IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.3.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.R.C.No.1494 of 2007 Selvaraj .. Petitioner Vs. Inspector of Police, Mettur Police Station, Salem District. Cr.No.12 of 2005 .. Respondent Criminal Revision Case against the judgment dated 22.8.2007 in Crl.A.No.61 of 2007 on the file of the 1st Additional Sessions Court, Salem District, against the order dated 3.4.2007 in C.C.99 of 2005 on the file of the Court of Judicial Magistrate-1, Mettur. For petitioner : Mr.C.Prakasam For respondent: Mr.S.Rajendiran, Govt. Advocate (Crl. Side) ORDER
The Crl.R.C. is filed against the judgment dated 22.8.2007 in Crl.A.No.61 of 2007 on the file of the 1st Additional Sessions Court, Salem District, confirming the conviction and sentence dated 3.4.2007 in C.C.99 of 2005 on the file of the Court of Judicial Magistrate-1, Mettur, whereby the revision petitioner/accused was convicted for the offence under Section 279 IPC and sentenced to undergo three months’ rigorous imprisonment and he was also convicted for the offence under Section 338 PC and sentenced to undergo six months’ rigorous imprisonment and also convicted for the offence under Section 304-A (2 counts) IPC and sentenced to undergo rigorous imprisonment for one year (2 counts) and to pay a fine of Rs.500/- (2 counts), in default to undergo six months’ simple imprisonment. The sentences were ordered to run concurrently.
2. The skeleton of the case of the prosecution is as follows:
On 1.2.2005 at about 4 a.m., P.W.1 Sinrasu, P.W.2 Palanisamy, P.W.6 Samraj and P.W.11 Mani were proceeding from Mettur to Bhavani. When they were proceeding in the mud road, the revision petitioner/accused drove his vehicle bearing Registration No.TN-39-Q-7475 in a rash and negligent manner near the TANSI factory and dashed against the pedestrian who were waking on the extreme left end of the Road and caused grievous injuries to P.W.1 and caused the death of Pitchai Muthu and Pandian. Immediately, P.W.1 gave a complaint to P.W.14 Sub-Inspector of Police and registered the complaint at 6.45 a.m. in Cr.No.12 of 2005 for the offences under Sections 279, 337 and 304-A IPC. and prepared FIR Ex.P-7. P.W.13 Dr.Rajarajan examined P.W.1 and he issued Ex.P-6 wound certificate. P.W.15 Inspector of Police took up the case for investigation and went to the place of occurrence. He prepared Ex.P-2 observation mahazar in the presence of P.W.8 Venu and P.W.9 Thangavel and drew rough sketch Ex.P-10. He conducted inquest over the body of the deceased persons Pitchai Muthu and Pandian and Exs.P-8 and P-9 are the inquest reports respectively. He sent the dead bodies of the deceased persons for post-mortem. P.W.12 Dr.Selvakumar conducted autopsy and issued Exs.P-4 and P-5 post-mortem reports in respect of both the deceased, namely Pitchai Muthu and Pandian, respectively. The investigating officer also gave a requisition to P.W.10 Anandkumar to inspect the vehicle involved in the accident and he inspected the vehicle and issued Ex.P-3 report. The investigating officer examined the other witnesses and concluded his investigation and filed the charge sheet against the revision petitioner/accused for the offences under Sections 279, 338 and 304-A (2 counts) IPC.
3. The trial Court, after following procedures, framed necessary charges against the revision petitioner/accused. Since the revision petitioner/accused pleaded not guilty, the trial Court examined P.Ws.1 to 15 and marked Exs.P-1 to P-10 and convicted and sentenced him as stated above. Challenging the judgment of conviction and sentence passed by the trial Court, the revision petitioner/accused preferred appeal before the appellate Court. The appellate Court, after hearing the arguments advanced by both sides, confirmed the judgment of conviction and sentence of the trial Court, against which, the present Crl.R.C. is preferred by the revision petitioner/accused.
4. Challenging the conviction and sentence passed by both the Courts below, learned counsel for the revision petitioner/accused submitted that the place and time of the occurrence have not been proved by the prosecution. He further submitted that since the trial Court has not given a finding for rash and negligent driving of the vehicle by the revision petitioner/accused, the offence under Section 304-A IPC is not made out. He also submitted that if at all this Court finds him guilty of the offences, he prayed for leniency in the sentence of imprisonment. To substantiate his contentions, he relied on the various judgments and prayed for allowing the Crl.R.C.
