Anandan v. State by Inspector of PoliceTraffic InvestigationK4,Anna Nagar Police Station, Chennai

BAIL SLIP--------The Appellant/Petitioner in Crl.R.C.No. 425/04 Viz Anandan, (Accusedin CC.No. 2268/2002 dated 26.5.2000 on the file of the Chief MetropolitanMagistrate, Chennai was released on Bail as per order of this Court dated6.3.204 made in Crl.M.P.No. 2735/2004.IN THE HIGH COURT OF JUDICATURE AT MADRASDATE :06.07.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.R.C.No.425 of 2004Anandan ..Petitioner/accusedvs.State by Inspector of PoliceTraffic InvestigationK4,Anna Nagar Police Station, Chennai...Respondent/complainant This Revision is filed against the Judgment dated 27.02.2004 passedby the First Additional Sessions Judge,Chennai in C.A.NO.169 of 2003confirming the Judgment dated 26.5.2003 passed by the Chief MetropolitanMagistrate, Egmore, Chennai-8 in C.C.No.2268 of 2002.For Petitioner : Mr.S.Ananthanarayanan For Respondent : Mr.V.R.Balasubramaniam Additional Public Prosecutor O R D E RThis revision has been preferred against the judgment in C.A.No.169of 2003 on the file of the First Additional Sessions Judge, Chennai inwhich the learned Sessions Judge has confirmed the Judgment of the learnedChief Metropolitan Magistrate in C.C.No.2268 of 2002 wherein the accused,who is the revision petitioner herein, has been convicted and sentencedunder Section 304 (A) of IPC to undergo one year RI and a fine ofRs.5000/- with default sentence and also convicted under Section 184 ofthe Motor Vehicles Act and a fine of Rs.500/- with default sentence. https://hcservices.ecourts.gov.in/hcservices/

2. Taking cognizance of the offence, the learned Chief MetropolitanMagistrate has issued summons to the accused and on his appearance,copies under Section 207 of Cr.P.C were furnished to him and when theoffence was explained to the accused, the accused pleaded not guilty.3. Before the trial Court, P.Ws 1 to 8 were examined and Exs P1 toP12 were marked.4. P.W.1 is the husband of the victim deceased. According to P.W.1,on the fateful day ie., on 17.9.2001 at about 9.00p.m., he along with hiswife (deceased) crossed the road near Selvarangam Nursing Home, half waynear the median and at that time, the accused was riding in his motorcycle bearing Registration No. TN-04-9389 from the northern side, rashlyand negligently and dashed against his(P.W.1)wife, who had sustainedinjuries on her head and all over her body. He has identified the accusedas the person, who was riding the ill fated motor cycle at the time ofthe occurrence. He had preferred Ex P1 complaint to the police.According to P.W.1, soon after the accident , his wife was admitted in thenearby Selvarangam Nursing Home ,but she was immediately removed toApollo Hospital as per the advise of the doctor at Selvarangam NursingHome and that without response to the treatment given at Apollo Hospital,she breathed her last on 19.9.2001.4a. P.W.2 has corroborated the evidence of P.W.1 . Since in thecross examination, he has deposed that he has not seen the occurrence, hewas treated as a hostile witness by the Additional Public Prosecutor.P.W.3 is the doctor, who had treated the victim at Apollo Hospital and hasgiven Ex P2 wound certificate showing that the victim had sustainedgrievous injuries on the head and that she was referred to a Neuro Surgeonin the Apollo Hospital. P.W.4 is the doctor, who had conducted autopsy onthe corpse of the victim. Ex P3 is the postmortem certificate. The Doctorhas opined that due to the injuries, the victim has sustained in thehead, she had died. 4b. P.W.5 is the doctor, who had treated the accused for theinjuries, he had sustained in the accident due to skid of the motor cyclewhich involved in the accident. Ex P4 is the wound certificate issued tothe accused . He has also examined the pillion rider of the motor cyclewhich involved in the accident by name Murthy, who had sustained injuriesin the accident and issued Ex P5 wound certificate for the injuries, thesaid Murthy had sustained.4c. P.W.6 is the Motor Vehicle Inspector, who has examined the motorcycle, which involved in the accident. He who had issued Ex P6 reportwhich shows that the accident has not occurred due to any mechanicaldefects in the motor cycle which involved in the accident. P.W.7 has notsupported the case of the prosecution. Hence he was treated as a hostilewitness. P.W.8 is the Inspector of Police, who is in charge of K4, Police https://hcservices.ecourts.gov.in/hcservices/ Station,would depose that First Information Report in the case wasregistered by Sivasankaravadivelu, the then Inspector of Police on thebasis of the complaint Ex P1 and registered the case under Crime No.442 of2001 under Sections 279,394 A of IPC. Ex P7 is the copy of the firstInformation report. Since Sivasankaravadivelu was ill,later P.W.8 theInspector of Police, who is in charge of K4 Police Station has deposed onbehalf of the said Sivasankaravadivelu that Ex P8 rough sketch was drawnby Sivasankaravadivelu. Ex P9 is