaraj .. Petitioner Vs State by Inspector of Police R4, Pondy Bazaar P.S. Traffic Investigation Chennai Cr.No.424/TN1/2004 .. Respondent PRAYER: Criminal Revision Case filed under section 397 of Criminal Procedure Code praying to set aside the judgment passed by the learned IV Metropolitan Magistrate, Saidapet, Chennai in C.C.No.4835 of 2005 dated 08.10.2009 and confirming the order dated 11.08.2010 passed in C.A.No.208 of 2009 on the file of VII Additional and Sessions Judge, Chennai. For Petitioner : Mr.S.Ambed Kumar For Respondent : Mr.I. Paul Nobel Devakumar Govt. Advocate (Crl.side) ----- ORDER
The petitioner herein was the accused before the trial Court and appellant before the lower appellate Court. He was prosecuted in respect of a road accident involving three motor vehicles, that took place on 07.12.2004 at about 03.45 a.m near the Seeranipuram Corporation Nursery on the Arcot Road, within the limits of R4 Pondy Bazaar Police Station, Chennai. The three vehicles that were involved in the alleged accident are 1) a Tipper Lorry bearing Registration No.TN-09-D-5009 2) a 407 van bearing Registration No.TN-01-J-6996 and 3) a Mahindra Van bearing Registration No.TN07-H-4967.
2. According to the prosecution, the above said 407 van was proceeding on the southern side of the road in the direction of East to West and the Mahindra van was also following the said 407 van in the very same direction, whereas the tipper lorry, of which the petitioner was the driver, came in the opposite direction and due to the rashness and negligence on the part of the petitioner, there occurred an accident due to the head on collision of the tipper lorry and the 407 Van. The same also resulted in the collision of the Mahindra Van with the 407, which was proceeding in front of the Mahindra Van. In the said accident, a number of persons sustained simple and grievous injuries and out of those who sustained grievous injuries, one succumbed to the injuries and thus, the petitioner was charge-sheeted and prosecuted for the offences under Sections 304(a) IPC, 338 IPC (5 counts), 337 IPC (6 counts) and Section 184 of the Motor Vehicles Act.
3. On appearance, the petitioner pleaded not guilty, pursuant to which, the case was tried. In order to substantiate the prosecution case, 15 witnesses were examined as PWs 1 to 15 and 29 documents were marked as Exs.P1 to P29 on the side of the prosecution. After the examination of the witnesses on the side of the prosecution was over, the incriminating materials found in the evidence of the prosecution was brought to the notice of the petitioner and he was given an opportunity to offer explanation. The petitioner contended that the evidence adduced by the prosecution witnesses against him were not true and reiterated his earlier stand that he was not guilty. He did not come forward to adduce any evidence either oral or documentary.
4. The learned IV Metropolitan Magistrate considered the evidence on record in the light of the submissions made on both sides and upon such consideration, came to the conclusion that the charges levelled against the petitioner stood proved, convicted him for the said offences. The petitioner was sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.3,000/- and to undergo simple imprisonment for 6 months in case of default of payment of fine for the offence under Section 304-A and sentenced imprisonment till the raising of the Court and to pay a fine of Rs.500/- each and to undergo one month simple imprisonment in default of payment of fine on each count of the offence under Section 338 IPC (5 counts). He was also sentenced to pay a fine of Rs.300/- each and in default to undergo one month simple imprisonment for each count of the offence under Section 337 IPC (6 counts) and to pay a fine of Rs.500/- and in default to undergo 2 weeks simple imprisonment for the offence under Section 184 of the Motor Vehicles Act. Total amount of Rs.7800/- was imposed as fine.
3. Aggrieved by and challenging the conviction as well as sentence, the petitioner preferred an appeal before the Sessions Court at Chennai in C.A.No.206 of 2009, which came to be disposed by the learned VII Additional Sessions Judge, Chennai by Judgment dated 11.08.2010. The learned Sessions Judge, on a re-appreciation of evidence, confirmed the conviction as well as sentence and dismissed the appeal by the above said judgment. The correctness of the said judgment of the lower appellate Court is sought to be questioned by the petitioner in this criminal revision case.
4. The submissions made by Mr.S.Ambed Kumar, learned counsel for the petitioner and Mr.I.Paul Nobel Devakumar, learned Government Advocate (Crl.side) were heard and the materials available on record were also perused.
5. The learned counsel for the petitioner while submitting his arguments for admission contended that there was no eye witness, who had spoken about the nature of the accident so as to implicate the petitioner for the offences with which he stood charged; that the only witness who deposed before the trial Court regarding the nature of the accident was PW2 and he himself had admitted that the tipper lorry, which came in the opposite direction did not cross the yellow line as claimed by the prosecution and that the vehicles concerned, especially the vehicle allegedly driven by the petitioner, namely tipper lorry bearing Registration No.TN-09-D-5009 was not subjected to inspection by the Motor Vehicles Inspector, who deposed as PW10. It is the further contention of the learned counsel for the petitioner that PW10 himself candidly admitted that he did not inspect the vehicle allegedly driven by the petitioner at the time of accident. It is also the contention of the learned counsel for the petitioner that there is no evidence to show that the petitioner was the driver of the vehicle which caused the accident.
6. The judgments of the Courts below are considered in the light of the above said submissions made by the learned counsel for the petitioner and also with the help of the copies of depositions of the witnesses produced by the petitioner in the form of a typed-set of papers. Upon such consideration, this Court comes to the conclusion that this revision does not even merit admission and the same deserves to be dismissed in limine. The reasons are furnished in the paragraphs appearing hereunder.
