E. Shahul Hameed vs State

R. Mala, J.—This Crl. R.C. is filed against the judgment dated 3.4.2006 in Crl.A. No. 300 of 2005 on the file of the II Additional Sessions

Court, Chennai, confirming the judgment of conviction and sentence, dated 22.7.2005 in C.C. No. 4731 of 2005 on the file of IV Metropolitan

Magistrate''s Court, Saidapet, Chennai.

The skeleton of the case of the prosecution is as follows:

On 23.6.2005 at 8 p.m., when the deceased along with his son Karthik/PW1 were proceeding in Durgabai Deshmukh Road from East to West,

the revision Petitioner/accused drove his vehicle with a pillion rider P.W.3 Mohammed Parvez was proceeding from South to North and he drove

the two-wheeler in a rash and negligent manner and dashed against the deceased Murugesan and he sustained head injury and other injuries, and

the accident was witnessed by P. Ws.1 to 3; immediately, he was taken to Malar Hospital, where first-aid was given and subsequently, he was

admitted in Government General Hospital, Chennai, where P.W.10 Dr. Santhakumar treated him and issued Ex.P-6 accident register; he was

declared dead on the same day at 11 p.m. by P.W. 8 Dr. Gajendraraj, who issued Ex.P-4 death intimation. P.W.1, the son of the deceased, filed

Ex.P-1 complaint before P.W.11 Ramachandran, Inspector of Police, J-2 Adyar Police Station and he registered a case in Crime No.

349/AM3/05 for the offence u/s 304A IPC and he also prepared Ex.P-7 FIR. P.W.11 then went to the scene of occurrence and prepared Ex.P-2

observation mahazar in the presence of P.W.4 Krishnan and P.W.5 Ganesan and drew Ex.P-8 rough sketch. He also conducted inquest and

prepared Ex.P-9 inquest report. P.W.9 Motor Vehicle Inspector inspected the vehicle and gave Ex.P-5 report. After receipt of request from the

investigating officer, P.W.7 Dr. Periasamy conducted post-mortem and issued Ex.P-3 post-mortem certificate. P.W.11 investigating officer then

concluded the investigation and filed the charge sheet against the revision Petitioner/accused for the offence u/s 304A IPC and also u/s 184 of the

Motor Vehicles Act.

The trial Court, after following the procedures, examined P. Ws.1 to 11 and marked Exs.P-1 to P-10 and convicted the revision

Petitioner/accused for the offence u/s 304A IPC and Section 184 of the Motor Vehicles Act, and sentenced him to six months'' rigorous

imprisonment for the offence u/s 304A IPC and also imposed a fine of Rs. 3,500/-, in default, to undergo four months'' simple imprisonment, and

to pay a fine of Rs. 500/- for the offence u/s 184 of the Motor Vehicles Act, in default, to undergo two weeks'' simple imprisonment, against

which, the revision Petitioner/accused preferred appeal before the appellate Court, which after considering the arguments of both sides, confirmed

the judgment of conviction and sentence passed by the trial Court, against which, the present Crl.R.C. is filed by the revision Petitioner/accused.

Challenging the conviction and sentence passed by both the Courts below, learned Counsel appearing for the revision Petitioner/accused

submitted that the deceased himself suddenly crossed the road on the middle of the road and the road is 100 feet width, and hence, there is

contributory negligence by the deceased in the commission of the accident and therefore, learned Counsel prayed for leniency in the sentence of

imprisonment. Learned Counsel for the revision Petitioner/accused relied on the evidence of P.W.3, the pillion rider of the two-wheeler involved in

the accident. Learned Counsel further submitted that the trial Court and the first appellate Court have not considered these aspects in proper

perspective and prayed for allowing the Crl.R.C.

Repudiating the said contentions, learned Government Advocate appearing for the Respondent-Police submitted that it is true that the road is

running from South to North and as per the evidence of P. Ws.1 and 3, while they were crossing from East to West, the occurrence took place.

The revision Petitioner/accused drove the vehicle in a rash and negligent manner and caused the accident and he prayed for dismissal of the

Crl.R.C.

Considering the rival submissions made by both sides, admittedly, P. Ws.1, 2 and 3 are the eye-witnesses. P.W.3 was the pillion-rider of the

vehicle, driven by the accused, and his evidence is not trustworthy, because, he is interested with the accused, and hence, no relevance could be

placed on the evidence of P.W.3.

While perusing the evidence of P. Ws.1 and 2, their evidence in chief and cross examination, is natural, cogent, trustworthy and convincing and

hence, their evidence is reliable.

Furthermore, considering the rough sketch Ex.P-8, along with the evidence of P. Ws.1 and 2, admittedly, the accident occurred when the

deceased crossed the road while the vehicles on the road, were moving. Admittedly, at that time, he has not crossed on the pedestrian zebra

crossing, and he suddenly crossed the road. At this juncture, it is appropriate to consider the evidence of P.W.1, who in his evidence in cross-

examination, stated that,

VERNACULAR (TAMIL) PORTION DELETED

Considering the evidence of P.W.1 in his cross examination, the deceased also contributed for causing the accident.

It is now appropriate to consider the evidence of P.W.9 Chinnakannu, the Motor Vehicle Inspector, who in his evidence, stated that if a driver

of the vehicle drove the vehicle in 40 Km. speed, and if he applies speed-brake, the vehicle would station for 5 to 6 meters. He further stated that

the vehicle would have over-turned.

It is pertinent to note that in the above said accident, the revision Petitioner/accused also sustained injuries. So, at that time, the Petitioner has

driven the vehicle in a rash and negligent manner. Hence, I do not find any merits in the Crl.R.C. and the finding of the trial Court and the appellate

Court that the revision Petitioner/accused is guilty of the offences u/s 304A IPC and Section 184 of the Motor Vehicles Act, is liable to be

confirmed.

Now, this Court has to consider as to whether the Petitioner is entitled for leniency in the quantum of sentence imposed by the Courts below.

In this regard, it is worthwhile to notice a decision of this Court reported in 2011 (1) MLJ 500 (V. Kumar v. State), wherein, it was held that,

contributory negligence can be considered as a mitigating circumstance at the time of awarding sentence to an offender convicted u/s 304A of the

Indian Penal Code.

While considering the said decision of this Court, I am of the view that the revision Petitioner-accused is entitled for leniency in the quantum of

sentence. It is seen that the revision Petitioner/accused was convicted for the offence u/s 304A IPC and was imposed six months'' rigorous

imprisonment for the offence u/s 304A IPC, and the same is hereby reduced to four months'' rigorous imprisonment. The fine amount imposed in

respect of the offence u/s 304A IPC and also in respect of the offence u/s 184 of the Motor Vehicles Act, are confirmed.

For the reasons stated above:

(a) The Criminal Revision Case is partly allowed.

(b) The conviction of the revision Petitioner/accused for the offences under Sections 304A IPC and u/s 184 of the Motor Vehicles Act, is

confirmed.

(c) The sentence of imprisonment imposed for the offence u/s 304A IPC, is reduced from six months to four months'' rigorous imprisonment.

(d) The fine amount for the offences u/s 304A IPC and also u/s 184 of the Motor Vehicles Act, is confirmed.

(e) Since the revision Petitioner/accused is on bail, the trial Court is directed to take steps to secure his custody to undergo the remaining period of

sentence.