the altered First Information Reportdated 20.9.2001. Ex P10 is the death intimation received from the ApolloHospital. The inquest was conducted by the then Inspector of Police ThiruSivasankaravadivelu. Ex P11 is the inquest report. He has also examinedthe witnesses and recorded their statements. The accused was arrested bySivasankaravadivelu on 1.10.2001 at his residence and notice under Ex P12 under Section 209 of Motor Vehicles Act was served on the accused.After completing the investigation, the then Inspector of Police has filedthe charge sheet against the accused.5. When incriminating circumstances were put to the accused, hedenied his complicity with the crime. The accused has not examined anywitness on his side.6. After going through the evidence both oral and documentary, thelearned trial Judge has come to a conclusion that the charge levelledagainst the accused under Section 304(A) of IPC and under Section 184 ofMotor Vehicles Act has been proved and accordingly, the learned trialJudge has convicted and sentenced the accused to under go one yearRigorous imprisonment and imposed a fine of Rs.5000/- under Section 304(A)of IPC with default sentence and under Section 184 of the Motor VehiclesAct, imposed a fine of Rs.500/- with default sentence. Aggrieved by thefindings of the learned trial Judge, the accused had preferred an appealin C.A.No.169 of 2003 before the First Additional Sessions Judge, ChennaiThe learned first appellate Judge , after giving due deliberation to thesubmissions made by the counsel appearing for both sides, and afterscanning the evidence adduced before the trial Court, has ultimatelyconcurred with the findings of the trial Judge, thereby confirming theJudgment of the trial Court, which necessitated the accused to approachthis Court by way of this revision.7. Now the point for determination in this revision is whether thefindings of the learned trial Judge in C.C.No.2268 of 2002 on the file ofthe learned Chief Metropolitan Magistrate, Egmore, Chennai which wasconfirmed by the learned First Additional Sessions Judge ,Chennai inC.A.No.169 of 2003 is liable to be set aside for the reasons stated in thememorandum of revision?8. Heard Mr.S.Ananathanarayanan, learned counsel for the revisionpetitioner and Mr.V.R.Balasubramaniam, learned Additional PublicProsecutor for the State and considered their respective submissions. https://hcservices.ecourts.gov.in/hcservices/

9.The Point:Mr.S.Ananthanarayanan, the learned counsel appearing for the revisionpetitioner would focus the attention of this Court to the evidence ofP.W.8 in the cross examination, who would admit that the accident hadoccurred in the midst of the road, while the victim and P.W.1 werecrossing the road where there is no zebra crossing and particularly at theplace of occurrence ,there was a median to the height of 4 feet and thatthe victim was standing at the time of accident near the median, wherethere was no way to cross the road and that there is an iron fence to theheight of 4 feet at the place of accident. A perusal of Ex P8 roughsketch will also go to show that there is no zebra crossing at the placeof the accident where the victim as well as P.W.1 crossed the road. P.W.1who is an eye witness to the occurrence would also admit in the crossexamination that zebra crossing is about 40 feet away from the place wherehe and his wife the victim had crossed the road. So the learned counselappearing for the revision petitioner would contend that the negligence onthe part of the victim has been proved through the evidence of P.W1 aswell P.W.8 and Ex P8 rough sketch to show the manner under which theaccident had occurred.10. The learned counsel appearing for the revision petitioner relyingon a decision reported in Chandrasekar-v- State by Inspector of Police,Dharmapuri Police Station, Dharmapuri(1991 L.W.(cri) 232)and contended that if the circumstances proclaimed clearly andunambiguously negligence of the victim then the accused cannot be heldliable under Section 304(A) of IPC. The exact observation of the learnedJudge of this Court in the above said dictum runs as follows:" In a number of decided cases, it has been held thatas a rule, mere proof that an event had happened or anaccident had occurred, the cause of which was unknown,was not evidence of negligence. But the peculiarcircumstances constituting the event or accident, in aparticular case, may themselves proclaim clearly andunambiguously, the negligence of some body as thecause for the event or accident. It is only to suchof these cases that the maxim res ipsa loquitor mayapply, if the cause of the accident was unknown and noreasonable explanation as to the cause was forthcomingfrom the accused. Further the event or accident mustbe of a kind, which does not happen in the ordinarycourse of things, if those who have management andcontrol, use due care. It may be in such cases that https://hcservices.ecourts.gov.in/hcservices/ the Court must be further satisfied that the eventwhich