THE HONOURABLE MR v. State rep. ByInspector of PolicePudumund Police StationUdhagamandalamThe NilgirisCr.No.1/2003

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:05.08.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.748 of 2007Mani... Petitioner/Appellant/ Accusedvs.State rep. ByInspector of PolicePudumund Police StationUdhagamandalamThe NilgirisCr.No.1/2003 ... Respondent/ComplainantPrayer: Petition filed under Section 397 and 401 of Cr.P.C. againstthe judgment passed in C.A.No.5 of 2007 dated 25.04.2007 on the fileof the learned Sessions Judge of Nilgiris at Udhagamandalam,confirming the judgment and order of conviction of the trial Courtpassed in STC No.843 of 2003 dated 22.2.2007 on the file of thelearned Judicial Magistrate, Udhagamandalam.For Petitioner : Mr.N.ChandrasekaranFor Respondent : Mr.R.Muniyapparaj,G.A.(crl.side) O R D E RAnimadverting upon the order dated 25.04.2007, passed by thelearned Sessions Judge of Nilgiris at Udhagamandalam, in C.A.No.5 of2007, confirming the judgment and order of conviction dated22.02.2007, passed by the learned Judicial Magistrate,Udhagamandalam, in STC No.843 of 2003, this criminal revision isfocussed. 2. Compendiously and concisely, the relevant facts which areabsolutely necessary and germane for the disposal of this revisionwould run thus:(a) The police laid the police report in terms of Section 173Cr.P.C. as against the accused for the offences under Sections 279,304(A) and 338 IPC on the ground that the accused was driving thelorry bearing Registration No.TN-N-4905 along Kudalur Main Road nearKamaraj Dam towards Ooty, so to say from north to south direction, ina rash and negligent manner and at that time, the driver of the lorrydashed the lorry as against the said motor cyclist and caused hisdeath and caused grievous injuries to the pillion rider.(b) Inasmuch as the accused pleaded not guilty, trial wasconducted.During trial, on the prosecution side, P.Ws.1 to 17 https://hcservices.ecourts.gov.in/hcservices/ were examined and Exs.P1 to P9 were marked. No oral or documentaryevidence was adduced on the side of the accused. (c) Ultimately, the trial Court recorded the conviction andimposed the sentence as under:-----------------------------------------------------------------Case No.Offence Punishment imposed-----------------------------------------------------------------STR No.U/s 304(A) IPC Three months R.I.843 of 2003U/s 338 IPC One month R.I. (Sentence to run concurrently) -----------------------------------------------------------------3. Animadverting upon such judgment of the lower Court, C.A.No.5of 2007 was filed for nothing, but to be dismissed, confirming thejudgment of the lower Court.4. Challenging and impugning the judgments of both the Courtsbelow, this revision has been filed on various grounds, the warp andwoof of them would run thus:The judgments of both the Courts below would evince that theCourts have not taken into consideration that no negligence on thepart of the accused was attributed by any of the witnesses examinedon the prosecution side. In proper perspective the oral anddocumentary evidence have not been analysed by the Courts below. Thelower Court found as though the lorry was coming downwards, when infact it was not so. The lorry was going upwards in that hill area.In the absence of clear proof to show that the accused was rash andnegligent in causing the accident,the Courts below were not justifiedin finding him guilty. Accordingly, he prays for setting aside theorder passed by both the Courts below.5. The point for consideration is as to whether there is anyperversity or non-application of law in rendering judgments by boththe Courts below.6. The learned counsel for the revision petitioner inviting theattention of this Court to various parts of the evidence would setforth and put forth his argument to the effect that the lorry wasnegotiating upwards and in such a case, he could not have been rashand negligent as it is obvious and axiomatic; however, without takinginto consideration this basic principle, both the Courts below simplyjumped to the conclusion that the driver of the lorry was at fault.According to the learned counsel for the revision petitioner, thedeceased rider of the motor cycle was not having driving licence andhence, both the Courts below were not justified in mulcting theaccused with criminal liability. 