7. The first and foremost contention of the learned counsel for the petitioner is that the only eye witness who spoke about the accident admitted that the tipper lorry driven by the petitioner was on the ‘right’ side and it did not cross the yellow line to come to the ‘wrong’ side. A perusal of the copy of the deposition of PW2, shows that there is no such admission as contended by the learned counsel for the petitioner. What the witness has stated is that he was travelling in the 407 van bearing Registration No.TN-01-J-6996 during night hours on the fateful day; that the tipper lorry that came in the opposite direction colluded with the 407 van in which they were proceeding; that they could not notice the number of the vehicle that came in the opposite direction and dashed against the 407 van as it was dark and that all of them fell inside the vehicle to the jerk caused by the impact. Even during cross examination, PW2 simply stated that he did not know which portion of the other vehicle that came in the opposite direction and which portion of the van came into contact and pleaded as to whether the other vehicle crossed the yellow line or not. Such an answer, at no stretch of imagination can be construed to be an admission that the offending vehicle that came in the opposite direction was on its right side and did not cross the yellow line to come to the wrong side. So, the above said contention of the learned counsel for the petitioner that there was admission on the part of PW2 that the tipper lorry did not cross the yellow line and is not a correct one and the same has been made without any basis. As such the said contention of the learned counsel for the petitioner deserves outright rejection as untenable.
8. The next contention of the learned counsel for the petitioner is that he was not proved to be the driver of the offending vehicle ,also does not deserve any weightage . Of course, it is true that the injured witnesses stated that they did not see the driver of the offending vehicle. But it is not in dispute that the petitioner was not the driver of the tipper lorry bearing registration No.TN-09-D-5009 at the time of accident. Nor was it the case of the petitioner that another person was acting as the driver of the tipper lorry at the time of accident. On the other hand, clear evidence has been adduced on the side of the prosecution through the Investigating Officer and the Motor Vehicles Inspector and other witnesses to connect the petitioner with the accident as the driver of the offending vehicle. There is no contra evidence adduced on the side of the petitioner to the effect that he was not employed by the owner of the offending vehicle or that though employed by the owner of the offending vehicle, he was not the driver incharge of the vehicle at the time of accident and it was another person who drove the vehicle at that point of time. No unambiguous answer has been given by the petitioner when the opportunity was given by examining him under Section 313(1)(b) Cr.P.C, to the effect that he was not the driver of the offending vehicle. All the said facts were properly considered by the courts below and point was rightly decided against the petitioner. This Court finds no defect or infirmity in the finding that the petitioner was the driver of the tipper lorry at the time of the accident in question.
9. The third contention raised by the learned counsel for the petitioner also deserves discountenance, as the same is against the evidence. It is the contention of the learned counsel for the petitioner that the vehicle, of which the petitioner was the driver at the time of accident, was not subjected to the inspection of the Motor Vehicles Inspector and that PW10, the Motor Vehicles Inspector himself, admitted that he did not inspect the said vehicle. But, unfortunately, the petitioner has included a copy of the deposition of PW10 in the typed-set of papers filed along with the petition, which shows that the Motor Vehicle Inspector inspected all the three vehicles involved in the accident. The damage caused to all the three vehicles have also been spoken to by the Motor Vehicles Inspector who deposed as PW10. Therefore, the above said contention raised by the learned counsel for the petitioner as stated supra deserves rejection.
10. In addition to the three contentions discussed supra, the learned counsel for the petitioner would contend that without there being any positive evidence to show that the vehicle driven by the petitioner crossed yellow line and went to the wrong side, the petitioner could not be condemned and punished for the offence for which he was prosecuted. It is the further contention of the learned counsel for the petitioner that only the Mahindra van which was following the 407 van caused the accident by hitting it on its back side and due to that impact the 407 van came into contact with the tipper lorry which came in the opposite direction. Such a contention is not supported by any evidence. The traffic constable in order to clear the traffic marked the position of the three vehicles on the road, before removing them and keeping them on a side of the road. This was clearly spoken to by the Investigating Officer, namely PW15 in his evidence. Nothing against the prosecution or in support of the theory of innocence of the petitioner has been elicited either from him or from any other witness. The trial Court, on proper appreciation of evidence and the appellate Court on proper re-appreciation of evidence, came to the correct conclusion that the tipper lorry which was proceeding in the direction of west to east had crossed the yellow line by one meter and came to the wrong side, whereas the 407 van and the Mahindra van were proceeding in their right direction, namely on the southern side of the road while they were proceeding from east to west. By meticulous examination of the evidence and proper appreciation of the same, the Courts below have arrive at the said conclusion, which cannot be termed either defective or infirm. No infirmity or illegality is found in the judgments of the Courts below. Therefore, the conviction recorded by the trial Court and confirmed by the lower appellate Court deserves no interference.
11. So far as the punishment awarded to each one of the offence is concerned, they are comparatively on the lower side and therefore there is no necessity to interfere with the same.
12. For all the reasons stated above, this Court comes to the conclusion that this criminal revision case deserves dismissal. Accordingly, this criminal revision case is dismissed. Consequently, the connected miscellaneous petitions are closed.
gpa
To
1. The Inspector of Police
R4, Pondy Bazaar P.S.
Traffic Investigation
Chennai
2.IV Metropolitan Magistrate,
Saidapet, Chennai
3. VII Additional and Sessions Judge
Chennai
4.The Public Prosecutor
Madras High Court