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SARAVANAN versus STATE

High Court of Madras

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Saravanan v. State - Crl. RC. No.512 of 2005 [2007] RD-TN 1904 (12 June 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED : 12.06.2007

CORAM:

THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Crl. R.C. No.512 of 2005

Saravanan .. Petitioner vs.

State

rep by The Inspector of Police,

Vishnukanchi Police Station,

Kanchieepuram. .. Respondent Prayer:

This Revision petition has been preferred against judgment dated dated 12.4.2005 in Crl.A.No.125 of 2004 passed by the Additional Sessions Judge, FTC-No.II, Kancheepuram, confirming the judgment in C.C.No.15 of 2002 on the file of the Judicial Magistrate No.I, Kancheepuram, dated 29.10.2004. For Petitioner : Mr.M.Venkateswaran

For Respondent : Mr.V.R.Balasubramanian, Additional Public Prosecutor ORDER



This revision has been preferred against the judgment in C.A.No.125 of 2004 on the file of the Additional Sessions Judge, FTC.No.II, Kancheepuram, which had arisen out of the judgment in C.C.No.15 of 2002 on the file of the Judicial Magistrate No.I, Kancheepuram. The accused has been charged under Section 304(A) IPC and also under Section279 IPC.

2. According to the prosecution, on 6.11.2001 at about 7.40 am the accused had driven the Tamil Nadu Government bus bearing registration No.TN 21 N 0030 from Ekanampet to Gangaikondan Mandapam, in a rash and negligent manner and dashed against the cyclist by name Neelagandan, aged 12 years causing grievous injury, which resulted in his instantaneous death.

3.After taking cognizance of the offence, the learned Judicial Magistrate issued summons to the accused and on his appearance copies under Section 207 of Cr.P.C., were furnished to him and when questioned the accused pleaded not guilty. On the side of the prosecution, P.W.1 to P.W.11 were examined and Ex.P.1 to Ex.P.11 were marked and M.O.1 and M.O.2 were marked.

4.P.W.1 is the father of the victim boy Neelagandan. He is not an eye witness to the occurrence. After knowing the accident he went to the place of accident and saw his son lying on the road, dead. Ex.P.1 is the complaint preferred by him.

5.P.W.2 has also seen the injured boy after the occurrence. He is a witness in Ex.P.2-mahazar.

6.P.W.3 is an occurrence witness. According to him, at the time of the accident, he was proceeding from East to West in T.K.Nambi Street and that the boy was proceeding from West to East on his cycle on the extreme left hand side of the road and the bus was driven by its driver in rash and negligent manner from East to West and at the place of occurrence the bus hit the boy and ran over on his head causing instantaneous death.

7.P.W.4 is also not an ocular witness, she is the mother of the victim boy. P.W.4 would say that after hearing the accident she went and saw a group of persons at the place of occurrence.

8.P.W.5 is the Motor Vehicle Inspector, who had inspected the vehicle which involved in the accident on 6.11.2001 and about 12.40 pm. According to him, the accident was not due to any mechanical defect. Ex.P.6 is his report.

9.P.W.7 is the conductor of the ill-fated bus. He would identify the accused as the driver, who had driven the bus which involved in the accident.

10.P.W.8 has not supported the case of the prosecution. Hence he was treated as a hostile witness.

11.P.W.9 is the doctor, who had conducted autopsy on the corpse of the victim. Ex.P.7 is the post-mortem report. According to her, the death has occurred only due to the fracture on the skull of the victim.

12.P.W.10 is the then Sub-Inspector of Police Vishnukanchi Police Station, who had registered the case under Cr.No.74 of 2001 on the basis of the complaint preferred by P.W.1 under Section 274 and 304A IPC. He had visited the place of occurrence and prepared Ex.P.10-observation mahazar in the presence of P.W.2. He had also drawn a rough sketch-Ex.P.9. He has examined the witnesses and recorded their statements. He has arrested the accused and released him on bail on the same day.

13.P.W.11 is the successor of P.W.10. After following the formalities, and after completing the investigation, filed the charge sheet on 23.11.2001 against the accused under Section 279 & 304A IPC.

14.After going through the evidence both oral and documentary let in before the trial Court, the learned trial Judge has held that the accused is guilty under Section 279 IPC and also under Section 304A IPC and convicted and sentenced the accused under Section 279 IPC to pay a fine of Rs.600/- with default sentence and also convicted and sentenced the accused under Section 304A IPC to undergo 4 months RI and slapped a fine of Rs.1,500/- with default sentence. Aggrieved by the findings of the learned trial Judge, the accused preferred an appeal in C.A.No.125 of 2004 before the Additional Sessions Judge, FTC-II, Kancheepuram. The first appellate judge after scanning the evidence and after hearing the learned counsel appearing for the appellant as well as the learned public prosecutor, has held that there is no material on record to interfere with the findings of the learned trial judge, and accordingly dismissed the appeal, which necessitated the accused to prefer this revision.

