Siva Subramanian v. State

Bail SlipThe Appellant/Accused viz., Siva Subramanian was directed to bereleased on bail as per order of this Court dated.21.2.07 and made in Crl. Mp.No.1/07 in Crl.R.C.No.274/07 on the file of this Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:6.7.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.274 of 2007 Siva Subramanian... Petitioner /Sole Accusedvs. State rep.bythe Sub Inspector of Police, Nambiyur Police Station, Erode District... Respondent Crime No.160/2004/Complainant Petition filed under Section 397 r/w 401 of Cr.P.C. against thejudgement dated 7.2.2007 passed by the Additional Sessions Judge cumFast Track Court No.II, Gopichettipalayam, in C.A.No.260 of 2006,modifying the judgement dated 8.8.2006 passed by the JudicialMagistrate II, Gopichettipalayam, in C.C.No.580 of 2004.For Petitioner : Mr.S.P.MeenakshisundaramFor Respondent : Mr.Hasan Md.Jinnah,A.P.P.

O R D E R Animadverting upon the judgement dated 7.2.2007 passed by the Additional Sessions Judge cum Fast Track Court No.II,Gopichettipalayam, in C.A.No.260 of 2006, modifying the judgementdated 8.8.2006 passed by the Judicial Magistrate II,Gopichettipalayam, in C.C.No.580 of 2004, this criminal revision caseis focussed.

A 'resume of facts, which are absolutely necessary andgermane for the disposal of this criminal revision case would runthus: (a) The police laid the police report in terms of Section 173 ofCr.P.C. as against the accused for the offences under Sections 279,338 and 304(A) of IPC. The revision petitioner entered appearance andcontested the matter. Whereupon, the trial was conducted. https://hcservices.ecourts.gov.in/hcservices/ (b) During trial, on the prosecution side P.W.1 to P.W.18 wereexamined and Exs.P1 to P9 were marked. On the accused side, nodocumentary or oral evidence was adduced. (c) Ultimately, the trial Court recorded the conviction andimposed the sentences as under: Case No.OffencePunishmentC.C.No.589 of 2004279 IPCFine of Rs.1000/-, in de-fault, twoweeks rigourous imprisonment338 IPCFine of Rs.1000/-, in default, twoweeks rigourous imprisonment304(A) IPCOne year rigourous imprisonment andfine of Rs.5000/-, in default, threemonths rigourous imprisonment(d) Being aggrieved by and dis-satisfied with the judgement ofthe lower Court, the appeal in C.A.No.260 of 2006 was filed beforethe Additional Sessions Judge cum Fast Track Court No.II,Gopichettipalyam, which Court confirmed the findings of the lowerCourt, but reduced the sentence from one year R.I. to six monthssimple imprisonment for the offence under Section 304(A) IPC.

Challenging and impugning the judgements of both the Courtbelow, this revision is focussed on various grounds, the warp andwoof of them would run thus: Both the Courts below failed to appreciate the evidence in theproper perspective in passing the judgements. Ex.P1-the F.I.R.reached the Court only on 29.6.2004, even though it is claimed tohave been registered on 24.6.20004 at about 6.15 hours. The policedid not investigate the matter properly even as revealed by theevidence of witnesses. Accordingly, the revision petitioner prayedfor setting aside the findings of both the Courts below and foracquitting the accused.

Heard both sides.

The point for consideration is as to whether there is anyperversity or non-application of law in analysing the evidence andrendering the judgements by both the Courts below.

Pithily and precisely, tersely and briefly, the case of theprosecution, as could be understood from the records, is to theeffect that on 24.6.2004 at about 6.15 hours, the accused was drivingthe Tata Sumo car bearing registration No.58/F.6989 from South to North direction along Nambiyur-Gobi Main Road in a rash and negligentmanner and dashed as against the Tea stall situated on the side ofthe road near Amarjothy Mill and thereby caused the death of Varadaraj and grievous hurt to one Chinnaiyan. The principle of resipsa loquitor if not to be applied in this case, I am at a loss to https://hcservices.ecourts.gov.in/hcservices/ understand as to in what case it could be successfully pressed intoservice.

