IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 29-09-2009 CORAM THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM Crl.R.C.No.1104 of 2007 Mr.A.Irudhayanathan .... Accused/Appellant/ Petitioner Versus State of Tamilnadu Rep.by Inspector of Police, Maraimalai Nagar Police Station Chengalpet District, Crime No.455/2001 .... Complainant/Respondent Respondent Revision filed under Section 401 of Criminal Procedure Code to call for the records and set aside the order dated 29.06.2004 pleased in C.C.No.9/2003 on the file of The Judicial Magistrate Court No.II, Chengalpet and confirming the order dated 09.07.2007 passed in C.A.No.59/2005 on the file of Principal Sessions Court, Chengalpet, set aside the same. For Appellant : Mr.P.Mani For Respondent : Mr. Paul Nobel Devakumar Government Advocate(crl.side) JUDGMENT
The petitioner herein, who is the accused in C.C.No.9 of 2003 on the file of the Judicial Magistrate No.II, Chengalpattu stands convicted for the offence under Section 279 and 304(A) IPC and sentenced to undergo Rigorous Imprisonment for 2 years and to pay a fine of Rs.2000/- in default to undergo 4 months Simple imprisonment. The said conviction and Sentence were confirmed by the Learned Principal Sessions Judge, Chengalpattu in C.A.No.59 of 2003. Aggrieved by the said conviction and sentence, the petitioner has preferred this Revision.
2. The Case of the prosecution is as follows:-
On 19.11.2001 at about 11.30 A.M., the deceased Loganathan was driving motorcycle from Chengalpattu towards Tambaram and the motorcycle was going infornt infront of the Ford motor Company. At that time, the State Transport Corporation bus driven by the accused in a rash and negligent manner, dashed the motorcycle from behind. The bus ran over the deceased and came to halt after 50 feet. As such the deceased Loganthan succumed to the injuries at the spot itself. P.W.1, who is an eye witness preferred the complaint Ex.P1 before P.W.8, the then Sub Inspector of Police at Maraimalai Nagar who inturn registered the case in Crime No.455/2001 for the offence under Sections 279 and 304(A) I.P.C. and prepared Ex.P6 F.I.R. He visited the crime scene and prepared Ex.P7, observation mahazar and he has also prepared Ex.P8, rough sketch.After conducting the inquest and preparing Ex.P9, he sent the dead body of the deceased for post-mortem examination. P.W.7, Dr.Murugesan conducted the post-mortem examination on the dead body of the deceased and gave Ex.P5 post-mortem report. P.W.5, the Motor Vehicle Inspector has examined the bus on the basis of the requisition given by the investigation officer and issued Ex.P2. After completing
the investigation, P.W.9, has laid the Final Report.
3. The prosecution has examined 9 witnesses and marked 9 exhibits and after analysing the evidence, the accused was convicted and sentenced as already stated above by the Judicial Magistrate No.II, Chengalpattu and the same was confirmed by the Pricipal Sessions Judge, Chengalpattu.
4. The learned counsel for the petitioner submitted that even as per the evidence of P.W.3 and P.W.4, who are the eye witnesses the State Transport Corporation bus had come only in a normal speed and accident occurred only due to negligence of the deceased who had suddenly crossed the road in the motor cycle from left to right.
5. Per contra, the learned Prosecutor submitted that as per Ex.P8 rough sketch pertaining to the scene of occurrence, there was a cutting on the right side of the road and the vehicle is permitted to turn to the right through the cutting and the deceased who was riding on the road, by showing the signal and stretching his hand was about to turn to the right side through the cutting, in the median of the road. But before he could take a turn, the bus which was driven in a rash and negligent manner dashed against the motor cycle.
6. This Court has considered the submissions of both side and perused the materials on record.
7. P.W.1, 3 and 4 are eye witnesses of the occurrence. According to P.W.1, the deceased who was driving the motor cycle showed the signal before turning to the right. When the vehicle was about to turn to the right, only at that time the bus came at the direction and dashed the motor cycle. The evidence of P.W.3 is that the deceased who was driving the motor cycle has gone from the left side to the right side of the road and at the place of occurence, there was a cutting in the median. Ofcourse, as per the evidence of P.W.3 and P.W.4, the bus came in the normal speed. On verifying the observation mahazar and rough sketch, it appears that accident has taken place near the cutting in the median of the road, which was provided for the turning of the vehicle. The bus driver ought to have been very careful while driving in the high way. He ought to have noted the vehicle which was to take right turn. Though P.W.3 and P.W.4 stated that the bus came in the normal speed, from the evidence it appears that from the place of impact, the body of the deceased was dragged to the distance of 50 feet and thereafter only the bus had came to a halt. The rash and negligent driving of the bus driver is established from the evidence available. In such circumstances, this Court confirms the conviction on the accused.
8. The learned counsel for the petitioner prays for the lineancy of this Court for the sentence imposed on the petitioner and submitted that the petitioner is in jail for more than four days.
8. This Court already held that the driver has driven in a rash and negligent manner but at the same time it cannot be ruled out that there was no contributory negligence on the part of the deceased. It is the evidence of P.W.3 and P.W.4 that the bus came in the normal speed and the evidence of P.W.3 that the motor cycle went from left to right side of the road. Therefore, it is clear that if the deceased also had been careful before turning to the right side of the road, the accident could have been averted. Though the contributory negligence on the part of the deceased can’t be taken as a ground for acquitting the accused, it could be considered for reducing the sentence imposed on the accused.
In the result, the sentence of imprisonment imposed on the accused is reduced to the period already undergone. With the above modification, this Revision is partly allowed.
arr
To:
Inspector of Police,
Maraimalai Nagar Police Station
Chengalpet District