15.Now the point for determination in this appeal is whether the findings of the first appellate Court in C.A.No.125 of 2004 on the file of the Additional Sessions Judge, FTC.No.II, Kancheepuram, is liable to be set aside for the reasons stated in the memorandum of revision petition?

16.The point: 16(a) The learned counsel appearing for the revision petitioner would contend that only on the basis of the evidence of P.W.3, sole eye witness to the occurrence, the Courts below have convicted the accused under Section 279 & 304A IPC and that even according to P.W.3, except by saying that at the time of the occurrence the accused was driving the bus in a rash and negligent manner he has not given any other details regarding the accident in his chief examination. But only relying on the deposition of P.W.3 in the cross-examination, the learned trial Judge has convicted the accused. 16(b) P.W.3 in his evidence both in chief-examination as well as in the cross-examination has categorically deposed to the effect that at the time of occurrence the victim boy who was riding on his cycle was proceeding from West to East on the extreme left hand side of the road and that the accused who was driving the ill-fated bus was proceeding from East to West in a high speed and at the place of occurrence, the accused had dashed against the boy who was on his cycle and due to the impact the boy was thrown away and fell down from the cycle and the right rear wheel of the bus ran over on the head of the boy causing fracture in the skull resulting his instantaneous death. The evidence of P.W.3 coupled with the evidence of the doctor P.W.9, who had conducted autopsy on the corpse of the boy will go to show that the boy died due to the fracture on the skull. A perusal of the rough sketch produced by the prosecution and marked as Ex.P.9 will reveal that in what manner the accident would have been occurred. The ill-fated bus is shown on the extreme right hand side of the road at the place of occurrence in the rough sketch. Admittedly, ill-fated bus was proceeding on T.K.Nambi Street from East to West and the unfortunate boy, who was proceeding from West to East on the opposite direction in the same road. It is seen that the corpse of the boy and the cycle were thrown on the left hand side of the mud road. But the bus is shown standing on the wrong side of the road. The explanation given by the learned counsel for the revision petitioner is that at the time of accident, the boy, who was riding on his cycle, took a swerve to his right and came to the middle of the road which resulted in the accident. If it is so, this explanation would have been given by the accused while he was examined in 313 questioning. But to our dismay the driver has not given any explanation of this kind while incriminating circumstances were put to him when examined under Section 313 of Cr.P.C. Further, as per the evidence of Motor Vehicle Inspector-P.W.8 the accident had not occurred due to any mechanical defect. Under such circumstances, it cannot be said that both the Courts below have come to an erroneous conclusion that the accident had occurred due to the rash and negligent act of the accused. 16(c) The only error both the Courts below have committed, as admitted by the learned Additional Public Prosecutor, is that both the Courts have convicted the accused both under Section 279 & 304A IPC, which cannot be sustained. Section 279 IPC reads as follows: "Rash driving or riding on a public way: Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both." Section 304A IPC reads as follows:

"Causing death by negligence:

Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." So, under the both above said provisions of law, if a person acts in a rash and negligent manner he is liable to be punished. According to the prosecution, the accused had driven the vehicle in a rash and negligent manner and caused the death of the victim. So he is liable to be prosecuted only under Section 304A IPC and cannot be tried and punished under both the provisions of law i.e., under Section 279 IPC and also under 304A IPC. 16(d) Hence, I am of the view that the conviction and sentence imposed against the accused under Section 279 IPC is liable to be set aside. Now coming to the punishment, the learned counsel for the revision petitioner would contend that the petitioner is a driver in the transport corporation and that he was inside for more than a week after the conviction and that if the conviction and sentence are confirmed he may have to loose his job resulting his family thrown in to lurch. Taking into consideration the plight of the family of the accused, I am of the view that the sentence imposed alone can be modified while confirming the conviction. Point is answered accordingly.

17. In the result, the revision is allowed in part and the conviction and sentence imposed on the revision petitioner under Section 279 IPC in C.A.No.125 of 2004 on the file of the Additional Sessions Judge, FTC-No.II, Kancheepuram, is hereby set aside. The accused is convicted under Section 304A IPC and sentenced to the period already undergone instead of 4 months RI but the fine is enhanced from Rs.1,500 to Rs.10,000/- in default to undergo 4 months SI. On collection of the entire fine amount, it is ordered that the Legal Representatives of the victim are entitled to withdraw the same as compensation under Section 357(1) Cr.P.C. For payment of the remaining part of the fine amount a month time is given to the revision petitioner from the date of receipt of copy of this order. ssv

To

1. The Judicial Magistrate No.I,

Kancheepuram.

2. The Chief Judicial Magistrate,

Kancheepuram.

3. The Additional Sessions Judge,

FTC. No.II,

Kancheepuram.

4. The Inspector of Police,

Vishnukanchi Police Station,

Kancheepuram.

5. The Superintendent of Police,

Central Prison,

Vellore.

6. The Public Prosecutor,

High Court,

Madras.

[PRV/10561]


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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