D. Suresh @ Suresh Kumar vs State

B. Rajendran, J.—The petitioner stood charged and convicted by the learned Judicial Magistrate No. VII, Coimbatore in C.C. No. 436 of

2006 for the of-fence punishable u/s 304-A of IPC and Section 181 of Motor Vehicles Act and sentenced to undergo simple imprisonment for

three months with fine of Rs. 2,000/-, in default to undergo simple imprisonment for a period of two weeks for the offence u/s 304-A of IPC and

sentenced to undergo simple imprisonment for a period of two weeks with fine of Rs. 500/-, in default to undergo simple imprisonment of one

week for the offence u/s 181 of Motor Vehicles Act. Aggrieved over the judgment of conviction, the petitioner filed Criminal Appeal No. 436 of

2006 before the learned District and Sessions Judge, Coimbatore and the same was also dismissed on 18.1.2007. The case of the prosecution is

that on 8.9.2005, the Head Constable attached to the respondent police received information from C.M.C. Hospital, Coimbatore that they have

received a patient with severe injuries on his head. Based on such information, the head constable attached to the respondent police rushed to the

hospital. In the meantime, P.W. 1 received a phone call stating that one Veluchamy, known to him, had sustained injuries while he was riding the

two wheeler being registration No. TN 39 E 8566 after the two wheeler was hit by a three wheeler bearing Registration No. TN 37 AH 9525 at

Bodipalayam Road. Based on such information, P.W. 1 informed the relatives of the said Veluchamy and he also rushed to the hospital, where his

complaint was reduced into writing and marked as Exhibit P-1. Based on such complaint, the case in Crime No. 281 of 2005 was registered for

the offences u/s 279 and 337 of IPC. On 20.9.2005, the said Veluchamy succumbed to the injuries and died, therefore the case was altered into

one u/s 304(A) of IPC. After investigation, the respondent police filed the charge sheet against the accused for the offences punishable under

Sections 279, 394(A) read with Section 3 of the Motor Vehicles Act.

The learned counsel for the petitioner would contend that there is no eye witnesses in this case or there is no evidence to show that it is the

accused who had driven the vehicle in a rash and negligent manner which caused the death of the deceased. P.W. 1 himself is not an eye witness

and he only received a phone call from some one who informed him that Veluchamy had sustained injuries in a road accident. P.Ws. 2 to 4 are

persons who have reached the scene of occurrence after the accident and therefore, their testimony will not in any way lend support to the case of

the prosecution. In the absence of any credible evidence to show that the petitioner was guilty of rash and negligent driving or in any manner

contributed to the death of the deceased, he is entitled for acquittal. In this context, the learned counsel for the petitioner relied on the decision of

the Honourable Supreme Court in Mohammed Aynuddin @ Miyam Vs. State of Andhra Pradesh, to contend that death of the deceased by itself

cannot be taken into consideration to convict and sentence the petitioner in the absence of any evidence to show the negligence on his part.

The learned Government Advocate appearing for the respondent would contend that both the Courts below had taken into consideration the

report of the Motor Vehicle Inspector to show that severe damages have been caused to the offending vehicles, which would indicate the rashness

and negligence with which the petitioner had driven the vehicle. Further, P.W. 9 was examined as a witness on the side of the prosecution, who

was traveling in the three wheeler driven by the petitioner/accused, at the time of accident. P.W. 9 in his evidence has stated about the manner in

which the accident had occurred. Therefore, there are enough evidence available on record to prove the guilt of the petitioner accused and

therefore the Courts below are justified in convicting and sentencing the petitioner, hence, he prayed for dismissal of the Criminal Revision Case.

I heard the counsel for both sides and perused the materials available on record. The point for consideration in this Criminal Revision Case is

whether the petitioner/accused had driven the three wheeler in a rash and negligent manner and was in any way responsible for the death of the

deceased Veluchamy.

