K. Viswanathan vs The State

A.C. Arumugaperumal Adityan, J.—This revision has been preferred against the judgment in C.A. No. 368/2003 on the file of the

Additional District and Sessions Judge (FTC. No. I), Coimbatore, which had arisen against the judgement in C.C. No. 47 of 2002 on the file the

Judicial Magistrate No. VIII, Coimbatore. The accused has been charged u/s 279, 337, 338 and 304 IPC and also u/s 134(a)(b) of Motor

Vehicles Act r/w 187 IPC.

The learned trial Judge, after taking cognizance of the offence, on appearance of the accused on summons, issued copies u/s 207 of Cr.P.C.,

and when the charges were explained to him and questioned, he pleaded not guilty. On the side of the prosecution, P.W.1 to P.W.14 were

examined and Ex.P.1 to Ex.P.9 were marked.

P.W.1 is the complainant. According to him, the occurrence had taken place on 16.2.2002 at about 6.00 pm while he was proceeding in his

motor cycle on the Coimbatore - Sathyamangalam road he saw his brother-in-law Muthukumar near Barathi nagar bus stop and he stopped his

motor cycle and had conversation with this brother-in-law, at that time, his father-in-law deceased came in a by-cycle from west to east and at that

time the accused was driving the ill-fated bus rashly and negligently and dashed against the by-cycle in which his father-in-law was riding and the

right side front wheel of the bus ran over the by-cycle causing grievous injuries on the right side of the head and right hand and right elbow causing

instantaneous death and that the bus had also hit on the scooter in which Ubayathulla and his son were travelling and both Ubayathulla and his son

sustained injuries and that Ex.P.1-complaint was preferred by him. The accused was driving the private bus bearing registration No. TN.40-A

7997.

P.W.2 knows both the accused as well as P.W.1. According to him, when he was talking with P.W.1 on 16.2.2002 at about 6.00 pm near the

place of occurrence, the accused had driven the private bus bearing registration No. TN-40-A 7997 rashly and negligently and dashed against the

by-cycle in which his father was riding resulting his instantaneous death and that the bus has also hit on the scooter which was proceeding in the

opposite direction causing injuries on the rider of the scooter as well as the pillion rider and that the injured were removed to the hospital.

P.W.3 is the Motor Vehicle Inspector, who had inspected the ill-fated bus and issued Ex.P.2-certificate stating that the accident had not

occurred due to any mechanical defect of the bus.

P.W.4 is also an eye witness, who would corroborate the evidence of P.W.1 & P.W.2 to the effect that the accident had occurred only due to

the rash and negligent driving of the driver of the bus.

P.W.5 has also corroborated the evidence of P.W.1, P.W.2 and P.W.4.

P.W.6 is a scooterist, who was also hit by the ill-fated bus at the time of the accident. He has also corroborated the evidence of P.W.1, P.W.2,

P.W.4 & P.W.5.

P.W.7 is the son of P.W.6, a minor and a pillion rider of the scooter, which involved in the accident.

P.W.12 is the Sub-Inspector of Police, who had registered the case under Cr. No. 90 of 2002 u/s 279, 337, 304(A) IPC. Ex.P.7 is the copy

of the FIR.

P.W.14 is the Investigating Officer, who on the basis of Ex.P.1-complaint had visited to the place of occurrence and prepared observation

mahazar-Ex.P.3 in the presence of P.W.18. He had also drawn the rough sketch-Ex.P.8. He has conducted inquest on the corpse of the deceased

and Ex.P.9 is the inquest report. He has examined the witnesses and recorded their statements. P.w.14 has sent the corpse of the deceased for

post-mortem through post-mortem constable P.W.13.

P.W.11 is the doctor, who had conducted autopsy on the corpse of the deceased and issued Ex.P.6-post mortem report. The doctor has

opined that due to the injuries on the skull and due to hemorrhage the deceased would have died.

After completing the formalities P.W.12 has filed the charge sheet against the accused on 16.4.2002 u/s 279, 337, 338 and 304(A) IPC and

u/s 134(a)(b) of the Motor Vehicles Act r/w 187 IPC.

