P. Rajan v. State by Inspector of Police, Vennandur Police Station, Namakkal District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 03.11.2010CORAMTHE HONOURABLE MR. JUSTICE T.SUDANTHIRAMCRL.RC.No.1688/2007P.Rajan..Petitioner/AccusedVersusState by Inspector of Police,Vennandur Police Station,Namakkal District... Respondent/ComplainantRevision filed u/s.397 read with 401 Cr.P.C., against theconviction and sentence passed by the Principal District Judge,Namakkal, Namakkal District dated 02.11.2007 made in Crl.A.No.60 of2007 confirming the conviction and sentence passed by the JudicialMagistrate, Rasipuram, Namakkal District dated 01.06.2007 made inC.C.No.349 of 2005.For Petitioner:Mr.S.SenthilnathanFor Respondent:Mr.A.SaravananGovt. Advocate (Crl.side)ORDERThe revision petitioner is an accused in C.C.No.349/2005 on thefile of the learned Judicial Magistrate, Rasipuram and he has beenconvicted for the offence u/s.304(A) and 279 of IPC and sentenced toundergo one year simple imprisonment and to pay a fine of Rs.1,000/-in default to undergo simple imprisonment for 3 months for theoffence u/s 304(A) IPC and further sentenced to pay a fine ofRs.900/- in default to undergo simple imprisonment for 9 weeks forthe offence u/s 279 IPC. The said conviction and sentence wereconfirmed by the learned Principal District Sessions Judge, Namakkalin Crl.A.No.60/2007. Challenging the said conviction and sentence,the petitioner has preferred this criminal revision.2.The case of the prosecution in brief is that on the date ofoccurrence, the deceased and his brother PW1 were going on the road,each one in a separate bicycle. On Namakkal – Salem main road, nearMalur, the Government Transport Corporation Bus driven by the accusedcame in a high speed and dashed on the bicycle in which the deceased https://hcservices.ecourts.gov.in/hcservices/ was riding. The deceased fell down and died on the spot. Thedriver, after stopping the bus had run away from the scene ofoccurrence. PW1 gave a complaint to the police about the accident.In order to establish the case, the prosecution examined PW1 to PW11and marked Exs.1 to 7. The accused was questioned under Section 313of Cr.PC and he had denied his complexity and not examined anydefence witness. Both the Trial Court and the Appellate Court foundthe accused guilty.3.The learned counsel appearing for the petitionerMr.S.Senthilnathan submitted that the witnesses to the occurrence donot speak about the rash and negligent driving of the accused andmere fact that the bus came in high speed would not amount to rashand negligent driving. The learned counsel further submitted thatthough M.V. Inspector's report Ex.P7 is marked, the m.v. Inspectorhas not been examined by the prosecution which amounts to seriousinfirmity in the prosecution case. The learned counsel also reliedupon the decision of the Supreme Court reported in 1998 SCC (Cr) 1508[State of Karnataka Vs. Satish]. 4. Per contra, the learned Government Advocate [Crl.side]submitted that the evidence of PW1 would show that the accused drovethe vehicle in a high speed and dashed against the accused and hisevidence is corroborated by the evidence of other eye-witnesses, PW3and PW4. The learned Govt. Advocate [crl.side] further submittedthat the accused has not taken any specific plea that the accidentwas due to mechanical defect and as such non-examination of M.V.Inspector would not affect the case of the prosecution. The learnedGovt. Advocate [Crl.side] also relied upon the decision of thisHon'ble Court reported in CDJ 2009 MHC 2570 [K.K.Mani v. The Staterep.by the Sub Inspector of Police] .5. This court considered the submissions and perused the records.6. PW1, 3 and 4 are eye-witnesses to the case. PW1 is thebrother of the deceased. According to PW1, he was going in a bicyclefollowing the deceased who was also going in a bicycle. Accordingto PW1, the transport bus came in a very high speed and dashedagainst the deceased. In the cross examination, it is also elicitedthat the driver of the bus was not hooting the horn. This evidenceof PW1 would show that the accused drove the vehicle in a rash andnegligent manner. Though the high speed is not the criteria,depending upon the facts and circumstances of the case, from the highspeed of the vehicle, it could also be said that the driver drove thevehicle with rashness.7. In this case, the M.V. Inspector's report is marked as Ex.P7.The M.V. Inspector has not been examined. In the decision of theHon'ble Supreme Court reported in 1998 SCC (Cr) 1508 [State of https://hcservices.ecourts.gov.in/hcservices/ Karnataka V. Satish] it was concluded by the Hon'ble Supreme Courtthat there was evidence to show that immediately before the vehicleturned turtle, there was a big jerk and it was not explained as towhether the jerk was because of the uneven road or mechanicalfailure. In the said circumstances, the Supreme Court observed thatthe M.V. Inspector who inspected the vehicle had given a report andthe report was not forthcoming and the inspector was also notexamined and it was a serious infirmity in the prosecution case. Butin the case in hand, though the M.V. Inspector has not been examined,the report had been filed as Ex.P7. Further, it is not the plea ofthe accused that there was a mechanical defect in the vehicle. Asper Ex.P7, there was no mechanical fault in the vehicle. ThisHon'ble High Court has observed in the decision reported in CDJ 2009MHC 2570 [K.K.Mani v. The State rep.by the Sub Inspector of Police]in Para 29 as follows -29. It is not the case of the accused that theaccident occurred due to mechanical defect in the vehicle.In the decision of this Court reported in 1995-2-LW (Crl.)493, the learned Judge took into account the fact that theoffending vehicle ran amuck and in fact it ran down theroad around 30 feet northern side of the road. In suchcircumstances, the learned Judge of this court expectedthe evidence of the Motor Vehicles Inspector, which wasmissing in that case. But here, absolutely, there is noteven any suggestion during cross examination or anystatement made under Section 313 of the Code of CriminalProcedure to the effect that the accident occurred due tothe mechanical defect in the bus. Hence, non-examinationof the Motor Vehicle Inspector in this case is not fatalto the case of the prosecution. At this juncture, I wouldlike to make it clear that in this case ocular evidence isclear relating to the rash and negligent act of theaccused in driving the bus as held supra. 8. For the above reason, the contention of the learned counselthat non-examination of the M.V. Inspector affects the prosecutioncase is only to reject. Conviction on the revision petitioner isconfirmed.9. The learned counsel for the petitioner submitted that theaccused has already been imprisoned for 9 months and prayed forleniency. Considering the facts and circumstances of the case andthe occurrence took place nearly about six years back, the sentenceof imprisonment period imposed on the petitioner for the offence u/s.304 (A) IPC is reduced to the period of imprisonment alreadyundergone by him. Instead, he is sentenced to pay an additional fineof Rs.2,000/- and in default of payment sentenced to undergo simpleimprisonment for three months. The revision petitioner is directed https://hcservices.ecourts.gov.in/hcservices/ to pay the additional fine amount before the trial Court within aperiod of four weeks from the date of receipt of a copy of thisorder. 10. Except the above modification regarding the sentence imposedon the petitioner, the revision petition is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarrgrTo1.The Principal District Judge, Namakkal, Namakkal District 2.The Judicial Magistrate Rasipuram, Namakkal District.3.The Public Prosecutor High Court, Madras.4. The Judicial Magistrate, Rasipuram, Namakkal District.5. The Chief Judicial Magistrate, Namakkal1 cc To Mr.S.Senthilnathan, Advocate, SR.79498CRL.RC.No.1688/2007TRM (CO)RH (26.11.10)