caused the incident was within the control ofthe accused. The reason is not far to seek,for , hewould be in a better position to explain as to how theaccident had occurred."The negligence on the part of the victim has been proved in this casethrough P.W.1 and P.W.8 and also under Ex P8 rough sketch to the fact thatshe has not crossed the road where there is zebra crossing for crossingthe road by the pedestrian.11. The learned Additional Public Prosecutor placed a dictum of thisCourt in Ponnusamy-v-The King(1950 Madras Weekly Notes(cri) 19)wherein it has been held by a learned Judge of this Court that thecontributory negligence has no place in a criminal law. The facts of thesaid case is that the accused, a lorry driver who was driving a lorrybearing Registration No. M.S.P.3163 on the road between Tambaram andVandalur with a load of furniture intended to be delivered to a school andwhile in the process of over taking three bullock carts heavily laden withhay, first swerved swiftly to the right and then quickly to the left, haddashed against the man aged 30 going along on the road in the oppositedirection. It was contended on behalf of the accused that the victim atthe time of the accident was under the influence of some intoxicant andwas walking along tipsily and had invited the accident only due to hisconduct. Only under such circumstances, it has been held by the learnedJudge of this Court that the contributory negligence has no place in acriminal law. The admitted fact of the said case is that the victim wasgoing along the road in the opposite direction to the direction the lorrywas driven by the accused in that case and it has been proved that whileover taking three bullock carts with a load of hay, the accused hadswiftly swerve the vehicle to his left and right in a high speed haddashed against the victim who was proceeding along the road on theopposite directions. But that is not the case herein. Here, the victim wasadmittedly in the midst of the road near the median, where there is nozebra crossing provided for the public for crossing the road. Theaccused, according to P.W.1 with a pillion rider had skidded as per theevidence of the Motor Vehicle Inspector, had dashed against the victim.Both the accused as well as the pillion rider got injured in the accidentand they were treated by P.W.5. Under such circumstances, it cannot besaid that the accident had occurred only due to a rash and negligent actof the accused alone. If the victim would have crossed the road in theplace intended for crossing, the accident would have been averted. But thefact remains that the accused had consumed liquor at the time, whiledriving the vehicle. As seen from the evidence of P.W.5, who had issued https://hcservices.ecourts.gov.in/hcservices/ Ex P4. had examined the accused soon after the occurrence has stated inhis evidence that in his examination, he could see the smell of alcohol inthe mouth of the accused. But there is no cross examination on thisaspect which lead inference that the accused had driven the vehicle onlyunder the influence of arrack at the time of accident which warrantsconviction under Section 184 of the Motor Vehicles Ac not under Section304(A) of IPC. Under such circumstances, I am of the view that theaccused is liable to be convicted and sentenced under Section 184 of theMotor Vehicles Act. The point is answered accordingly.12. In fine, the revision is allowed in part and the conviction andsentence of the accused under Section 304(A) of IPC is set aside. But theconviction of the accused under Section 184 of the Motor Vehicles Act bythe trial Court is confirmed by the first appellate Court is herebyconfirmed and the sentence has been enhanced to a fine of Rs.2000/-instead of Rs.500/- in default to under go two months simple imprisonment.13. The learned counsel appearing for the revision petitionerrepresents that the accused had already paid a fine amount of Rs.5000/-before the trial Court which can be awarded as compensation to thevictim. Besides, the fine under Section 184 of the Motor Vehicles Act ,the accused is directed to pay a compensation of Rs.5000/- to the legalrepresentatives of the victim. The fine amount paid under Section 304(A)of IPC is to be withdrawn by the accused on a proper application and thesame is to be paid to the Legal representatives of the victim towardscompensation in the presence of the trial Court within a period of onemonth from the date of receipt of a copy of this order.sgSd/-Assistant Registrar,/true copy/Sub Assistant Registrar.To, 1.The First Additional Sessions Judge, Chennai.2. The Principal Sessions Judge, Chennai.3. The Chief Metropolitan Magistrate, Egmore, Chennai4. The Public Prosecutor, High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/

5. The Inspector of Police, Traffic Investigation,K4, Anna Nagar, Police station, Chennai.6. The Public Prosecutor, High Court, Chennai.+ 2 ccs to Mr. A. Arasu, Ganesan, Advocate sR 40709TEJ (co)sg6/8/07Crl.R.C.No.425 of 200406.07.2007