THE HONOURABLE MR v. State byThe Sub-Inspector of Police

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 10.08.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.R.C.No.909 of 2003Ayyanamurthy .. PetitionerVs.State byThe Sub-Inspector of Police,Keevalur Police Station,nagapattinam,(Cr.No.520/1998) .. RespondentPrayer:- This revision has been preferred against the judgmentsdated 20.3.2003 in C.A.No.7 of 2003 passed by the learnedDistrict Principal Sessions Judge, Nagapattinam, modifying thejudgment in STC.No.1061 of 2002 on the file of the JudicialMagistrate, Nagapattinam, dated 08.01.2003.For Petitioner :Mr.M.Vijayaraj For Respondent :Mr.V.R.BalasubramanianAdditional Public ProsecutorJUDGMENTThe judgment passed in C.A.No.7 of 2003 on the file of thePrincipal Sessions Judge, Nagapattinam, is under challenge in thisrevision. The accused is a driver in Tamil Nadu TransportCorporation bus. On 5.9.1998 at about 10.00 am, the accused whiledriving the State transport Corporation bus bearing RegistrationNo.TN-29-N-0491 from Nagapattinam to Tiruvarur in a rash andnegligent manner while overtaking another bus proceeding in frontof him had dashed against a tree on the right side of the roadcausing injuries to P.W.1-Aruldass, a passenger in the said bus atthat time. The accused has been charged under Sections 279 & 338IPC. https://hcservices.ecourts.gov.in/hcservices/

2.The learned Judicial Magistrate, after taking cognizance ofthe offence, took the case on file as STC.No.1061 of 2002 andissued summons to the accused. On appearance of the accused, thelearned Judicial Magistrate has furnished copies under Section 207of Cr.P.C, and when charges were framed and questioned, theaccused pleaded not guilty. Before the trail Court, P.W.1 toP.W.9 were examined and Ex.P.1 to Ex.P.7 were exhibited. Nomaterial objects marked.3.P.W.1 is the injured Aruldass. According to him, theaccident had occurred 2 kms away from Kilvaur at the TiruvarurNagapattinam main road while he was proceeding in the said TamilNadu State Transport Corporation bus bearing registration No.TN-29-N-0491. According to him, he was sitting on the rear side ofthe bus along with his family and that the driver of the bus, theaccused herein, while overtaking another bus which was proceedingin the same direction, had driven the bus rashly and negligentlyand dashed against the tree which was standing on the right sideof the road resulting grievous injuries on his right upper handand that he had preferred Ex.P.1-complaint, after he wasdischarged from the hospital.4.P.W.2 is the wife of P.W.1. She would depose that at thetime of occurrence, she was also traveling along with P.W.1, herhusband in the same bus, and the accused, the driver of the ill-fated bus, while overtaking another bus had dashed against a treestanding on the right side of the road resulting the glass in thewindow pan got broken, fell on the right hand of her husband P.W.1causing grievous injury and that P.W.1 was taken to governmenthospital at Tanjure by the accused in the same bus.5.P.W.3 is the Motor Vehicle Inspector, who had inspected theill-fated bus on 6.3.1999 at 13.45 hours and issued Ex.P.2-certificate stating that there is no mechanical defect in the bus,which involved in the accident.6.P.W.4 is the conductor of the bus which involved in theaccident. He has supported the case of the prosecution. He wastreated as a hostile witness.7.P.W.5 is the the Sub-Inspector of Police Keevelur PoliceStation, who had registered the case on the basis of Ex.P.1-compalint under Keevelur police station Cr.No.520 of 1998 underSection 279 & 338 IPC. Ex.P.3 is the copy of FIR. He had visitedthe place of occurrence and had drawn a rough sketch Ex.P.4 andhas prepared an observation mahazar Ex.P.5 in the presence ofP.W.6. The trip sheet for the ill-fated bus bearing registrationNo.TN-29-N-0491 is Ex.P.6. He has examined the witnesses. Butthe statements have already been recorded by P.W.8, the head https://hcservices.ecourts.gov.in/hcservices/ constable, who had made initial investigation in this case. Hehad arrested the accused and released on bail on 6.3.1999. He hasobtained wound certificate from the doctor, who had examined P.W.1after the occurrence. P.W.8 is the head constable, who hadrecorded the statement of P.W.18.P.W.7 is the successor of P.W.5, who after completing theinvestigation had filed the charge sheet against the accused.9.When incriminating circumstances were put to the accusedunder Section 313 of Cr.P.C., he would deny his complicity withthe crime. He has not examined any witness on his side. Aftergoing through the evidence both oral and documentary, the learnedtrial Judge has come to the conclusion that the charges underSection 279 & 338 levelled