The occurrence took place at 6.15 a.m. so to say, duringmorning hours and there was sufficient natural light and in such acase, it was for the accused under Sections 105 and 106 of the IndianEvidence Act to explain as to how the occurrence took place. During313 examination also there is no whisper as to what prompted him todash as against the tea stall. On the other hand, he would simplyplead that the entire case is a false one. The evidence ofeyewitnesses, as considered by both the Courts below, would clearlyevince and evidence that the accident occurred due to the rash andnegligent driving of the said offending vehicle referred to supra. The deceased and the injured, at the relevant time of the accident, were taking tea near 'Angulakshmi tea shop' of Kuppuswamy-P.W.6. Infact, P.W.2-Chinnaiyan would clearly narrate as to how the Tata Sumocar came in a rash and negligent manner and entered into the teastall itself and it is not the case of mere grazing somebody, who isstanding on the side of the road and causing the accident.

At this juncture, my mind his reminiscent and redolent of thefollowing decisions of the Honourable Apex Court: (i) 2002 Supreme court cases (crl) 1448 - Bindeshwari PrasadSingh alias B.P.Singh and Others vs. State of Bihar (now Jharkhand)and another; an excerpt from it would run thus: "13. The instant case is not one where any such illegality wascommitted by the trial court. In the absence of any legalinfirmity either in the procedure or in the conduct of thetrial, there was no justification for the High Court tointerfere in exercise of its revisional jurisdiction. It hasrepeatedly been held that the High Court should notreappreciate the evidence to reach a finding different fromthe trial court. In the absence of manifest illegalityresulting in grave miscarriage of justice, exercise ofrevisional jurisdiction in such cases is not warranted.14. We are, therefore, satisfied that the High Court was notjustified in interfering with the order of acquittal inexercise of its revisional jurisdiction at the instance of theinformant. It may be that the High Court on appreciation ofthe evidence on record may reach a conclusion different fromthat of the trial court. But that by itself is nojustification for exercise of revisional jurisdiction under Section 401 of the Code of Criminal Procedure against ajudgment of acquittal. We cannot say that the judgment of thetrial court in the instant case was perverse. No defect ofprocedure has been pointed out. There was also no improperacceptance or rejection of evidence nor was there any defectof procedure or illegality in the conduct of the trialvitiating the trial itself. (ii) 2005 Supreme Court Cases (cri) 276 – Sathyajit Banerjee and Others vs. State of W.B.and others, an excerpt from it would run https://hcservices.ecourts.gov.in/hcservices/ thus: "22. The cases cited by the learned counsel show thesettled legal position that the revisional jurisdiction, atthe instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Courtfinds defect of procedure or manifest error of law resultingin flagrant miscarriage of justice. "

A bare perusal of those decisions would exemplify anddemonstrate that the High Court, while exercising its revisionaljurisdiction is not expected to interfere with the finding of factarrived at by both the Courts below simply because one other view ispossible or a different view could be taken.

Both the Courts below taking into consideration the evidenceof eyewitnesses correctly arrived at the conclusion that the accidentwas due to the rash and negligent driving of the vehicle by theaccused.

The contention on the side of the revision petitioner thatthe investigation was not done properly etc., in this case fails tocarry conviction with this Court for the reason that this case isdifferent from other cases. Here the eyewitnesses candidly andcategorically spoke about the occurrence and as pointed out by mesupra, without being tautalogous, the principle of res ipsa loquitoris applicable to the facts and circumstances of this case. Thediscrepancies in the investigation conducted by the police would notin any way cut at the genuineness of the very prosecution caseitself. Simply because, the investigating agency may not be promptin sending the FIR to the Court, no adverse inference could be drawnas against the prosecution case itself.

In this case even though the FIR was registered as early ason 24.6.2004, it reached the Magistrate Court on 29.6.2004. Sufficeto say that such delay on the part of the investigating agency insending the FIR should be deprecated in unmistakable terms and Iavoid as such strong meat to deprecate such a practice. P.W.16-the Head Constable in his deposition would detail and delineate, expressand expatiate that he despatched the FIR on the same day ofregistration. The laches on the part of the Police should be pulledup by the higher officials. However, in this case, such belatedreceipt of FIR by the Court in no way should be taken as fatal to theprosecution case.