7. Whereas, the learned Government Advocate (crl.side) by way oftorpedoing and pulverising the argument as put forth on the side ofthe accused would submit that the lorry which was moving upwards wasexpected to give way for the vehicle which is coming downwards andthe driver of the lorry should have been careful in driving the https://hcservices.ecourts.gov.in/hcservices/ vehicle upwards, but he failed to do so and that without sounding thehorn, he simply drove the vehicle. 8. In this factual matrix, I would like to refer to the sketchwhich was marked as Ex.P.8. A bare look at Ex.P.8 would evince anddisclose that there is no 'L' or 'V' bend on the road at the place ofthe accident. It is explicitly clear that while the lorry wasnegotiating along the acclivitous slope of the road, the deceasedmotor cyclist was negotiating along the declivitous slope of the sameroad, by adhering to the proper side, so to say the left side. 9. It is a trite proposition of law that the vehicle which ismoving upwards should give way for the vehicle which is comingdownwards. It is also a common or garden principle that bigger thevehicle, bigger the responsibility. The driver of the lorry shouldhave been careful in driving the lorry while driving it upwards, butfrom the evidence it is shown that he in the process of movingupwards, he deviated from the path and moved towards right side andcame in violent contact with the deceased motor cyclist. Both theCourts below gave a concurrent finding relating to the actualoccurrence warranting no interference, as I could see no perversityor non-application of mind in their finding.10. There is nothing to indicate and divulge that the rider ofthe motor cycle was not having licence to drive the vehicle. Evenfor arguments sake if taken so, it cannot be presumed that simplybecause of that factor, the accident occurred. The responsibility onthe person who is having no driving licence cannot be fixed in theabsence of clinching evidence pointing towards the negligence on hispart.11. P.W.13, the Motor Vehicle Inspector with reference to Ex.P4would state that the accident might not have been due to anymechanical defect in the vehicles. Accordingly, I could see noperversity or non-application of law in recording the finding ofguilt as against the accused and as such, no interference relating tothe findings are required. 12. Regarding the sentence is concerned, the lower Court imposedonly three months substantive imprisonment along with fine and theappellate Court also confirmed it.13. The learned counsel for the revision petitioner would prayfor imposing fine only and exonerate the accused from undergoingimprisonment.14. At this juncture, my mind is redolent of the followingdecision of the Hon'ble Apex Court:2002(2) SUPREME 500 – STATE OF KARNATAKA VS. SHARANAPPABASNAGOUDA AREGOUDAR, an excerpt from it would run thus:"6. We are of the view that having regard tothe serious nature of the accident, which resultedin the death of four persons, the learned SingleJudge should not have interfered with the sentence https://hcservices.ecourts.gov.in/hcservices/ imposed by the Court below. It may create and setan unhealthy precedent and send wrong signals to thesubordinate courts which have to deal with severalsuch accident cases. If the accused are foundguilty of rash and negligent driving, courts have tobe on guard to ensure that they do not escape theclutches of law very lightly. The sentence imposedby the courts should have deterrent effect onpotential wrong-doers and it should commensuratewith the seriousness of the offence. Of course, theCourts are given discretion in the matter ofsentence to take stock of the wide and varying rangeof facts that might be relevant for fixing thequantum of sentence, but the discretion shall beexercised with due regard to larger interest of thesociety and it is needless to add that passing ofsentence on the offender is probably the most publicface of the criminal justice system." A bare perusal of it would show that atleast three monthsimprisonment should be imposed in the matter relating to Section 304-A IPC and the lower Court adhering to the cited precedents, imposedthe sentence warranting no interference.In the result, this criminal revision case is dismissed.Gms Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarTo1. The Sessions Judge of Nilgiris at Udhagamandalam.2.-do- The Pricipal Sessions Judge Niligiris at Udhagamandalam.3. The Judicial Magistrate, Udhagamandalam.4. The Chief Judicial Magistrate, Niligiris at Udhagamandalam.5. The Public Prosecutor, Madras.6. The Inspector of Police, Pudumund police station Udhagamandalam.Copy to:- The Section Officer Criminal Section, High Court Madras.+ 1 cc to Mr. N. Chandra Sekaran, Advocate Sr.36004.Crl.R.C.No.748 of 2007PUR(CO)EU 1.09.2009