5. Learned Government Advocate (Crl. Side) appearing for the respondent-Police submitted that P.W.1 is the injured eye-witness and he has congently deposed about the nature of the accident, and his evidence is corroborated by Ex.P-2 observation mahazar and Ex.P-10 rough sketch, which clearly proves the place and time of occurrence. He further submitted that it is true that the other witnesses, namely P.W.6 Samraj and P.W.11 Mani turned hostile, but the injured eye-witness P.W.1’s evidence is corroborating the complaint and hence there is no need to assail the conviction and sentence passed by both the Courts below and he prayed for dismissal of Crl.R.C.
6. Considering the rival submissions of both sides and while perusing the materials available on record, it is true that P.W.1 is an injured eye-witness, P.W.2 is an eye-witness and P.Ws.3 to 5 are not the eye-witnesses and they are the relatives of P.W.1 as well as the deceased Pandian and Pitchai Muthu. P.Ws.6 and 11 are not supporting the case of the prosecution. In such circumstances, it is the duty of the prosecution to prove the time and place of occurrence and the manner in which the incident has taken place, beyond reasonable doubt.
7. At this juncture, it is appropriate to consider the evidence of P.W.1, who is the injured eye-witness. P.W.7 is the driver of the Ambulance who took P.W.1 and the dead bodies of the deceased Pandian and Pitchai Muthu to hospital, and his evidence as well as Ex.P-2 observation mahazar and Ex.P-10 rough sketch, have clearly proved that the accident has occurred opposite to TANSI factory and so, I am of the view that the prosecution has proved the place of occurrence. The argument advanced by the learned counsel for the revision petitioner/accused that the place of occurrence has not been proved by the prosecution, does not merit acceptance.
8. Now, this Court has to decide as to whether the time of occurrence has been proved by the prosecution. From the evidence of P.W.1, it is clear that himself and others were working as Coolie in “Rick Vandi” in Kollekale at Karnataka and they alighted at Mettur and were proceeding in Bhavani Road and at that time, the vehicle came behind in a rash and negligent manner and dashed against them. In Ex.P-1 complaint, P.W.1 has specifically mentioned the time of occurrence as about 4.30 a.m. The evidence of P.W.1 has clearly proved the time of occurrence. Hence, I do not find any merit in the argument advanced by learned counsel for the petitioner that the time of occurrence has not been proved by the prosecution.
9. Now, this Court has to decide as to whether the evidence is sufficient to convict the revision petitioner/accused for rash and negligent driving for having caused grievous injuries on P.W.1 and fatal injuries to Pandian and Pitchai Muthu.
10. Learned counsel for the revision petitioner/accused relied upon the decision of the Supreme Court reported in 1973 SCC (Cri) 664 (Nageshwar Shri Krishna Ghobe Vs. State of Maharashtra), wherein, the Supreme Court held as follows:
“6. In cases of road accidents by fast moving vehicles it is ordinarily difficult to find witnesses who would be in a position to affirm positively the sequence of vital events during the few moments immediately preceding the actual accident, from which its true cause can be ascertained. When accidents take place on the road, people using the road or who may happen to be in close vicinity would normally be busy in their own pre-occupations and in the normal course their attention would be attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. It is only then that they would look towards the direction of the noise and see what had happened. It is seldom and it is only a matter of coincidence that a person may already be looking in the direction of the accident and may for that reason be in a position to see and later describe the sequence of events in which the accident occurred. At times it may also happen that after casually witnessing the occurrence those persons may feel disinclined to take any further interest in the matter, whatever be the reason for this disinclination. If, however, they do feel interested in going to the spot in their curiosity to know some thing more, then what they may happen to see there, would lead them to form some opinion or impression as to what in all likelihood must have led to the accident. Evidence of such persons, therefore, requires close scrutiny for finding out what they actually saw and what may be the result of their imaginative inference. Apart from the eye-witnesses, the only person who can be considered to be truly capable of satisfactorily explaining as to the circumstances leading to accidents like the present is the driver himself or in certain circumstances to some extent the person who is injured. In the present case the person who died in the accident is obviously not available for giving evidence. The bhaiya (Harbansingh) has also not been produced as a witness. Indeed, failure to produce him in this case has been the principal ground of attack by Shri Pardiwala and he has questioned the bona fides and the fairness of the prosecution as also the trustworthiness of the version given by the other witnesses.”