I make it clear that in all cases such belated submission ofFIR to the Magistrate should not be condoned automatically. But inthis case, relating to the occurrence is concerned, there isabsolutely no doubt. Soon after the accident, the injured personChinnaiyan-P.W.2 was taken to the hospital and he took treatment asrevealed by Ex.P4-the Wound Certificate. The Doctor-P.W.14 alsorecorded the history as under:-"alleged to have(sic)(been) knocked down by van in frontof Amarjothi Mills at Nambiyur at 7.00 a.m. On 24.6.2004: https://hcservices.ecourts.gov.in/hcservices/ (i) Lacerated injury lower hip 5x3xbonedept(ii) Lacerated injury .....3x2cm (3) Abrasion Rt kneejoint 2x1 cm (4) Lacerated injury Rt leg Foot 3x1cm (5)Lacerated injury toe 2x1 cm (6)? # Upper mandible – referredto Erode G.H."

The history recorded therein by the Doctor-P.W.14 isadmissible in evidence by virtue of the decision of the HonourableApex Court in REHMAT VS. STATE OF HARYANA(1997 CRL.L.J.764), anexcerpt from it would run thus: "10. There is also another aspect which goes in favour ofthe appellant. Admittedly Padam Singh (P.W.4) along with Vijay Singh had first gone to the Primary Health Centre formedical help but he did not disclose the name of the assailantto the Doctor. Ordinarily, in a medico legal case, the doctoris supposed to write down the history of the injured butadmittedly in this case, medical papers of Padam Singh (PW4)do not indicate the name of the assailant. The names weredisclosed only at the time when the complaint was recorded bySI Narain Singh at about 9.00 p.m.which was treated as aformal FIR. The learned counsel for the appellant, therefore, rightly urged that the appellant was later on implicated inthe present crime at the instance of the complainant and hisfriends. It may also be stated that the prosecution case evenotherwise appears to us improbable because Padam Singh (PW4)claims to have got up early in the morning and saw theappellant running from the side of his room at about 3.30 a.m.In these circumstances, it is not possible to sustain theconviction of the appellant under Sections 307/393 of the Indian Penal Code. "(emphasis supplied)

As such, this piece of evidence is not only proving theoccurrence, but also it saves the prosecution from being labelled asfalse due to the lapse on the part of the investigating agency insubmitting the F.I.R.in time to the Magistrate. P.W.14-the Doctorspoke about the treatment given to the injured and P.W.15-is thedoctor, who conducted the postmortem. As such, the evidence ofP.Ws.14 and 15, coupled with the Wound Certificate and PostmortemCertificate would unambiguously support the prosecution version. Hence, I could see no infirmity in the finding of fact recorded byboth the Courts below.

Regarding the sentence is concerned, the learned counsel forthe accused would submit that the sentence might be reduced.

The trial Court imposed the sentence of one year rigourousimprisonment, which was reduced to six months by the appellate Court, without disturbing the fine imposed .

Taking into consideration the fact that the accused was 28years old, so to say a man of young age, I am of the view that thesentence could be reduced to three months simple imprisonment, https://hcservices.ecourts.gov.in/hcservices/ leaving intact the fine imposed. 18. The criminal revision case is ordered accordingly. The trialCourt shall take steps to secure the presence of the accused and sendhim to jail to undergo the three months simple imprisonment, if notalready undergone. Sd/- Asst. Registrar / True Copy / Sub. Asst Registrar mskTo1.The Additional Sessions Judge cum Fast Track Court No.II, Gopichettipalayam.2.-do-thro' The Principal Sessions Judge, Erode. 3. The Judicial Magistrate II, Gopichettipalayam4.-do- Thro'The Chief Judicial Magistrate, Erode. 5. The Superintendent, Central Prison, Coimbatore. 6. The Sub Inspector of Police, Nambiyur Police Station, Erode District. 7. The Public Prosecutor, High Court, Chennai.+ 1 cc to M/s.S.P.Meenakshi Sundaram, Advocate, SR.29183Crl.R.C.No.274 of 2007PKB(CO)EM/17.7.09