V. Manju vs State

K.B.K. Vasuki, J.—The Petitioner herein is the accused who is convicted for the offence under Sections 279, 337, 338 and 304(A) Indian

Penal Code, 1860 by the trial court in CC. No. 78 of 2006 on the file of District Munsif-cum-Judicial Magistrate, Palacode as confirmed in C.A.

No. 21 of 2008 on the file of Principal Sessions Judge, Dharmapuri.

The case of the prosecution is that the Petitioner drove his Tempo-407 van on Royakottai to Palacode main road rashly and negligently and

without blowing horn dashed against TVS-50 driven by one Chinnavan on 13.07.2005 at 8.00pm near Veerasanur kandabail branch road, and

caused fatal accident in the course of which the rider of the two wheeler and one of the pillion riders sustained injury and the other pillion rider

sustained serious injuries resulting in his death. Thereby the accused committed the acts constituting the offences punishable u/s 279, 337, 338 and

304(A) Indian Penal Code, 1860.

The prosecution has in order to bring home the guilt of the accused for the offences as above mentioned examined the pillion rider and rider of

TVS-50 who are father and son, other son of PW1 eye witnesses, postmortem report, doctor who examined and treated the injured persons, the

police personnel who received the complaint and held the investigation and Motor Vehicle Inspector as PW1 to PW14 and also produced the

Ex.P1 to P10 documents.

The trial court has on the basis of the available records found the accused guilty of the offences u/s 279, 337 (2 counts), 338 and 304(A) Indian

Penal Code, 1860 and convicted and sentenced him to undergo imprisonment and to pay fine. Aggrieved against the same the accused preferred

C.A. No. 21 of 2008 before the Principal Sessions Judge, Dharmapuri and the appellate court confirmed the judgment of conviction and sentence

passed by the trial court. Hence, the criminal revision before this Court by the accused.

Heard the rival submissions made on both sides.

The learned Counsel for the Petitioner, has before this Court high lighted three material aspects which are according to him grossly omitted to be

considered by the courts below they are:

1 The prosecution has not come forward with the definite case as to direction in which both the vehicles were driven, so as to ascertain whether it

is van driver or TVS-50 rider who is responsible for the accident.

2 The condition of the road in the place of occurrence as spoken by the prosecution witnesses.

3 The act of PW2 rider of the motor cycle in carrying two pillion riders PW1 and the deceased in the TVS-50 which does not rule out the

possibility of the two wheeler rider loosing balance and falling down resulting in the accident, leading to death of one of the pillion riders of TVS-

50.

Out of 14 witnesses examined on the side of the prosecution, PW1 and PW2 who are the injured in the accident alone deposed about the

factum and the manner of the accident and other witnesses either reached the scene of occurrence or met the injured in the hospital much after the

occurrence.

As rightly argued by the learned Counsel for the Petitioner neither PW1 nor PW2 or I.O. who held the investigation and the author of the

material documents such as observation magazher, rough sketch relating to the scene of occurrence do not come out with definite case as to the

direction in which both the vehicles were moving at the time of occurrence. Though, PW1 and PW2 did say the van was coming on Rajakottai to

Palacode main road from north towards south as shown in Ex.P.10 rough sketch none of the witnesses did speak about the direction in which

TVS-50 was going.

The perusal of Ex.P9 shows that accident occurred on the western side of north south road. In that event TVS-50 ought to have come on the

wrong side and caused the accident. It is No. body''s case that the van was driven on the wrong side and dashed against the smaller vehicle such

failure on the part of the material witnesses to depose about the direction in which both the vehicles were driven at the time of the accident,

assumes in my opinion greater significance which would compel the prosecution theory regarding the manner of the accident highly doubtful.

Further almost all the prosecution side witnesses have categorically admitted in the witness box that the road was not even in the scene of

occurrence and the road was full of pit and falls and curve at the accident spot whereas neither Ex.P2 or Ex.P10 rough sketch prepared by

PW14/IO would reflect the actual physical feature available on land to ascertain the manner of the scene of accident.

Further it is also not in dispute that three persons were carried in smaller vehicle TVS-50 which is against law. As rightly pointed out by the

learned Counsel for the Petitioner considering the condition of the road in the scene of occurrence there is every possibility of TVS-50 loosing its

balance resulting in the accident without any rashness and negligence on the part of the Tempo van driver.

The learned Counsel for the Petitioner would by relying upon the judgments of our High Court reported in 2009 (1) CLT 542 in Velmurugan

v. State of Tamil Nadu contend that possibility of accident due to any fault of the rider of TVS-50 cannot be ruled out. If it is so, it is but difficult to

hold that accident must be direct or proximate result of rash and negligent act of accused. Our Apex Court has in the case reported in 1980 SCC

69 in Syed Akbar v. State of Karnataka cast the entire burden of proving everything essential to the establishment of charge against the accused on

the prosecution as every man is presumed to be innocent until the contrary is proved. It is observed that where negligence is an essential ingredient

of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of

judgment and the ruling of the Apex Court is followed in the judgment of our High Court reported in 1989 (9) L.W. Crl. 419 in Muthu v. State

rep. by Inspector of Police Traffic Investigation Adyar Madras.

Had the three aspects discussed above been properly viewed in the light of absence of further proof of either rash or negligence on the part of

the van driver the same would have led to reasonable doubt in the mind of the courts below about the genuineness of the prosecution case and

such benefit of doubt would have been extended to the accused resulting in his acquittal. Such glaring error committed by the courts below renders

the findings of the same erroneous and perverse.

In the result, the criminal revision stands allowed by setting aside the judgment and conviction of the accused in CC. No. 78 of 2006 on the file

of District Munsif-cum-Judicial Magistrate, Palacode as confirmed in judgment of conviction and sentence made in C.A. No. 21 of 2008 on the

file of Principal Sessions Judge, Dharmapuri and the accused is acquitted for the offences u/s 279, 377, 338 and 304-A Indian Penal Code, 1860.

The fine amount if any paid by the accused shall be refunded to the accused. The bail bond if any executed by the accused shall stand cancelled.