BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/04/2007 CORAM THE HONOURABLE MR. JUSTICE P. MURGESEN CRL.RC.(MD) No.535 of 2005 Valavan .. Petioner accused Vs State rep. By The Inspector of Police Pattukottai Police Station Thanjavur District .. Respondent complainant Criminal Revision Case filed under Section 397 r/w 401 of Cr.P.C. against the order passed by the Judicial Magistrate Court, Pattukkottai in C.C.No.988 of 2002 dated 25.5.2005 as modified by the Judgment in C.A.No.34 of 2005 dated 29.6.2005 by the Addl.Sessions court (Fast Track Court No.II), Pattukkottai. !For Petitioner : Mr.V.Bharathidasan ^For Respondent : Mr.Siva Iyyappan, Govt. Advocate (Crl.Side) :JUDGMENT
The appeal is directed against the order passed by the Judicial Magistrate
Court, Pattukkottai in C.C.No.988 of 2002 dated 25.5.2005 as modified by the
Judgment in C.A.No.34 of 2005 dated
29.6.2005 by the Addl.Sessions court (Fast Track Court No.II), Pattukkottai.
2.The brief facts of the case as projected by the prosecution are as
follows:
i)On 16.4.2001, P.W.1-Sundaravadivelu was travelling in a Ambassador Car
bearing Reg.No.TN 01 A 6105. P.W.2 is the owner of the car and the car was
driven by one Senthilkumar, Driver. When the vehicle was nearing Verakurichi
bridge, the bus bearing Reg. No.TN B 1377 driven by the accused dashed against
the Ambassador Car. As a result of the accident, the driver of the Ambassador
Car namely Senthilkumar was injured and he was immediately taken to hospital
by another Taxi Driver-P.W.3. There he was reported dead. P.Ws 6 & 7 are the
relatives of Senthilkumar, Driver identified the dead body in the hospital.
ii)P.W.1-Sundara Vadivelu was treated by P.W-9, Assistant Surgeon. He
found the following injuries.
“1.Sutured wound on the left side of forehead.
2.1 x . x . sized abrasions on the forehead.
3.Pain on the leg and
4.Pain on the neck.”
Ex.P6 is the Accident Register.
iii)At time of occurrence P.W.12 was the Special Sub Inspector of Police
attached to Pattukottai Police Station. He deposed that on 16.4.2001, at about
7.00 p.m. P.W.1-Sundaravedivelu appeared before him and gave a complaint-
Ex.P1. P.W.12 received the complaint and registered the same in Station Crime
No.321 of 2001 under Sections 279, 337 & 304 -A IPC. Ex.P8 is the printed
F.I.R. and placed case before the Inspector of Police for further investigation.
iv)P.W.13-Inspector of Police attached to Pattukottai Police Station took
up further investigation in this case. He visited the scene of occurrence on
17.4.2001, prepared the observation mahazar-Ex.P2 and the rough sketch-Ex.P9 in
the presence of witnesses. He also held inquest on the dead body of the
deceased Senthilkumar in the presence of witnesses. Ex.P10 is the inquest
report. Then he sent the dead body of the deceased for postmortem through the
Head Constable-P.W.11.
v)Since the Doctor who conducted the post mortem on the dead body, Doctor
P.W.10, attached to Thanjavur Medical College Hospital had noticed the
following injuries sustained by the deceased.
“INJURIES:
1.Bleeding from both nostrils and ears.
2.Multiple abrasions of variable sizes present over the lateral and medial
aspect of right upper arm with fracture deformity at the level of upper 1/3rd
of humerus.
3.Laceration 8×1 muscle deep present over the upper aspect of (suprascapular
region) of right shoulder.
4.Multiple abrasions of varying sizes present over the anterior aspect of upper
third of right leg.
5.Abrasion of 18×1 muscle deep vertically placed on the right midaxillary line
of chest.”
Ex-P7 is the Post Mortem Certificate. The Doctor opined that the deceased
would appear to have died of shock and haemorrhage due to multiple injuries.
vi)Ex.P4 is the report submitted by P.W.8-Motor Vehicle Inspector relating
to the vehicle TN01-6105 and Ex.P5 is the report relating to the vehicle 49-B
1377. P.W.8 gave opinion that the accident has not occurred due to any
mechanical defects in both the vehicles.
vii)P.W.13- Inspector of Police in continuation of his investigation,
examined the Motor Vehicle Inspector-P.W.8 and recorded his statement. He also
examined P.W.11-Head Constable and P.W.12-Special Sub Inspector of Police and
recorded their statements. After completing the investigation on 18.4.2001 and
filed the charge sheet under Sections279, 337, 304-A IPC.
3.The prosecution in order to bring home the charges against the accused,
examined P.Ws 1 to 13 and filed Ex.P1 to P10.
4.When the accused was questioned under Section 313 Cr.P.C. in respect of
the incriminating materials appearing against him, he denied the charges
levelled against him and said that he has been falsely implicated in the case.
5.On consideration of the entire evidence on record, the learned Judicial
Magistrate Court, Pattukkottai in C.C.No.988 of 2002 dated 25.5.2005, found the
accused guilty under Sections 279, 337 & 304-A IPC and for the first charge,
sentenced him to undergo six months rigorous imprisonment, in default one month
simple imprisonment; for for the second charge sentenced him to under three
months simple imprisonment along with the fine of Rs.500/- in default two weeks
simple imprisonment and for the third charge he was sentenced to undergo one
year rigorous imprisonment along with the fine of Rs.4,000/- in default two
months simple imprisonment. The learned trial Judge ordered the above sentences
to run concurrently.
