BAIL SLIPThe v. The State rep byThe Inspector of Police,Traffic Investigation Branch (central)Coimbatore

BAIL SLIPThe Accused/Petitioner was released on bail as per High Court Orderdated 6.3.2004 and made in Crl.MP.No.2657/2004 in Crl.R.C.No.412/2004.IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 02.07.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.R.C.No.412 of 2004K.Viswanathan .. Petitioner/Accusedvs.The State rep byThe Inspector of Police,Traffic Investigation Branch (central)Coimbatore. .. Respondent/ComplainantPrayer:- This revision petition has been preferred against the judgmentdated 26.2.2004 in C.A.No.368 of 2003 passed by the learned AdditionalDistrict and Sessions Judge, FTC-I, Coimabtore, modifying the judgmentmade in C.C.No.47 of 2002 on the file of the Judicial Magistrate No.VIII,Coiambatore, dated 22.10.2003.For Petitioner :Mr.K.KalyanasundaramFor Respondent :Mr.V.R.BalasubramanianAdditional Public ProsecutorJUDGMENTThis revision has been preferred against the judgment inC.A.No.368/2003 on the file of the Additional District and Sessions Judge(FTC.No.I), Coimbatore, which had arisen against the judgement inC.C.No.47 of 2002 on the file the Judicial Magistrate No.VIII, Coimbatore.The accused has been charged under Section 279, 337, 338 and 304 IPC andalso under Section 134(a)(b) of Motor Vehicles Act r/w 187 IPC.2.The learned trial Judge, after taking cognizance of the offence, onappearance of the accused on summons, issued copies under Section 207 ofCr.P.C., and when the charges were explained to him and questioned, he https://hcservices.ecourts.gov.in/hcservices/ pleaded not guilty. On the side of the prosecution, P.W.1 to P.W.14 wereexamined and Ex.P.1 to Ex.P.9 were marked. 3.P.W.1 is the complainant. According to him, the occurrence hadtaken place on 16.2.2002 at about 6.00 pm while he was proceeding in hismotor cycle on the Coimbatore - Sathyamangalam road he saw his brother-in-law Muthukumar near Barathi nagar bus stop and he stopped his motor cycleand had conversation with this brother-in-law, at that time, his father-in-law deceased came in a by-cycle from west to east and at that time theaccused was driving the ill-fated bus rashly and negligently and dashedagainst the by-cycle in which his father-in-law was riding and the rightside front wheel of the bus ran over the by-cycle causing grievousinjuries on the right side of the head and right hand and right elbowcausing instantaneous death and that the bus had also hit on the scooterin which Ubayathulla and his son were travelling and both Ubayathulla andhis son sustained injuries and that Ex.P.1-complaint was preferred by him.The accused was driving the private bus bearing registration No.TN.40-A7997.4.P.W.2 knows both the accused as well as P.W.1. According to him,when he was talking with P.W.1 on 16.2.2002 at about 6.00 pm near theplace of occurrence, the accused had driven the private bus bearingregistration No.TN-40-A 7997 rashly and negligently and dashed against theby-cycle in which his father was riding resulting his instantaneous deathand that the bus has also hit on the scooter which was proceeding in theopposite direction causing injuries on the rider of the scooter as well asthe pillion rider and that the injured were removed to the hospital.5.P.W.3 is the Motor Vehicle Inspector, who had inspected the ill-fated bus and issued Ex.P.2-certificate stating that the accident had notoccurred due to any mechanical defect of the bus.6.P.W.4 is also an eye witness, who would corroborate the evidence ofP.W.1 & P.W.2 to the effect that the accident had occurred only due to therash and negligent driving of the driver of the bus.7.P.W.5 has also corroborated the evidence of P.W.1, P.W.2 and P.W.4.8.P.W.6 is a scooterist, who was also hit by the ill-fated bus at thetime of the accident. He has also corroborated the evidence of P.W.1,P.W.2, P.W.4 & P.W.5.9.P.W.7 is the son of P.W.6, a minor and a pillion rider of thescooter, which involved in the accident.10.P.W.12 is the Sub-Inspector of Police, who had registered the caseunder Cr.No.90 of 2002 under Section 279, 337, 304(A) IPC. Ex.P.7 is thecopy of the FIR.11.P.W.14 is the Investigating Officer, who on the basis of https://hcservices.ecourts.gov.in/hcservices/ Ex.P.1-complaint had visited to the place of occurrence and preparedobservation mahazar-Ex.P.3 in the presence of P.W.18. He had also drawnthe rough sketch-Ex.P.8. He has conducted inquest on the corpse of thedeceased and Ex.P.9 is the inquest report. He has examined the witnessesand recorded their statements. P.w.14 has sent the corpse of the deceasedfor post-mortem through post-mortem constable P.W.13.12.P.W.11 is the doctor, who had conducted autopsy on the corpse ofthe deceased and issued Ex.P.6-post mortem report. The doctor has opinedthat due to the injuries on the skull and due to hemorrhage the deceasedwould have died.13.After completing the formalities P.W.12 has filed the charge sheetagainst the accused on 16.4.2002 under Section 279, 337, 338 and 304(A)IPC and under Section 134(a)(b) of the Motor Vehicles Act r/w 187 IPC.14.When incriminating circumstances were put to the accused underSection 313 of Cr.P.C., the accused denied his complicity with the crime.After going through the oral and documentary evidence, the learned trialJudge has find the accused guilty under Section 279, 337, 338 & 304 (A)IPC and 134(a)(b) of Motor Vehicles Act r/w 187 IPC and sentenced theaccused under Section 279 IPC