G.Jayakrishnan v. 1. Jothi Ramalingam2. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 19.04.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCRL.R.C.NO.1749 OF 2003G.Jayakrishnan.. Petitioner-vs-1. Jothi Ramalingam2. State rep. by the Inspector of Police, Bhavani Police Station, Bhavani Erode District. (C rime No.20 of 2002) .. Respondents This Revision is filed under Section 397 of Crl.PC as againstthe Judgment of the learned Special Judicial Magistrate,Bhavani inC.C.No.1 of 2003 dated 03.07.2003.For petitioner : Mr.T.P.ManoharanFor respondents : Mr.N.Manoharan-R1 Mr.V.R.Balasubramaniam Addl. Public Prosecutor-R2 O R D E RThis revision has been preferred against the Judgment inC.C.No.1 of 2003 on the file of the Court of Special JudicialMagistrate, Bhavani dated 3.7.2003. 2. The criminal case had arisen out of an accident which tookplace on 18.1.2002 at 11.30 a.m., on the Anthiyur-Appakudal Road,Santhipalayam Village, Bhavani Taluk.3. The case of the prosecution is that the accused who is adriver of Tamil Nadu State Transport Corporation bus bearingRegistration No.TN33-N-0775, while proceeding from north to south onthe Anthiyur-Appakudal road, had driven the vehicle in a rash andnegligent manner dashed against the TVS-50, TN-36-A-8173 on whichthe complainant was riding at the time of the accident. Due to theaccident, the complainant had sustained grievous injuries on his https://hcservices.ecourts.gov.in/hcservices/ right hand, right thigh, right toe, right shoulder and right flank.The accused has been charged under Sections 279 and 338 of IPC.4.After taking cognizance of the case, the learned trial Judgehad summoned the same to the accused for his appearance and on hisappearance copies under Section 207 of Cr.P.C. were furnished to theaccused and when the offence was explained to the accused andquestioned the accused pleaded not guilty.5. On the side of the prosecution P.Ws 1 to 11 were examined.Exs P1 to P9 were exhibited. 6. P.W.1 is the complainant. According to P.W.1, on 18.1.2002at about 11.15a.m. to 11.30 a.m, while he was proceeding fromBhramadesam to Anthiyur in his TVS 50 bearing registration No.TN-36A-8173 in a moderate speed following the traffic rules and whilehe was nearing the house of one Mathaiyan at Vellaiyanpalayamvillage, he saw the bus driven by the accused bearing RegistrationNo.K3-TN33-0775 in a rash and negligent manner from about a distanceof 300 feet and the said bus was proceeding from north to south inthe same Anthiyur road and at the place of occurrence, the driverhad driven the bus in a rash and negligent manner and dashed againsthim near the bund. He would depose that since there is no space onhis left side and there was thorny fence along the side of the roadto his left at the place of occurrence, he cannot go beyond the saidthorny fence and the accident had occurred only due to rash andnegligent driving of the driver of the bus which resulted in simpleand grievous injuries all over his body and that he was admitted ina private Hospital at Anthiyur by the passersby and that he hadpreferred a complaint with the police under Ex P1. The doctor atAnthiyur Amman Hospital referred him to another hospital atCoimbatore where he took treatment as an in patient. He would denythat he has dashed on the side of the bus at the time of accident.6a. P.W.2,P.W.3,P.W.4 are the ocular witnesses for theaccident. P.W.2 would depose that at the time of accident, he wastalking with his friend Arumugam in front of his house and that theplace of accident was not a straight road but the road bends in thatplace. He would say that the accident has occurred only due to tworeasons, the first reason is, curve of the road and second reasonis that the driver of the bus had driven on the extreme west of theroad. He would identify the accused as the driver who had driven thebus which involved in the accident.6b. P.W.3 would corroborate the evidence of P.W.2 by sayingthat after the accident, P.W.1 was lying on a thorny fence situateon the west of the road. https://hcservices.ecourts.gov.in/hcservices/ 6c. P.W.4 would state that since the accused had driven the buson the extreme west of the road, the accident had occurred and P.W.1had sustained injuries .6d. On the basis of Ex P1 complaint, P.W.10, after hearing theaccident had went to Amman Hospital ,Anthiyur where P.w.1 wasinitially treated on 18.1.2002 at 1.00p.m., and obtained a statementfrom P.W.1 and registered the case in Anthiyur Police Station undercrime No.20/2002 under Sections 279 and 338 of IPC and had proceededto the place of occurrence and prepared observation mahazar Ex P2 inthe presence of P.W.5 and another witness. P.W.10 had also drawn ExP9 rough sketch in the presence of the same witnesses. He hasexamined the witnesses and recorded their statements. He hadarrested the accused on the same day at 16.45 hours and released himon bail.6e. P.W.6 is the doctor, who had treated and given first aidto P.W.1 at Amman Hospital, Anthiyur. Ex P3 is the intimation givenby P.W.6 to the police.6f. P.W.7 is the senior Assistant Engineer in Tamil Nadu StateTransport Corporation, Gobichettipalayam