Vetrivelan vs State

K.B.K. Vasuki, J.—The revision petitioner is the accused who faced trial in CC. No. 1356 of 2003 for the offence u/s 304A IPC. The

accused suffered judgment of conviction and sentence in CC. No. 1356 of 2003 as confirmed in CA. No. 367 of 2005 by the lower appellate

Court. The case of the prosecution is that the accused at about 17.00 hrs. on 14.09.2003 was driving his water tanker lorry in rash and negligent

manner from east to west on Anna Main Road and took diversion opposite to Indian Bank, MGR Nagar branch, Chennai and proceeded in the

same speed towards west and dashed against the motor cycle coming in opposite direction resulting in head injury to the rider of the motor cycle

who later succumbed to the head injuries in Vijaya Hospital, despite treatment, on 17.09.2003 at 9.45 hours..

The prosecution in order to prove the guilt of the accused examined PW 1, PW 2 and PW 5/eyewitnesses PW 4 to PW 7/Doctors, PW 9 and

PW 10 Motor Vehicle Inspector and Police official as PW 1 to PW 12 and produced Ex. P1 to Ex. P11 documents. Both the Courts below, on

the basis of the available records having found that the water tanker lorry came at high speed in rash and negligent manner and dashed against the

deceased and the driver of the lorry was solely responsible for the accident, convicted and sentenced him for the above said offence. Aggrieved

against the same, the accused is before this Court by way of this criminal revision.

Heard the rival submissions made on both sides and perused the records.

The learned counsel for the petitioner would seriously argue that the findings of both the Courts below that the motor vehicle was driven at high

speed in rash and negligently, is not supported by any materials and the same is baseless and unfounded, as such no offence u/s 304A is attracted

and the conviction of sentence for the same is thus unsustainable, both in law and on facts. It is also submitted that no reliance can be placed upon

Ex. P8/rough sketch which only indicates mere position of the vehicle, after the accident and the same cannot be treated as substantial proof

regarding rash and negligent part of one or other. The learned counsel for the petitioner has in support of his contention also cited the following

authorities reported in Jiju Kuruvila and Others Vs. Kunjujamma Mohan and Others, and Indramani Jena Vs. State of Orissa, .

The learned counsel for the petitioner has also taken this Court to the evidence of the so called eyewitnesses PW 1, PW 2 and PW 5. While

PW 1 and PW 2 depose in favour of the prosecution case, PW 5 turned hostile. PW 5 except stating that he came to know about the accident did

not further say that he eyewitnessed the accident. As far as evidence of PW 1 and PW 2 are concerned, PW 1 stated to have followed the vehicle

driven by deceased Ravi @ Ravichandran and PW 2/Ramanathan was the pillion rider of the vehicle driven by PW 1/Sekar. It may be true that

PW 1 and PW 2 would say that the vehicle was driven at high speed on the wrong direction and they did not say that it was driven in rash and

negligent manner. The prosecution theory regarding high speed, if viewed in the light of Ex. P8 appears to be improbable.

It is not in dispute that there was digging of the road during the relevant point of time and broader southern side of east west road was

completely blocked, as such both ways vehicle used to go by northern portion of east west road. The water tanker lorry was driven from east to

west and took a turn and was proceeding towards east to west and at that time both the vehicles dashed against each other. The position of the

vehicle in the scene of occurrence, if viewed in the light of the fact that both ways vehicle were driven on the same line would improbable the

prosecution case that the water tanker lorry was driven at high speed and other probability can be completely ruled out.

Regarding the rash and negligent manner in which the vehicle was driven, the same is also not spoken by either PW 1 or PW 2. Even otherwise,

PW 1 and PW 2 would say that the vehicle was driven on the wrong direction. When only one way is available, then both ways vehicle cannot be

faulted for going in the same direction. As a matter of fact, the Hon''ble Supreme Court in para 24 of the judgment above cited on the side of the

petitioner, has observed that the rough sketch regarding the scene of occurrence cannot give substantial proof as to the rash and negligent driving.

It can only suggest or presume the manner in which the accident caused, but in the absence of any direct or corroborative evidence, no conclusion

can be drawn as to whether there was negligence on the part of the driver.

In the present case, one such material is certainly not available, as such the finding rendered by both the Courts below in this regard is baseless

and unfounded and the same cannot be allowed to sustain. As rightly argued by the learned counsel for the petitioner, both the Courts below have

committed serious error in rendering such findings without any material and the same stands vitiated and warrants interference by this Court. In the

result, the criminal revision stands allowed by setting aside the judgment dated 31.01.2007 made in C.A. No. 367 of 2005 on the file of Additional

District and Sessions Judge, Fast Track Court No. 5, Chennai and order dated 23.09.2005 in C.C. No. 1356 of 2003 on the file of XI

Metropolitan Magistrate, Saidapet.