to undergo 6 moths RI and a fine ofRs.1,000/- with default sentence, and sentenced the accused under Section337 IPC to undergo 6 months RI and a fine of Rs.500/- with defaultsentence and sentenced the accused under Section 338 IPC to undergo 6months RI and a fine of Rs.1000/- with default sentence and sentenced theaccused under section 304(A) IPC to undergo one year RI and a fine ofRs.5,000/- with default sentence and sentenced the accused under Section134(a)(b) of the Motor Vehicles Act r/w 187 IPC to pay a fine of Rs.500/-with default sentence.15.Aggrieved by the findings of the learned trial Judge, the accusedhas preferred an appeal before the Additional District and Sessions Judge,FTC.No.I, in C.A.No.368 of 2003. The learned first appellate Judge aftergoing through the evidence both oral and documentary and also afterhearing both side, had concurred with the trial Court in convicting theaccused under section 279, 337, 338 & 304(A) IPC and confirmed theconviction under Section 279, 337, 338 & 304(A) IPC, but modified thesentence to three months RI instead of one year RI under Section 304(A)IPC, which necessitated the accused to prefer this revision.16.Now the point for determination in this revision is whether theconviction and sentence imposed on the accused is liable to be set asidefor the reasons stated in the memorandum of revision?17.The Point:- The eye witnesses in this case are P.W.1, P.W.2, P.W.4to P.W.7. Out of them P.W.6 & P.W.7 are the injured eye witnesses. Thelearned counsel appearing for the revision petitioner relying on theevidence of P.W.2 and P.W.4 and the evidence of P.W.1 incross-examination, would contend that the occurrence had not taken placeas alleged by the prosecution and the place of occurrence itself haswrongly been stated by the prosecution witness. But P.W.1 even though inthe cross-examination would depose that the road on which the accident hadoccurred is a the north-south road. But in the chief-examination P.W.1 has https://hcservices.ecourts.gov.in/hcservices/ clearly stated that his father-in-law was riding on the by-cycle from westto east and the ill-fated bus was driven by the accused from east to west.Even in the cross-examination P.W.1 has clearly stated that the injuredP.W.6 had also came in a scooter from west to east and the cyclist wasalso proceeding on his cycle from west to east. Even if any confusion inthe direction of the road as per the evidence of P.Ws.2, 4 & 6, theevidence of the Investigating Officer-P.W.14, it is clear that the road onwhich the accident had taken place is running from east to westSathyamangalam to Coimbatore. Ex.P.8 is the rough sketch prepared byP.W.4, which contains the correct location of the place of occurrence.There is absolutely no contra evidence let in by the accused to show thatEx.P.8-rough sketch is incorrect and not showing the correct directions ofthe place of occurrence on lie. A perusal of Ex.P.8-rough sketch will goto show that the ill-fated bus was proceeding from east to west i.e., fromSathyamangalam to Coimbatore and the scooter in which P.Ws.6 & 7 weregoing towards Sathyamangalam, in the opposite direction of the ill-fatedbus, which was driven by the accused. The scooter is also shown on theextreme right side of the road. But the cycle in which the deceased wasriding was shown below the front left wheel of the ill-fated bus. So fromEx.P.8 it is clear that since the cycle had taken a swerve to his right,the front left side wheel of the bus hit and ran over the cyclist. Theinjured witnesses P.Ws.6 & 7 speak to the fact that at the time ofaccident the accused was driving the bus very rashly and negligently. Butthe fact that the accident had occurred due to the contributory negligenceof the cyclist cannot also be ruled out because Ex.P.8 shows thecontributed negligence of the cyclist. Admittedly the accident hadoccurred in a national high way. But there is no explanation forthcomingon the side of the accused for hitting the scooter on which P.Ws.6 & 7were proceeding from Coimbatore to Sathyamangalam to their extreme leftside of the road. Hence, I am of the opinion that the accident hadoccurred not only due to the rash and negligent act of the accused butalso due the contributory negligence of the cyclist and to meet the endsof justice the sentence alone can be modified to that of the periodalready undergone instead of one month and three months RI. Point isanswered accordingly.18. In the result, the revision is dismissed confirming the convictionpassed by the First appellate Court in C.A.No.368 of 2003 on the file ofthe Additional District and Sessions Judge, FTC-I, Coimbatore, but thesentence alone is modified as here under. The sentence imposed on theaccused by the first appellate Court under Section 279, 337, 338 & 304(A)IPC is modified to that of the period already undergone instead of one https://hcservices.ecourts.gov.in/hcservices/ month and three months RI respectively. In other respects the findings ofthe first appellate Court will sustain.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssvTo,1.The Additional District & Sessions Judge, FTC-I, Coimbatore.2.The Principal District & Sessions Judge, Coimbatore.3.The Judicial Magistrate No.VIII, Coimbatore.4.-do- The Chief Judicial Magistrate, Coimbatore.5.The Inspector of Police, Trafic Investigation Branch (central) Coimbatore.6.The Public Prosecutor, High Court, Madras.+ 1 CC To Mr.K.Kalyanasundaram, Advocate SR NO.39829Crl.R.C.No.412 of 2004gg[co]Gp/13.7