BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/03/2010 Coram THE HONOURABLE MR.JUSTICE T.MATHIVANAN Criminal Revision Case (MD) No.257 of 2008 and M.P.(MD).No.1 of 2008 Selvaraj . . Petitioner Vs State through The Inspector of Police, Theni Police Station, Theni. . . Respondent This criminal revision is filed against the Judgment dated 12.12.2007 and made in Criminal Appeal No.25 of 2007, on the file of the Principal District and Sessions Judge, Theni confirming the Judgment dated 18.06.2007 and made in C.C.No.202 of 2006, on the file of the learned Judicial Magistrate, Theni. !For petitioner ... Mr.R.R.Kannan for M/s.C.P.Thiru Sangu ^For Respondent ... Mr.P.Rajendran Government Advocate (Crl.Side) :ORDER
This memorandum of criminal revision has been preferred by the
revision petitioner challenging the judgment dated 12.12.2007, and made in
Criminal Appeal No.25 of 2007, on the file of the learned Principal District and
Sessions Judge, Theni District, dismissing the appeal after confirming the
judgment delivered by the learned Judicial Magistrate, Theni, dated 18.06.2007
and made in C.C.No.202 of 2006, finding the criminal revision petitioner is
guilty under Section 304 A convicted thereunder and sentenced to undergo three
months of Rigorous Imprisonment, in default, to pay a fine of Rs.1,000/-.
Aggrieved by the impugned judgment, dated 12.12.2007, and made in Criminal
Appeal No.25 of 2007, the appellant therein, who is the accused in the main
case, has brought this Criminal Revision before this Court.
2. The facts and circumstances which giving rise to the memorandum
of criminal revision may be summarised as briefly as follows:
2.1. That on 15.03.2000, at about 9.00 p.m. when P.W.1 and P.W.2 were
negotiating with each other near shandy gate situated on Theni-Periyakulam road,
the deceased Marimuthu was proceeding in his cycle from south towards north on
the left side of the road. While so, the bus bearing registration No.TN.57-N-
640 driven by its driver in a rash and negligent manner from north towards south
had dashed against the cycle on which the deceased was travelling and as a
result of which, he had sustained multiple grievous injuries and subsequently,
he was removed to Theni Government Hospital by P.W.1 and P.W.2. While he was on
treatment, he had succumbed to injuries at about 10.10 p.m. With regard to the
accident, P.W.1 had lodged a complaint with P.W.13 the Sub Inspector of Police
attached to Theni Police Station and after registering a case in Crime No.329 of
2000 under Section 304A IPC, he himself took up the matter for investigation.
Further investigation was taken up by P.W.14, who is the Inspector of Police
attached to Theni Police Station. In order to establish the case, the
prosecuting agency has examined as nearly as 14 witnesses and during the course
of their examination, Exs.P1 to P8 and M.O.1-cycle were marked. At the end of
the trial, after careful appreciation of the testimonies of the prosecution
witnesses and the documentary evidences, the learned Judicial Magistrate, Theni,
had found the criminal revision petitioner guilty under Section 304A of IPC
convicted thereunder and sentenced to undergo Rigorous Imprisonment for three
months and also to pay fine of Rs.1,000/-. Aggrieved by the impugned judgment,
the present memorandum of criminal revision is filed before this Court.
3. The learned counsel appearing for the revision petitioner has
constructed his argument on only one point. He has not challenged the finding
and conviction made by the learned Judicial Magistrate, Theni as against the
criminal revision petitioner under Section 304A of IPC. On the other hand, he
requested this Court to modify the sentence alone to one under imposing of fine
instead of imposing of three months of Rigorous Imprisonment. In order to
support his argument, he has placed reliance upon the following decisions:
i) (2009) 3 MLJ (Crl) 700 (K.K.Mani v. State rep. by Sub Inspector of
Police, Thalaivasal Police Station, Salem District).
ii) (2009) 7 SCC 353 (Braham Dass v. State of Himachal Pradesh).
4. This Court also carefully gone through the above cited decisions.
In this regard, this Court also lay emphasis on the decisions reported in State
of Karnataka v. A.Joseph (1988) 3 Crimes 452 (Kant.) wherein it is observed that
any conviction under Section 304A IPC, the legislature in its wisdom has given
discretion to the Court to fix up the proper sentence and imprisonment is not a
must merely because human life is lost. In another case, viz., State v.
Madivalappa Fakirappa (2004 CrlJ 3712(Kant) wherein it is observed that Driving
was in rash and negligent manner as road was narrow but speed was high and there
was sign board indicating go-slow. It was held that acquittal of driver by
trial Court has resulted in miscarriage of justice. The accused was, therefore,
convicted but sentence was reduced to the period already undergone. Yet another
case in Nirmal Singh v. State of Haryana (1989) 1 Crimes 398 wherein it is
observed that the accused was convicted under Section 304A of IPC but it was
found that at the time of occurrence the accused was only 24 years old and he
was not a previous convict. His corporal punishment was set aside and he was
sentenced only to a fine of Rs.1,500/- a part of which was paid to heirs of the
deceased.
5. Insofar as this case is concerned, it is obvious to note here
that the offence under Section 304A is committed by the revision petitioner
without any mens rea. In conviction under Section 304A, IPC the interest of
justice would be met if the accused is sentenced to pay a fine instead of jail
sentence, particularly, when a long period (seven years) elapses after the
occurrence before the conviction. This dictum is held in State of Himachal
Pradesh v. Mohinder Singh (1989) 2 Crimes 159 (HP).
6. As rightly observed in the above decisions, the criminal revision
petitioner herein has been working as a driver in the Tamil Nadu State Transport
Corporation. In this connection, the learned counsel appearing for the criminal
revision petitioner would submit that if the sentence of imprisonment is imposed
on the criminal revision petitioner, then it would cause trammel in his service
and he therefore, urged before this Court that instead of imposing the sentence
of imprisonment the sentence of payment of fine alone be imposed. The penal
proviso to Section 304A of IPC is also very clear that whoever causes the death
of any person by doing any rash or negligent act not amount to culpable
homicide, shall be punished with imprisonment of either description for a term
which may extent to two years, or with fine, or with both. Therefore, option is
given to select the mode of punishment which is more suitable depending upon the
nature of the case. The provisions of this section apply to cases where there is
no intention to cause death, and no knowledge that the act done in all
probability would cause death.
7. On appreciation of the evidences both oral and documentary which
are available in the records, this Court is of the considered view that the
finding and conviction under Section 304A of IPC may be confirmed and instead of
imposing the sentence to undergo imprisonment by a period of three months as
decided by the learned Judicial Magistrate which was subsequently confirmed by
the learned Principal District and Sessions Judge, Theni, the accused may be
imposed Rs.1,000/- towards fine.
8. Under those circumstances, the finding and conviction under
Section 304A of IPC as against the accused is confirmed. The sentence is
modified as detailed below:
(i) The sentence of imprisonment to undergo RI of three months is set
aside.
(ii) the sentence of payment of fine to the tune of Rs.1,000/- is
confirmed. Since, the fine amount has already been paid by the revision
petitioner on receipt, he is set at liberty. The bail bond, if any, executed by
him or on his behalf are cancelled. Consequently, connected miscellaneous
petition is closed.
srm
To
1.The Judicial Magistrate, Theni.
2.The Principal District and Sessions Judge, Theni.