Jesudurai vs State

G. Rajasuria, J.—Animadverting upon the the judgement dated 29.12.2005 passed by the learned Additional District cum Sessions Judge

(IV Fast Track Court) in Cr.A. No. 203 of 2005 confirming the conviction and sentence imposed by the IV Metropolitan Magistrate, Saidapet, in

C.C. No. 6687 of 2003, dated 12.4.2005, this criminal revision case is focussed.

Compendiously and concisely, the case of the revision petitioner, as stood exposited from the records could be narrated thus:

On 22.2.2003, at about 11.45 p.m., the offending vehicle, viz., Qualis Car, bearing Registration No. 2626, which was driven by the accused in a

rash and negligent manner, was negotiating along Brindavan Street, West Mambalam, from West to East and dashed against a cycle, which was

ridden by Palanivelu by having his colleague Senthilkumar as pillion rider, from behind and caused fatal injury to Senthilkumar and simple injuries to

Palanivelu. The lower Court convicted the accused for the offence under Sections 304(A), 337 IPC and Section 184 of the Motor Vehicles Act,

based on the evidence of P.Ws. 1, 2, 3 and 5 and also placing reliance on the medical evidence of Doctors P.Ws.6 and 7 and other documents

and imposed the following sentences:

(i) to undergo one month rigourous imprisonment and to pay a fine of Rs. 500/- for the offence u/s 337 IPC;

(ii) to undergo rigourous imprisonment for 6 months and to pay a fine of Rs. 5000/- for the offence u/s 304(A) IPC;

(iii) to undergo one month rigourous imprisonment and to pay a fine of Rs. 250/- for the offence u/s 184 of M.V. Act.

Being aggrieved by and dis-satisfied with the conviction recorded and sentence imposed by the Court below, this revision is focussed on the

main ground that the identity of the accused as the person, who caused the accident by driving the vehicle was not established before the lower

Court, nevertheless the trial Court simply took the prosecution case for gospel truth and recorded conviction as against the accused and imposed

the sentences unjustifiably and those alleged eye witnesses were not real eye witnesses, nonetheless the lower Court simply treated them as eye

witnesses.

The point for consideration is as to whether the finding of the lower Court is perverse in allegedly treating the non-eye witnesses as eye

witnesses and giving the finding as though the identity of the accused was established. Despite opportunities given, no one represented the revision

petitioner.

The learned Additional Public Prosecutor would invite the attention of this Court to the evidence of P.Ws.1, 2, 3 and 5 and develop his

argument to the effect that copiously and cogently, convincingly and truthfully those witnesses, without any embellishment detailed and delineated

the occurrence.

The contention of the revision petitioner that the identity of the accused as the person who drove the offending vehicle has not been fortified or

buttressed by any preponderance of probabilities. I am fully aware of the fact that the accused need not prove his plea beyond reasonable doubt

the defence and at least if the accused is capable of creating a picture in the mind of the Court in favour of the defence theory based on

preponderance of probabilities then that would be sufficient for acquittal. But in this case, the very rider of the cycle, involved in the accident,

categorically deposed to the effect that he was the person who was riding the cycle by having the deceased as the pillion rider along the said road

and at that time, the offending vehicle driven by the accused came from behind in a rash and negligent manner and dashed against his cycle and

caused the fatal accident. The other witnesses P.Ws.1, 2, 3 and 5 also corroborated the evidence of P.W.1. No doubt P.W.5 while furnishing the

Registration number of the vehicle, instead of specifying as 2626 stated as 2676, which the trial Court correctly understood, as a mere error and

pointed out that it was nothing but lapse lingua on the part of P.W.5 in furnishing that offending vehicle''s registration number as 2676 instead of

2626. The defendant cannot try to make a mountain out of mole hill.

It is the duty of the criminal Court to see the reality and arrive at the conclusion, which the lower Court correctly did, warranting no interference

by this Court, while exercising its revisional jurisdiction. Unless there is perversity or non-exercise of jurisdiction or wrong exercise of jurisdiction

on the part of the trial Court, the question of invoking the revisional jurisdiction by this Court does not arise. Here in this case, even the scanning of

the evidence, which this Court is not expected to do in detail, would exemplify and demonstrate, display and convey that the lower Court correctly

recorded the finding of guilt as against the accused, warranting no interference by this Court.

However, I could see one technical error on the part of the lower Court in imposing the sentence in respect of the offence u/s 184 of Motor

Vehicles Act also. Having imposed substantive sentences of imprisonment as well as fine for the offence u/s 304A IPC relating to the death of

Senthilkumar and u/s 337 IPC relating to the injuries sustained by Palanivelu, the lower Court even though was justified in recording the finding of

guilty u/s 184 of the Motor Vehicles Act, was not justified in imposing substantive sentence as well as fine of Rs. 250/-, as it is redundant and falls

foul of Section 71 of the Indian Penal Code, as it is quite obvious and axiomatic. Hence, the substantial sentence of imprisonment and the finding

imposed u/s 184 of the Motor Vehicles Act alone is set aside and the rest of the findings, convictions and sentences, including the sentence of fine

imposed against the accused are confirmed.

In the result, the criminal revision case is partly allowed. Since the revision petitioner is not present, the lower Court is directed to issue warrant

to the revision petitioner on receipt of a copy of this order, so as to secure his presence and commit him to jail in order to undergo the sentence, if

he has not already undergone. Consequently, connected miscellaneous petition is closed. The fine of Rs. 250/- (Two hundred and fifty) relates to

the offence u/s 184 of M.V. Act, if collected already, the same shall be returned by the lower Court to the accused.