Nachimuthu v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:03.01.2011CORAMTHE HONOURABLE MS.JUSTICE K.B.K.VASUKICrl.R.C.No.1242 of 2007Nachimuthu.. Petitioner/Appellant/AccusedVs.State by the Inspector of PoliceVelagoundampatty Police Station,Namakkal District.Crime No.332 of 2004.. Respondent/Respondent/ComplainantPrayer: Criminal Revision filed under Sections 397 and 401 of theCriminal Procedure Code to call for the records relating to thejudgment dated 03.08.2007 made in C.A.No.33 of 2007 on the file ofPrincipal District Court, Namakkal reducing the sentence imposed inthe judgment dated 16.03.2007 made in C.C.No.421 of 2004 on the fileof the Judicial Magistrate No.1, Namakkal and to set aside the sameand to acquit the accused.For Petitioner : Mr.N.ManokaranFor Respondent : Mr.I.Paul Noble Devakumar Govt. Advocate (Criminal Side)O R D E RThe criminal revision is filed by the accused against thejudgment of conviction made in C.A.No.33 of 2007 on the file of thePrincipal District Court, Namakkal confirming the judgment ofconviction made in C.C.No.421 of 2004 on the file of the JudicialMagistrate No.I, Namakkal. The petitioner is charged for the offenceunder Section 304 (A) IPC by saying that the accused had at 9.50 a.m.on 08.10.2004 drove the bus bearing Registration No.TN 28 L 6670rashly and negligently and caused the accident by dashing against oneTVS 50 moped resulting in fatal injuries to two persons riding in themoped leading to their death.2.The prosecution in order to prove the guilt of the accusedexamined the defacto complainant, eye witnesses, mahazar witness,Post mortem doctors and the police officials who received andregistered the complaint and FIR and inspector of police who https://hcservices.ecourts.gov.in/hcservices/ conducted the investigation and the Motor vehicle inspector as P.Ws 1to 12 and has produced Exs.P1 to P.13 documents. The trial Court hason the basis of the materials found that the accident is causedsolely by the rash and negligent driving of the accused and hasconvicted and sentenced him to undergo imprisonment and to pay fine.Aggrieved against the same, the accused preferred the appeal beforethe Appellate Court. The Appellate court has, by judgment dated03.08.2007, confirmed the judgment of the trial Court and hence, thiscriminal revision by the accused before this Court.3.The learned counsel for the accused has by relying upon thecategorical statement made by the prosecution side witnesses aboutthe physical features available on the scene of occurrence and theefforts made by the driver of the vehicle to divert the vehicle toopposite side to avoid the accident contended that the driver of thevehicle is not solely responsible for the accident and the accidentis caused mainly due to the act of the TVS 50 moped rider in enteringthe main road from the branch road without verifying the traffic onthe main road and due to the existence of the standing tree whichblocks the vision of the road at the junction of the main road andthe branch road. It is further argued by the learned counsel for thepetitioner that the Rule Resp Ipsa Locquitur is not applicable to thecriminal proceedings where the liability is always on the prosecutionto prove the rash and negligent act of the driver and on the failureof the prosecution to prove the same, the lower Courts ought to havereleased the petitioner from the charges levelled against him. Thelearned counsel for the petitioner also cited authorities of theSupreme Court reported in 2001 (2) MWN (Cr.) SC 77 in MohammedAynuddina alias Miyam V. State of Andhra Pradesh; 2001(2) MWN (cr.)249 Sekar V. State by S.I. of Police, Ethapur, Salem District; AIR1972 SC 221 Mahadeoharilokrs V. State of Maharashtra and 2007 CrLJ475 B.C.Ramachandra S/o Chikkashetty V. State of Karnataka byChannarayapatna Town Police rep. by S.P.P. of High Court ofKarnataka, in support of his contention in this regard.4.Heard both sides.5.The perusal of Ex.P.8 Rough Sketch reveals that the bus wascoming from Namakkal to Thiruchengodu East West main road and the TVS50 moped was coming from Athiyappampalayam branch road in the Southof the East West main road and the accident is caused just at thejunction of the main road and the branch road and the bus was, afterthe accident, dragged on to nearly 70 feet on the opposite side anddashed against one standing the Karuvelam tree on the Northern sideand stopped.6.The prosecution has examined P.Ws.1 to 4 and P.W.9 as eyewitnesses of the accident. P.W.1 who is the defacto complainant, isnone other than the grandson and son of the deceased respectively andP.Ws.2 and 4 are purported to be the eye witnesses of the accident. https://hcservices.ecourts.gov.in/hcservices/ Out of the five eye witnesses, it is true that the P.Ws.1 and 3 havedeposed that the bus came rashly and dashed against the TVS 50 moped,but P.W.2 has in the course of cross examination denied any knowledgeabout the manner of the accident. P.W.4 has, though in his chiefexamination deposed that he actually eye witnessed the accident hehas admitted in the course of his cross examination that the vehiclecoming from branch road will not be visibly seen by the vehiclescoming in the main road due to the standing tree. P.W.9 who is alsoone of the inmates of the bus has in the course of his crossexamination deposed contra to the prosecution case that the TVS 50moped suddenly entered the main road and came across the bus whichwas coming on the straight road and the bus driver though was drivingat high speed attempted to divert the vehicle to his rightern side toavoid dashing against the TVS 50 and in such attempt lost control andhit against TVS 50 and dragged on to opposite side. 7.As rightly argued by the learned counsel for the petitioner,the evidence of P.W.9 is sufficient enough to shatter the case of theprosecution as if the bus driver is solely responsible for theaccident. As rightly pointed out by the learned counsel for thepetitioner, the bus was coming straight in the main road and thenormal focus of the driver will be only on the main road. Whereas theTVS 50 moped riders coming from branch road ought to have, beforeentering the main road at the junction, verified the traffic on themain road and only after confirming the same can enter and cross themain road. None of the P.Ws deposed that one such attempt was made bythe TVS 50 moped rider before entering the main road. On thecontrary, P.W.11 has stated that the bus driver attempted to divertthe bus to opposite direction to avoid accident. If that is so, theaccused cannot be said to be acted without due care and caution, soas to construe his act, as rashness opposed to deliberate act. It isto be observed that all the witnesses did only speak about thedriving of the vehicle at high speed which alone would not render thedriving to be rash and negligent as observed by the Supreme Court inthe judgment reported in 2007 CrLJ 475 B.C.Ramachandra S/oChikkashetty V. State of Karnataka by Channarayapatna Town Policerep. by S.P.P. of High Court of Karnataka and AIR 1972 SC 221Mahadeoharilokrs V. State of Maharashtra. The Supreme Court is undersimilar circumstances where serious attempts were made on the part ofthe driver of the vehicle to divert the direction to avoid accident,pleased to hold that the circumstances did not bespeak, negligence ordereliction of duty to exercise due care and control on the part ofthe accused. The Supreme Court has also observed that when anexplanation is sought to be given by the accused about thecircumstances under which the accident is caused due to negligent actof the deceased, then the burden shifts to the prosecution to showthat the explanation so offered by the accused could not be believed.When no such reason is made out, the case of the prosecution ought tobe rejected as no proof is made out and the conviction recordedagainst the accused is hence not sustainable. The Apex Court has, in https://hcservices.ecourts.gov.in/hcservices/ the cases above referred to, not appreciated the approach adopted bythe Courts below, resulting in manifestly illegal order leading tofailure of justice. That being the guideline issued by the Apex Courtin the absence of any evidence to prove rash and negligent driving onthe part of the accused, mere driving the vehicle at high speed isnot sufficient enough to bring the offence under Section 304 (A) IPC.The Courts below by simply accepting the prosecution case, withoutanalysing as to what amounts to rash and negligent act committedserious error in finding the accused is guilty and convicted him andsuch order of conviction cannot be allowed to sustain. 8.In the result, the criminal revision is allowed by settingaside the judgment of conviction and sentence passed by the lowerCourts and the accused is acquitted and the fine amount, if any paidby the accused, shall be refunded and the bail bonds, if any,executed by him shall stand cancelled.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvaTo1.The Principal District Judge, Namakkal.2.The Judicial Magistrate No.1, Namakkal.3. -do- Through The Chief Judicial Magistrate, Namakkal.4. The Superintendent, Central Prison, Coimbatore.5. The Inspector of Police, Velagoundampatty Police Station,Namakkal District.6. The Public Prosecutor, High Court, Madras.1 cc To Mr.N.Manokaran, Advocate, SR.278.Crl.R.C.No.1242 of 2007 KSK(CO)RVL 15.02.2011