branch. According to him,the accused was a driver in the Government bus bearing registrationNo.TN-33-N-0775 on 18.1.2002 and the conductor of the bus was oneKaligounder and the said bus was plying from Silamber Amman Koil toGowthampadi route on 18.1.2002. Ex P4 is the letter written by himin which he would state that he has wrongly noted the date as18.1.2001 instead of 18.1.2002.6g. P.W.8 is the Motor Vehicle Inspector who had inspected thebus bearing Registration No.TN-33-N-0775 on 18.1.2002 at 4.30pm., ExP5 is the inspection report. According to him, the accident had notoccurred due to any mechanical defects of the bus. He has noticedsome scratches on the right side body of the bus. He has alsoexamined TVS 50 bearing Registration No.TN-36-A-8173 and issued ExP6 certificate. He has opined that the accident had not occurred dueto mechanical defects in the TVS 50.6h. P.W.9 is the doctor, who had examined P.W.1 at GangaHospital, Coimbatore. Ex P7 is the wound certificate relating to theinjuries sustained by P.W.1 in the accident issued by P.W.9. Aftercompleting the investigation, P.W.11 has filed the charge sheet.7. When incriminating circumstances were put to the accused,the accused would totally deny his complicity with the crime.8.After going through the evidence before him, both the oraland documentary, the learned trial Judge has held that the chargeagainst the accused has not been proved beyond any reasonable doubt https://hcservices.ecourts.gov.in/hcservices/ and accordingly acquitted the accused under Section 235(1) ofCr.P.C. Aggrieved by the findings of the learned trial Judge,P.W.1has preferred this revision.9. Now the point for determination in this revision is whetherthe findings of the learned trial Judge is perverse in nature andthe learned trial Judge has not considered the material evidence andhas given any faulty reasoning with a lack of judicial approach towarrant any interference from this Court?10. Heard Mr. T.P.Manoharan, learned Counsel for the revisionpetitioner, Mr. N.Manoharan,learned counsel appearing for R1, andMr.V.R.Balsubramanian, learned Additional Public Prosecutorappearing for the State-R2 and considered their rival submissions.11.The Point:To attract an offence under Sections 279 and 338 of IPC, theprosecution must prove that at the time of accident, the accused haddriven the vehicle in a rash and negligent manner. Except P.W.1 noother eye witnesses viz., P.Ws 2 to 4 has deposed that at the timeof accident, the accused had driven the bus which involved in theaccident in a rash and negligent manner and that the accused aloneis responsible for the accident. P.W.2 would state that thereasoning for the accident is the curve of the road at the place ofaccident and the accused/driver had driven the bus on the extremewestern side of the road at the time of the accident. It is to benoted in this case that it is not a case of head on collision.According to the evidence of Motor Vehicle Inspector P.W.8, hecould see only scratches on the right side body of the bus near thedriver seat. 12. The explanation given by P.W.1 for the accident is that hecould not go beyond the place where the accident had occurredtowards west because there was a fence on the western side of theroad near the place of accident. P.W.11 the Investigating Officerwho had prepared Ex P2 observation mahazar, in crystal clear term,has admitted that there was no fence found at the place of accidenton the western side. In this regard, the discrepancies found in theevidence of P.W.2 and P.W.3 is also worth mentioning.13. According to P.W.2, after the accident, P.W.1 was foundlying on the bund and not on any thorny fence. But P.W.3 would saythat after the accident, P.W.1 was lying on a thorny fence. Butneither in Ex P2 observation mahazar nor in Ex P9 rough sketch,there is any mention about the presence of thorny fence or thornybush at the place of occurrence on the western side of the road.14. The learned counsel appearing for the revision petitionerrelying on a decision reported in Ayodhya Dube and others-Ram Sumer https://hcservices.ecourts.gov.in/hcservices/ Singh(1981(Supp)Supreme Court Cases 83 would contend that even inthe revision, if it is brought to the notice of the Court ofrevision that the trial Court had not applied its mind or has failedto consider or improperly considered the material evidence placedbefore it or faulty reasoning are stated in the judgment or it wasfound that the judicial approach of the trial Court was lacking, therevisional Court can interfere even with the order of acquittal andto order retrial to avoid the grave miscarriage of justice. Therecannot be two opinions regarding the observation of the Apex Courtin the above said dictum. But the only thing in the case on hand iswhether the trial Court has not applied its mind in the properdirection nor failed to consider the material evidence placed beforeit, or improperly considered the same or any faulty reasoning hasbeen given in the findings or is there any lack of judicial approachof the trial Court to warrant any interference by this Court. But ona perusal of the Judgment of the trial Court will go to