A. Irudhayanathan v. State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 29-09-2009CORAMTHE HONOURABLE MR.JUSTICE T.SUDANTHIRAM Crl.R.C.No.1104 of 2007Mr.A.Irudhayanathan .. Accused/Appellant/ PetitionerVersusState of TamilnaduRep.by Inspector of Police,Maraimalai Nagar Police StationChengalpet District,Crime No.455/2001 .. Complainant/Respondent Respondent Revision filed under Section 401 of Criminal ProcedureCode to call for the records and set aside the order dated 29.06.2004passed in C.C.No.9/2003 on the file of The Judicial Magistrate CourtNo.II, Chengalpet and confirming the order dated 09.07.2007 passed inC.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 2003on the file of the Judicial Magistrate No.II, Chengalpattu standsconvicted for the offence under Section 279 and 304(A) IPC andsentenced to undergo Rigorous Imprisonment for 2 years and to pay afine of Rs.2000/- in default to undergo 4 months Simple imprisonment.The said conviction and Sentence were confirmed by the LearnedPrincipal Sessions Judge, Chengalpattu in C.A.No.59 of 2003.Aggrieved by the said conviction and sentence, the petitioner haspreferred this Revision.2. The Case of the prosecution is as follows:- https://hcservices.ecourts.gov.in/hcservices/ On 19.11.2001 at about 11.30 A.M., the deceased Loganathanwas driving motorcycle from Chengalpattu towards Tambaram and themotorcycle was going infornt infront of the Ford motor Company. Atthat time, the State Transport Corporation bus driven by the accusedin a rash and negligent manner, dashed the motorcycle from behind.The bus ran over the deceased and came to halt after 50 feet. Assuch the deceased Loganthan succumed to the injuries at the spotitself. P.W.1, who is an eye witness preferred the complaint Ex.P1before P.W.8, the then Sub Inspector of Police at Maraimalai Nagarwho inturn registered the case in Crime No.455/2001 for the offenceunder Sections 279 and 304(A) I.P.C. and prepared Ex.P6 F.I.R. Hevisited the crime scene and prepared Ex.P7, observation mahazar andhe has also prepared Ex.P8, rough sketch.After conducting the inquestand preparing Ex.P9, he sent the dead body of the deceased for post-mortem examination. P.W.7, Dr.Murugesan conducted the post-mortemexamination on the dead body of the deceased and gave Ex.P5 post-mortem report. P.W.5, the Motor Vehicle Inspector has examined thebus on the basis of the requisition given by the investigationofficer 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 9exhibits and after analysing the evidence, the accused was convictedand sentenced as already stated above by the Judicial MagistrateNo.II, Chengalpattu and the same was confirmed by the PricipalSessions Judge, Chengalpattu.4. The learned counsel for the petitioner submitted that even asper the evidence of P.W.3 and P.W.4, who are the eye witnesses theState Transport Corporation bus had come only in a normal speed andaccident occurred only due to negligence of the deceased who hadsuddenly crossed the road in the motor cycle from left to right.5. Per contra, the learned Prosecutor submitted that as perEx.P8 rough sketch pertaining to the scene of occurrence, there was acutting on the right side of the road and the vehicle is permitted toturn to the right through the cutting and the deceased who was ridingon the road, by showing the signal and stretching his hand was aboutto turn to the right side through the cutting, in the median of theroad. But before he could take a turn, the bus which was driven in arash and negligent manner dashed against the motor cycle.6. This Court has considered the submissions of both side andperused 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 cycleshowed the signal before turning to the right. When the vehicle wasabout to turn to the right, only at that time the bus came at thedirection and dashed the motor cycle. The evidence of P.W.3 is that https://hcservices.ecourts.gov.in/hcservices/ the deceased who was driving the motor cycle has gone from the leftside 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 ofP.W.3 and P.W.4, the bus came in the normal speed. On verifying theobservation mahazar and rough sketch, it appears that accident hastaken place near the cutting in the median of the road, which wasprovided for the turning of the vehicle. The bus driver ought tohave been very careful while driving in the high way. He ought tohave noted the vehicle which was to take right turn. Though P.W.3and P.W.4 stated that the bus came in the normal speed, from theevidence it appears that from the place of impact, the body of thedeceased was dragged to the distance of 50 feet and thereafter onlythe bus had came to a halt. The rash and negligent driving of thebus driver is established from the evidence available. In suchcircumstances, this Court confirms the conviction on the accused. 8. The learned counsel for the petitioner prays for the lineancyof this Court for the sentence imposed on the petitioner andsubmitted that the petitioner is in jail for more than four days.9. This Court already held that the driver has driven in a rashand negligent manner but at the same time it cannot be ruled out thatthere was no contributory negligence on the part of the deceased. Itis the evidence of P.W.3 and P.W.4 that the bus came in the normalspeed and the evidence of P.W.3 that the motor cycle went from leftto right side of the road. Therefore, it is clear that if thedeceased also had been careful before turning to the right side ofthe road, the accident could have been averted. Though thecontributory negligence on the part of the deceased can't be takenas a ground for acquitting the accused, it could be considered forreducing the sentence imposed on the accused.In the result, the sentence of imprisonment imposed on theaccused is reduced to the period already undergone. With the abovemodification, this Revision is partly allowed. arrSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo:1.The Judicial Magistrate No.II Chengalpet.2. -Do-Through Chief Judicial Magistrate Chengalpet. https://hcservices.ecourts.gov.in/hcservices/

3. The Principal Sessions Judge Chengalpet.4.The Inspector of Police, Maraimalai Nagar Police Station Chengalpet District,5. The Public Prosecutor High Court Madras.+ 1 CC to Mr. P.Mani, Advocate SR 49312. Crl.R.C..No.1104 of 2007KU(CO)VC(21.10.2009)