When incriminating circumstances were put to the accused u/s 313 of Cr.P.C., the accused denied his complicity with the crime. After going

through the oral and documentary evidence, the learned trial Judge has find the accused guilty u/s 279, 337, 338 & 304(A) IPC and 134(a)(b) of

Motor Vehicles Act r/w 187 IPC and sentenced the accused u/s 279 IPC to undergo 6 moths RI and a fine of Rs. 1,000/- with default sentence,

and sentenced the accused u/s 337 IPC to undergo 6 months RI and a fine of Rs. 500/- with default sentence and sentenced the accused u/s 338

IPC to undergo 6 months RI and a fine of Rs. 1000/- with default sentence and sentenced the accused u/s 304(A) IPC to undergo one year RI

and a fine of Rs. 5,000/- with default sentence and sentenced the accused u/s 134(a)(b) of the Motor Vehicles Act r/w 187 IPC to pay a fine of

Rs. 500/- with default sentence.

Aggrieved by the findings of the learned trial Judge, the accused has preferred an appeal before the Additional District and Sessions Judge,

FTC. No. I, in C.A. No. 368 of 2003. The learned first appellate Judge after going through the evidence both oral and documentary and also after

hearing both side, had concurred with the trial Court in convicting the accused u/s 279, 337, 338 & 304(A) IPC and confirmed the conviction u/s

279, 337, 338 & 304(A) IPC, but modified the sentence to three months RI instead of one year RI u/s 304(A) IPC, which necessitated the

accused to prefer this revision.

Now the point for determination in this revision is whether the conviction and sentence imposed on the accused is liable to be set aside for the

reasons stated in the memorandum of revision?

The Point:- The eye witnesses in this case are P.W.1, P.W.2, P.W.4 to P.W.7. Out of them P.W.6 & P.W.7 are the injured eye witnesses.

The learned Counsel appearing for the revision petitioner relying on the evidence of P.W.2 and P.W.4 and the evidence of P.W.1 in cross-

examination, would contend that the occurrence had not taken place as alleged by the prosecution and the place of occurrence itself has wrongly

been stated by the prosecution witness. But P.W.1 even though in the cross-examination would depose that the road on which the accident had

occurred is a the north-south road. But in the chief-examination P.W.1 has clearly stated that his father-in-law was riding on the by-cycle from

west to east and the ill-fated bus was driven by the accused from east to west. Even in the cross-examination P.W.1 has clearly stated that the

injured P.W.6 had also came in a scooter from west to east and the cyclist was also proceeding on his cycle from west to east. Even if any

confusion in the direction of the road as per the evidence of P.Ws.2, 4 & 6, the evidence of the Investigating Officer-P.W.14, it is clear that the

road on which the accident had taken place is running from east to west Sathyamangalam to Coimbatore. Ex.P.8 is the rough sketch prepared by

P.W.4, which contains the correct location of the place of occurrence. There is absolutely no contra evidence let in by the accused to show that

Ex.P.8-rough sketch is incorrect and not showing the correct directions of the place of occurrence on lie. A perusal of Ex.P.8-rough sketch will go

to show that the ill-fated bus was proceeding from east to west i.e., from Sathyamangalam to Coimbatore and the scooter in which P.Ws.6 & 7

were going towards Sathyamangalam, in the opposite direction of the ill-fated bus, which was driven by the accused. The scooter is also shown on

the extreme right side of the road. But the cycle in which the deceased was riding was shown below the front left wheel of the ill-fated bus. So

from Ex.P.8 it is clear that since the cycle had taken a swerve to his right, the front left side wheel of the bus hit and ran over the cyclist. The

injured witnesses P.Ws.6 & 7 speak to the fact that at the time of accident the accused was driving the bus very rashly and negligently. But the fact

that the accident had occurred due to the contributory negligence of the cyclist cannot also be ruled out because Ex.P.8 shows the contributed

negligence of the cyclist. Admittedly the accident had occurred in a national high way. But there is no explanation forthcoming on the side of the

accused for hitting the scooter on which P.Ws.6 & 7 were proceeding from Coimbatore to Sathyamangalam to their extreme left side of the road.

Hence, I am of the opinion that the accident had occurred not only due to the rash and negligent act of the accused but also due the contributory

negligence of the cyclist and to meet the ends of justice the sentence alone can be modified to that of the period already undergone instead of one

month and three months RI. Point is answered accordingly.

In the result, the revision is dismissed confirming the conviction passed by the First appellate Court in C.A. No. 368 of 2003 on the file of the

Additional District and Sessions Judge, FTC-I, Coimbatore, but the sentence alone is modified as here under. The sentence imposed on the

accused by the first appellate Court u/s 279, 337, 338 & 304(A) IPC is modified to that of the period already undergone instead of one month

and three months RI respectively. In other respects the findings of the first appellate Court will sustain.