show thatthe learned trial Judge has appreciated the evidence in properperspective and has analysed each and every evidence both oral anddocumentary before it, has come to a correct conclusion that theingredient requires under Sections 279 and 338 of IPC has not beenmade out by the prosecution to warrant conviction and accordinglyacquitted the accused, in my view , which does not require anyinterference from this Court.15. The learned counsel appearing for the first respondentrelying on T.R.Manivel-vs- Ramasamy(1998(2) MWN(cri) 332 andcontended that while exercising revisional power in a case ofacquittal, the Court, sitting in revision, cannot appreciate or re-appreciate the evidence on record and cannot go into the merits ofthe evidence on record while exercising the revisional jurisdiction,in case, it interferes with the findings of the learned trialCourt. The exact observation in the above said dictum runs asfollows:"It is now well settled that though theappellate Court has the same powers as the trialCourt of appreciating evidence and coming to itsown conclusion on questions of fact, it shouldnot interfere with an acquittal, unless it findsthat the view taken by the trial Court isunreasonable or perverse. If the view taken bythe trial Court is a reasonably possible view,the appellate Court should not disturb anacquittal merely because it thinks that anotherview is better or more preferable."16. The learned counsel appearing for the first respondentwould contend that there is no appeal has been preferred by theState in this case and P.W1 alone has preferred this revisionagainst the acquittal and in such case, the learned counsel would https://hcservices.ecourts.gov.in/hcservices/ contend that the High Court can exercise its revisional powers onlyin exceptional cases when it is shown that there is a glaring defectin the procedure or there is a manifest error on a point of law inthe findings of the trial Court. For this proposition of law, thelearned counsel appearing for the first respondent would rely on adictum in Kishan Swaroop-vs- Government of NCT of Delhi(JT 1998(4)SC486 wherein it has been held as follows: It is true that it is open to a High Court inrevision to set aside an order of acquittal evenat the instance of private parties, though theState may not have thought fit to appeal, butthis jurisdiction should in our opinion beexercised by the High Court only in exceptionalcases, when there is some glaring defect in theprocedure or there is a manifest error on a pointof law and consequently there has been a flagrantmiscarriage of justice."For the same proposition of law, the learned counsel appearing forthe first respondent relying on another ratio decidendi inBindeshwari Prasad Singh alias B.P.Singh-v- State of Bihar(nowJharkhand) (2002)6 SCC 650) . The observation in the said dictumrelevant for the purpose of deciding this revision runs as follows:"We are, therefore, satisfied that the HighCourt was not justified in interfering with theorder of acquittal in exercise of its revisionaljurisdiction at the instance of the informant.It may be that the High Court on appreciation ofthe evidence on record may reach a conclusiondifferent from that of the trial Court. Butthat by itself is no justification for exerciseof revisional jurisdiction under Section 401 ofthe Code of Criminal Procedure against ajudgment of acquittal. We cannot say that theJudgment of the trial Court in the instant casewas perverse. No defect of procedure has beenpointed out . There was also no improperacceptance or rejection of evidence nor wasthere any defect of procedure or illegality inthe conduct of the trial vitiating the trialitself. At best the High Court thought that theprosecution witnesses were reliable while thetrial Court took the opposite view. This Courthas repeatedly observed that in exercise ofrevisional jurisdiction against an order ofacquittal at the instance of a private party,the Court exercises only limited jurisdictionand should not constitute itself into anappellate Court which has a much widerjurisdiction to go into questions of facts and https://hcservices.ecourts.gov.in/hcservices/ law, and to convert an order of acquittal intoone of conviction. It cannot be lost sight ofthat when a retrial is ordered, the dice isheavily loaded against the accused and thatitself must caution the Court exercisingrevisional jurisdiction." 17. Under such circumstances, I do not find any reason tointerfere with the well considered Judgment of the trial Court inC.C.No.1 of 2003 on the file of the Court of Special JudicialMagistrate, Bhavani which does not require any interference fromthis Court. Point is answered accordingly.18. In fine, the revision is dismissed confirming the Judgmentin C.C.No.1 of 2003 on the file of the Court of Special JudicialMagistrate,Bhavani.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sgTo1. The Special Judicial Magistrate, Bhavani.2. The Chief Judicial Magistrate, Erode.3. The Public Prosecutor, High Court, Madras4. The Inspector of Police, Bhavani Police Station, Bhavani.1 cc to Mr.N.Manoharan, Advocate, sr. 26371Crl.R.C.No.1749/2003RSN (CO)kk 24/4