6.Aggrieved over the Judgment of the learned Judicial Magistrate, he
preferred appeal in C.A.No.34 of 2005. The learned Appellate Judge acquitted
him of the offence under Section 279 IPC and confirmed the sentences under
Sections 337 and 304-A IPC.
7.Challenging the Judgment of the learned Appellate Judge, the above
Revision Petition has been filed by the petitioner/accused.
8.Point for Determination:
1.whether the accused is guilty of the offence
under Sections 337 and 304-A IPC ?
POINTS FOR DETERMINATION:
9. P.W.2 is the owner of the car bearing Reg.No.TN 01 A 6105. On
16.4.2001, at about 13 hours, P.W.1-Sundaravadivelu was travelling in the
Ambassador Car of P.W.2 and the car was driven one Senthilkumar, Driver. When
the car was nearing Verakurichi bridge, the bus bearing Reg. No.TN B 1377 driven
by the accused dashed against the said Ambassador Car. As a result of the
accident, the driver of the Ambassador Car namely Senthilkumar was injured and
he was immediately taken to hospital by another Taxi Driver-P.W.3. There he
was reported dead. P.Ws 6 & 7 are the relatives of Senthilkumar, Driver
identified the dead body in the hospital.
10.Then P.W.13-Inspector of Police attached to Pattukottai Police Station
sent the dead body of the deceased for postmortem through the Head Constable-
P.W.11. Since the Doctor who conducted the post mortem on the dead body Doctor
P.W.10, attached to Thanjavur Medical College Hospital had found about the
following injuries sustained by the deceased.
“INJURIES:
1.Bleeding from both nostrils and ears.
2.Multiple abrasions of variable sizes present over the lateral and medial
aspect of right upper arm with fracture deformity at the level of upper 1/3rd
of humerus.
3.Laceration 8×1 muscle deep present over the upper aspect of (suprascapular
region) of right shoulder.
4.Multiple abrasions of varying sizes present over the anterior aspect of upper
third of right leg.
5.Abrasion of 18×1 muscle deep vertically placed on the right midaxillary line
of chest.”
Ex-P7 is the Post Mortem Certificate. The Doctor opined that the deceased
would appear to have died of shock and haemorrhage due to multiple injuries.
11.The evidence of P.W.8- Motor Vehicle Inspector would show that the
accident had occurred not due to any mechanical defects in both the vehicles.
12.The learned counsel for the Revision Petitioner/ accused vehemently
contended that the identity of the accused was not proved and in this regard, he
relied on the case in VALLIKAN Vs. STATE REP. BY THE INSPECTOR OF POLICE/
TRAFFIC
INVESTIGATION, NORTHERN RANGE, MADRAS reported in 1995-2-L.W.(Crl.) 703.
13.In the above said case, it was found that since the identification of
the accused was not established, the conviction was set aside. In the case on
hand also, P.W.1 one the victim who was travelling in the Ambassador Car did not
say that the other vehicle viz. bus bearing Reg. No. 49-B 1377 was driven by
the accused. Even P.Ws 2,3,4 5 & 6 were not able to state that the bus was
driven by the accused/revision petitioner herein. Even the Investigating
Officer had not investigated the case as to who drove the bus, but, he could
state only about the arrest of the accused.
14.Without ascertaining the driver of the bus which was involved in the
accident, the mere arrest of the accused is not sufficient to connect the
accused to the crime. There should have been investigation in the Office of the
Transport Corporation as to who drove the bus 49-B 1377 on the date of
accident. But absolutely, there is no evidence on record to show that the said
bus was driven by the Revision Petitioner/accused. Even the trip sheet was not
seized by the Investigating Officer. The prosecution has filed to prove that
the bus was driven by the
accused on the fateful day.
15.When the charge is that the accused drove the vehicle on the date of
occurrence, there is no specific question under Section 313 of the Criminal
procedure Code for driving the vehicle by the revision petitioner. Probably
there is no evidence from any of the witnesses, that question was not framed
under Section 313 of the Criminal Procedure Code. Further, in this case the
F.I.R. was registered on 16.4.2000, but the F.I.R. reached the Magistrate Court
on 29.4.2001 and the prosecution is unable to say about the delay in
despatching the F.I.R. to the Court.
16.I find no iota of evidence to accept the case of the prosecution that
the Revision Petitioner/accused drove the vehicle at the time of accident. When
such a vital aspect is lacking in this case, the conviction imposed against the
revision petitioner/accused cannot be sustained. Therefore, the Revision
Petition has to be allowed.
17.In the result, the Criminal Revision Petition is allowed by setting
aside the order passed by the Judicial Magistrate Court,
Pattukkottai in C.C.No.988 of 2002 dated 25.5.2005 as modified by the Judgment
in C.A.No.34 of 2005 dated 29.6.2005 by the Addl.Sessions court (Fast Track
Court No.II), Pattukkottai.
To
1.The Judicial Magistrate Court, Pattukkottai.
2.The Addl.Sessions court (Fast Track Court No.II), Pattukkottai.
3.The Inspector of Police,Pattukottai Police Station
Thanjavur District
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.