against the accused have been provedbeyond any reasonable doubt by the prosecution and accordinglyconvicted the accused under Section 279 & 338 IPC and sentencedthe accused to undergo 1 week SI and slapped a fine of Rs.750/-under Section 279 IPC and sentenced the accused to undergo 1 weekSI and levied a fine of Rs.1,000/- with default sentence.Aggrieved by the findings of the learned trial Judge, the accusedpreferred an appeal in C.A.No.7 of 2003 before the PrincipalSessions Judge, Nagapattinam, who after due deliberations andafter scanning the evidence, has modified the sentence imposed bythe trial Judge by setting aside the sentence of 1 week SI whileconfirming the fine imposed by the learned trial judge underSection 279 and 330 IPC, which necessitated the accused to preferthis revision.10.Heard the learned counsel appearing for the revisionpetitioner Mr.M.Vijayaraj and the learned Additional PublicProsecutor Mr.V.R.Balasubramanian and considered their respectivesubmissions.11.Now the point for determination in this revision iswhether the conviction and sentence of the learned first appellateJudge in C.A.No.7 of 2003 on the file of the Principal SessionsJudge, Nagapattinam, is sustainable for the reasons stated in thememorandum of revision?12.The Point:- The learned counsel for the revisionpetitioner would take me through the entire evidence of theprosecution witnesses and also pointed out the discrepancies madein the statement of P.W.1 before the Court and before the doctor,who had examined him. The doctor, who had examined P.W.1, theinjured, was not examined in this case. But the copy of theaccident register alone has been marked as Ex.P.7 throughInvestigating Officer P.W.5. In Ex.P.7 it has been noted by thedoctor, who had examined P.W.1 for the injury sustained by P.W.1,as alleged to have been sustained in moving bus at Veevaluraround 4.00 am on 5.9.1998. But as per Ex.P.3, FIR, theoccurrence is said to have occurred at 9.10 am on 5.9.1998. https://hcservices.ecourts.gov.in/hcservices/ Admittedly the FIR was lodged only on 16.9.1998 ie., 11 days afterthe occurrence. The reason given in the evidence of P.W.1 is thatsoon after the occurrence he was admitted in the GovernmentMedical College hospital at Tanjure by the driver and conductor ofthe bus which involved in the accident and that only after thedischarge from the hospital he had preferred the complaint. It isseen from Ex.P.3-FIR that P.W.1 was discharged from the hospitalon 12.9.1999 itself. But the FIR was lodged only on 16.9.1998.There is no explanation forthcoming from the side of theprosecution why the intimation was not sent from the hospital tothe concerned police even after the admission of P.W.1 in theTanjore Medical College Hospital on 5.9.1998 as an inpatient inward No.5. The learned Additional Public Prosecutor would fairlyconcede that according to the complaint preferred by P.W.1, he hadsustained injuries due to the fall of glass pieces from thewindow pan of the bus due to the impact of hit against the tree atthe time of occurrence. But no glass pieces were recovered fromthe place of occurrence under mahazar by the police and producedbefore the trial Court. Further it is the case of the prosecutionthat while overtaking another bus the accused had dashed againstthe tree, which was standing on the right side of the road at theplace of occurrence at Tiruvarur Nagapattianam main road. Thelearned counsel for the revision petitioner would point out thedeposition in the cross-examination of P.W.1 wherein he hadadmitted that there was no trees at the place of occurrence.P.W.1 would depose in the cross-examination that eventhough he ishaving the habit of taking drinks, on the date of occurrence hehas not consumed any liquor. But in Ex.P.7 copy of the accidentregister the doctor has entered that P.W.1 was under the influenceof Alcohol. Under such circumstances, it cannot be said that theprosecution has proved the guilt of the accused beyond anyreasonable doubt. Point is answered accordingly.13.In the result, the revision is allowed and the convictionand sentence imposed by the learned first appellate Judge inC.A.No.7 of 2003 against the accused under Section 279 & 338 IPCare set aside and the accused is acquitted of the charges levelledagainst him. Fine if any paid shall be refunded to the accused.ssvSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To,1.The District Principal Sessions Judge, Nagapattinam.2.The Judicial Magistrate, Nagapattinam.3.-do-the Chief Judicial Magistrate, Nagapattinam.4.The Public Prosecutor, High Court, Madras.5.The Sub-Inspector of Police, KeeValur Police Station, Nagapattinam. (Cr.No.520 of 1998)+ ONE CC TO MR. N. VIJAYARAJ, ADVOCATE SR NO. 50208nm(21.08.07)Crl.R.C.No.909 of 2003