11. Relying on the said decision reported in 1973 SCC (Cri) 664 (cited supra), learned counsel for the petitioner/accused submitted that the rash and negligent driving has to be determined not only by evidence, but also other factors.
12. Learned counsel for the petitioner/accused also relied on the decision of the Kerala High Court reported in 1986 Cri.L.J. 511 (P.Rajappan Vs. State of Kerala), wherein, it was observed as follows:
“Speed alone is not the criterion for deciding rashness and negligence on the part of the driver. A motor vehicle is intended to be driven in speed. The relationship between speed and rashness or negligence depends upon the place and time. In a straight wide road, where obstructions from other vehicles or pedestrians are not there, it cannot be said that driving in speed or absence of sounding horn by itself will amount to rashness or negligence.”
13. As already stated, P.Ws.3 to 5 are not the eye-witnesses and they are the relatives of P.W.1. P.Ws.1 and 2 are the eye-witnesses and P.Ws.6 and 11 are not supporting the case of the prosecution. P.W.1 is the injured eye-witness. The evidence of single eye-witness is sufficient to convict the accused, provided his evidence must be cogent, natural, trustworthy and convincing and then only, the evidence of single eye-witness is reliable. While considering the evidence of P.W.1 along with P.W.2, I do not find any reason for discarding their evidence, because, there was no previous enmity between them. In such circumstances, I am of the view that the evidence of P.Ws.1 and 2 has clearly proved that the occurrence has taken place due to rash and negligent driving of the revision petitioner/accused.
14. Furthermore, on a perusal of Ex.P-10 rough sketch, it is seen that the place of occurrence has been mentioned as mud road, which shows that the revision petitioner/driver has driven the vehicle in a rash and negligent manner and has gone to the extreme left and dashed against the persons who were walking in the mud road. This is also an adding circumstance to prove that the revision petitioner/accused has driven the vehicle in a rash and negligent manner and gone to the extreme left of the mud road and dashed against the deceased-victim persons as well as P.W.1 and caused fatal injuries on the deceased persons and grievous injury on P.W.1. Both the Courts below have considered these aspects in proper perspective and came to the correct conclusion. The accused is guilty of the offence under Section 279 IPC.
15. As already stated, P.W.1 is the injured eye-witness, P.W.2 is an eye-witness and their evidence corroborated with each other. Ex.P-10 rough sketch proved the place of occurrence which was on the mud road, and this shows that during morning hours, at about 4.30 a.m., the revision petitioner/accused drove the vehicle in a rash and negligent manner to the extreme left side of the road and dashed against the pedestrians and two of them died on the spot. P.W.1 sustained grievous injury. Hence, I do not find any reason for setting aside the findings of the Courts below and the finding of the Courts below that the revision petitioner/accused drove the vehicle in a rash and negligent manner and caused such accident, is liable to be confirmed. Hence, I am of the view that the prosecution has proved that the revision petitioner/accused drove the vehicle in a rash and negligent manner and caused accident and so, the prosecution has proved that he is guilty of the offence under Section 279 IPC and for having caused grievous injury to P.W.1, he is guilty of the offence under Section 338 IPC and for causing fatal injuries on the deceased and pedestrians, he is guilty of the offence under Section 304-A (2 counts) IPC.
16. Because of the rah and negligent driving of the revision petitioner/accused, he caused grievous injury on P.W.1 and hence, he is guilty of the offence under Section 338 IPC and for having caused fatal injuries on Pandian and Pitchai Muthu, he is guilty of the offence under Section 304-A (2 counts) IPC.
17. The trial Court and the first appellate Court have considered the materials available on record and came to the correct conclusion that the revision petitioner/accused is guilty of the offences under Sections 279, 338 and 304-A (2 counts) IPC. So, the conviction imposed by the Courts below for the said offences, is confirmed.
18. Considering the quantum of sentence imposed by both the Courts below, it is to be noted that the revision petitioner/accused was moving on the vehicle without sounding horn and drove it in a rash and negligent manner and dashed against the pedestrians and caused injuries.