The prosecution heavily relied on the evidence of P.W. 9, who is stated to have travelled in the vehicle driven by the petitioner/accused at the

time of the accident. The evidence of P.W. 9 will not be of any use for the prosecution to prove the guilt against the petitioner inasmuch as he only

deposed this in his chief-examination:

According to P.W. 9, the deceased died on the spot, which is factually incorrect inasmuch as the deceased died on 20.9.2005 i.e., after 11

days from the date of accident on 8.9.2005. However, P.W. 9 further states that immediately after the accident, the deceased was taken to

Government Hospital, Coimbatore where he was admitted. Further, P.W. 9 did not say that the petitioner/accused had driven the vehicle in a rash

and negligent manner which caused the death of the deceased. In fact, P.W. 9 only says that the vehicle came in the opposite direction dashed

against the vehicle in which he was traveling. Even in the examination, there was no suggestion put to P.W. 9 as to whether the vehicle which was

driven by the petitioner/accused was driven in a rash and negligent manner and it resulted in the death of the deceased. Therefore, based on the

inconsistent testimony of P.W. 9, it is unsafe to base a conviction against the petitioner/accused.

In the decision of the Honourable Supreme Court in Mohammed Aynuddin @ Miyam v. State of Andhra Pradesh (supra), which was relied on

by the counsel for the petitioner, it was categorically held that in the absence of any evidence to show that the driver of the offending vehicle had

driven it in a rash and negligent driving or in any way responsible for the accident, the conviction and sentence imposed on him are unsustainable. It

was further held that negligent of the driver of the offending vehicle cannot always be presumed to be a rash and negligent one. In para 7 of the said

decision, it was held as follows:

It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima

facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a

case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while

boarding the bus, no presumption of negligence can be drawn against the driver of the bus.

In the present case, as rightly pointed out by the counsel for the petitioner, there is no credible evidence to show that it is the petitioner who had

driven the three wheeler-Minidor Auto in a rash and negligent manner which caused the death of the deceased. P.W. 1 and 3 have reached the

accident spot after the accident. P.W. 2 is a hearsay witness, P.W. 4, who is the wife of the deceased, also reached the accident spot after the

accident on hearing the same through P.W. 1. P.W. 5 is the Motor Vehicle Inspector who inspected the vehicles and filed his report. P.W. 6 is the

Doctor who treated the deceased immediately after he was admitted in the hospital. P.W. 7 and 8 are mahazar witnesses, P.W. 10 is the owner of

the two wheeler, which he lent it to the deceased on his request. P.W. 11 is the Head Constable and P.W. 12 is the investigation officer.

Therefore, except P.W. 9, there is no direct evidence who have witnessed the accident and even P.W. 9 did not support the case of the

prosecution. The Court below, only on surmises that the vehicle could have been driven by the petitioner in a rash and negligent manner, had

convicted and sentenced the petitioner. Merely because the vehicle involved in an accident and which resulted in the death of the deceased, the

petitioner cannot be fastened with any criminal liability. Therefore, the conviction and sentence imposed on the petitioner for the offence u/s 304-A

of IPC has to be set aside and accordingly it is set aside.

The petitioner was also charged for the offence punishable u/s 181(3) of the Motor Vehicles Act for having driven the vehicle without a valid

licence at the time of accident, for which he was sentenced to undergo imprisonment for two weeks with fine of Rs. 500/-, in default to undergo

simple imprisonment for one week. The learned counsel for the petitioner submitted that the petitioner had already paid the fine amount and also

underwent imprisonment, by relying on the order dated 8.2.2007 passed by this Court in M.P. No. 1 of 2007 in Crl. R.C. No. 182 of 2007

suspending the sentence imposed on the petitioner and granting him bail. Therefore, the learned counsel for the petitioner prayed this Court to hold

that the sentence already undergone by the petitioner is sufficient for the offence u/s 181 of the Motor Vehicles Act.

Considering the submission of the counsel for the petitioner and the fact that the major offence for which the petitioner was tried namely 304-A

of IPC has not been proved by the prosecution and the petitioner also undergone sentence as could be evident from the order dated 8.2.2007

passed by this Court, I hold that the conviction imposed on the petitioner for the offence u/s 181 of Motor Vehicles Act is valid, however, the

sentence imposed on the petitioner for the offence u/s 181 of Motor Vehicles Act can be reduced to the period already undergone by him.

Accordingly, the sentence imposed on the petitioner for the offence u/s 181 of Motor Vehicles Act is reduced to the period already undergone by

him. With the above modification in sentence, the Criminal Revision Case is partly allowed.