19. Learned counsel for the petitioner/accused submitted that since the Court came to the conclusion that the petitioner is guilty of the offences under Sections 279, 338 and 304-A (2 counts) IPC, he prayed for leniency in the quantum of sentence. He relied on the decision of the Supreme Court reported in 1995 SCC (Cri) 675 (A.P.Raju Vs. State of Orissa), in which, the occurrence took place about 15 years ago and the appellant therein was on bail for more than eight years, and the Supreme Court directed to release him under Section 360 Cr.P.C. on probation of good conduct, be of good behaviour and keep peace for a period of one year and Section 4 of the Probation of Offenders Act, was invoked.
20. Learned counsel for the revision petitioner/accused also relied on the decision of the Supreme Court reported in 2006 (2) SCC (Cri) 330 (Munni Kachhi Vs. State of M.P.), in which, the incident took place 18 years back and the appellant therein was suffering from serious ailment and offered to pay Rs.15,000/- as compensation to the heirs of the deceased, and hence, sentence was reduced to six months from 1-1/2 years.
21. Learned counsel for the petitioner/accused also relied on the decision of the Supreme Court reported in 2008 (3) SCC (Cri) 456 (Manish Jalan Vs. State of Karnataka), in which, the offences under which the appellant therein was convicted was under Sections 279 and 304-A IPC and the offences not being compoundable under Section 320 Cr.P.C., lenient view was taken by the Supreme Court and the sentence of imprisonment was reduced to the period already undergone by him, with the condition of payment of Rs.1 lakh to the mother of the deceased therein, failing which, Section 431 Cr.P.C. would be attracted.
22. The citations reported in 1995 SCC (Cri) 675 and 2006 (2) SCC (Cri) 330 (both cited supra), are not applicable to the facts of the present case. In the present case, the accident took place on 12.1.2005, and now we are in 2011. In the decision reported in 2008 (3) SCC (Cri) 456 (cited supra), it was in between complainant and the victim and the accused and parties have compromised the case and then only they have filed application for compounding the offence, but there is no provision for compounding the offence under Sections 279 and 304-A IPC, and hence, the Apex Court invoked Article 142 of the Constitution of India and granted leniency by directing the accused to pay Rs.1 lakh to the mother of the deceased, and the sentence of imprisonment was reduced to the period already undergone by him and hence, this citation is also not applicable to the facts of the present case.
23. In the present case, at the time of the accident, the revision petitioner/accused was 40 years and he is having wife and two children and he is the sole breadwinner of the family. Learned counsel for the revisions petitioner/accused stated that the revision petitioner is ready to pay compensation to the victim’s family instead of going to jail.
24. Considering the said submissions, the period of sentence imposed on the revision petitioner/accused is reduced to six months’ (2 counts) rigorous imprisonment from one year (2 counts). The fine amount ordered under Section 304-A IPC (2 counts) is increased from Rs.500/- (2 counts) to Rs.25,500/- (two counts), and the total fine amount is Rs.51,000/-, of which, Rs.25,000/- each shall be paid by the trial Court to the family of the deceased Pandian and Pitchai Muthu.
25. In the result:
(a) The Criminal Revision Case is dismissed.
(b) The conviction of the revision petitioner/accused for the offences under Sections 279, 338 and 304-A (2 counts) IPC, is confirmed.
(c) The sentence of imprisonment imposed on him for the offence under Section 304-A (2 counts) IPC, is reduced to six months (2 counts) rigorous imprisonment from one year (2 counts) and the sentences imposed for the offences under Section 279 and 338 IPC are confirmed.
(d) The sentences imposed on the revision petitioner/accused shall run concurrently.
(e) The fine amount imposed for the offence under Section 304-A (2 counts) IPC, is increased from Rs.500/- (2 counts) to Rs.25,500/- (2 counts) and the total fine amount is Rs.51,000/-, of which, the trial Court is directed to pay Rs.25,000/- each to the family of the deceased Pandian and Pitchai Muthu.
(f) The period of sentence already undergone by the revision petitioner/accused shall be set off under Section 428 Cr.P.C.
(g) Since the revision petitioner/accused is on bail, the trial Court is directed to take steps to secure his custody to undergo the remaining period of sentence.
cs
To
1. The First Additional Sessions Judge, Salem.
2. The Judicial Magistrate No.1, Mettur.
3. Inspector of Police,
Mettur Police Station,
Salem District.
Cr.No.12 of 2005
4. The Public Prosecutor, High Court, Madras.
5. The Record Keeper, Criminal Section, High Court,
Madras