Veerasamy Naidu v. State — 1987 DIGILAW 69 (MAD)

Judgment : The revision petitioner has been convicted by the learned Judicial First Class Magistrate, Athur in C.C.No.74 of 1983 under Secs.304-A and 279, I.P.C. and sentenced to undergo Rigorous imprisonment for a period of three months and to pay a fine of Rs.500 in default to undergo Rigorous Imprisonment for a further period of one month under Sec.304-A of I.P.C. and to pay a fine of Rs.250 in default to undergo simple imprisonment for a period of one month under Sec.279, I.P.C. on the allegation that on 26.3.1982 at about 3.30 P.M. on the Salem-Attur Main Road near Mail Stones 41/8-42 he drove the town bus TMN 6578 in a rash and negligent manner and dashed against a tamarind tree and thereby caused the death of one Jayaraman and also caused damage to the bus. Criminal Appeal No.247 of 1983 preferred by the accused was dismissed by the learned Additional Sessions Judge, Salem. Hence the revision. 2. Theprosecution case in brief is as follows: On the date of occurrence, P.Ws.1 and his wife. P.W.4 got into the A.T.C. Town Bus TMN 6578 at about 3.00 P.M. at Vaithiakavundanpudhur to go to Athur hospital as P.W.1 was unwell. The accused was driving that bus. The deceased was also travelling in that bus. When the bus was proceeding on the Salem-Athur main road near Thalavoipatti diversion road, the accused drove the vehicle in a rash and negligent manner and dashed against a tamarind tree, as a result which deceased Jayaraman was thrown out of the bus and blood was oozing from his mouth and nose. He was taken to the Government Hospital, Athur for treatment. P.W.9, Head Constable attached to Athur Police Station on receipt of information from the Government Hospital visited the hospital and found the injured in an unconscious stage. He examined and recorded Ex.P1 from P.W.1 and registered the same as Crime No.183 of 1982 and transferred the same to Ethappur Police Station as the occurrence took place within the jurisdiction of that police station. P.W.10 Sub Inspector of Police, Ethappur registered the transferred F.I.R., as Crime No.30 of 1982 and took up the investigation. On receipt of Ex.P6 death intimation, he altered the offence into one under Sec.304-A, I.P.C. and sent express reports to the superior officers. On 273.1982 at about 10.30 AM. P.W.10 Sub Inspector of Police, Ethappur registered the transferred F.I.R., as Crime No.30 of 1982 and took up the investigation. On receipt of Ex.P6 death intimation, he altered the offence into one under Sec.304-A, I.P.C. and sent express reports to the superior officers. On 273.1982 at about 10.30 AM. he visited Athur Government Hospital, held inquest over the dead body of Jayaraman and examined witnesses. Ex.P8 is the inquest report. He then sent the dead body for postmortem. 3. P.W.6, Motor Vehicles Inspector, Rasipuram inspected the vehicle on 27.3.1982 at 5.05 P.M., and found the brake in good condition. He also noticed some damages to the vehicle. Ex.2 is his report. P.W.8, Dr. Murugesan conducted autopsy on the dead body of Jayaraman from 1.40 P.M. on 27.3.1982 and found on him injuries as described in the post-mortem certificate Ex.P3. According to him, death would have been due to shock, blood oozing and head injury. P.W.10 Sub Inspector of Police, after completing investigation laid charge-sheet against the accused. The accused, when examined under Sec.313, Crl.P.C., by the trial Court, denied the offence and stated that he did not drive the vehicle rashly or negligently, that at the place of occurrence, a lorry came opposite to his bus and when he drove his vehicle to the side to give way to the lorry, branch of a tree hit the bus, that the deceased jumped out of the bus even before that and that he applied brakes only thereafter. He further stated that the deceased got into the bus in a drunken mood and was causing nuisance in the bus and that in fact he asked the conductor to drop him but some of the passengers persuaded and asked Jayaraman to sit on the last seat. He did not examine any witness on his side. The learned trial Magistrate, accepting the prosecution evidence convicted and sentenced the accused as stated at the outset. Having failed in his appeal before the Sessions Judge, Salem the accused has preferred this revision. 4. P.Ws.1 to 3 have been examined as eye witnesses. P.W.7, the Conductor of the bus, who was also examined as eye witness, has turned hostile. The learned counsel for the petitioner submitted that even the evidence of the so-called eye witnesses does not conclusively establish that the accused drove the bus rashly and negligently. 4. P.Ws.1 to 3 have been examined as eye witnesses. P.W.7, the Conductor of the bus, who was also examined as eye witness, has turned hostile. The learned counsel for the petitioner submitted that even the evidence of the so-called eye witnesses does not conclusively establish that the accused drove the bus rashly and negligently. He also pointed out that the evidence of the hostile witness P.W.7 also merits consideration. It is further pointed out that according to P.W.9, Head Constable, who visited the scene immediately after the occurrence, there was smell of arrack from the mouth of the deceased. Admittedly, even according to the prosecution, there was a vehicle coming in the opposite direction and in order to avert the collision, the accused swerved his vehicle to the left. In the absence of any positive evidence it cannot be concluded that the accused drove the vehicle rashly and negligently and that has resulted in the accident. The possibility of the deceased jumping out of the bus will not be ruled out since he was under the influence of alcohol. Further, there is no evidence in this case that the death was the direct result of the accident. The accident took place at about 3.30 P.M., and the injured died at 12.00 midnight. The doctor who admitted the injured into the hospital and who treated him first has not been examined. Further, P.W.8 the doctor who conducted post-mortem examination, has simply marked the post-mortem certificate and stated that he found injuries on the deceased as described in that certificate without detailing those injuries in his evidence. The post-mortem certificate is not substantive piece of evidence. The learned counsel for the petitioner relied on certain decisions for that purpose. 5. Admittedly, the evidence of the prosecution is that the deceased had consumed alcohol. The bus involved in the accident is also a town bus where standing passengers are allowed. Subsequently, the deceased alone is said to have been thrown out of the bus as a result of the accident. But also has not sustained serious damage. It is also in evidence that a vehicle came in the opposite direction. But for the accused swerving his bus to the left, there could have been a collision with the vehicle coming in the opposite direction. But also has not sustained serious damage. It is also in evidence that a vehicle came in the opposite direction. But for the accused swerving his bus to the left, there could have been a collision with the vehicle coming in the opposite direction. The learned trial Magistrate seems to have taken the view that in the absence of evidence that the vehicle coming in the opposite direction was coming at a great speed and therefore, the accused was forced to swerve his bus to the left, it has to be held that the accused drove the bus rashly and negligently. Once it is found that there was a vehicle coming in the opposite direction, it is for the prosecution to prove that notwithstanding the fact that a vehicle was coming in the opposite direction, the accused drove the bus rashly and negligently. In the absence of such evidence, the benefit must go to the accused and it has to be held that in order to avoid collision with the vehicle coming in the opposite direction, the accused swerved his bus to the left. In fact, the learned Sessions Judge has accepted the contention that in order to avoid collision, the accused swerved the vehicle to the left. Having accepted the same, the logical collusion should be, in the absence of evidence by the prosecution as to how the vehicle in the opposite direction came, that the accused swerved the vehicle only to avoid collision and it is purely and accident and that the bus while swerving hit on the tamarind tree. Further the possibility of the injured jumping out of the bus, since he is in an unbalanced state of mind, cannot be ruled out. 6. In the decision reported in Nataraj, In re., (1966)1 M.L.J. 328: 1966 M.L.J. (Crl.) 279: A.I.R. 1966 Mad. 357: 1966 Crl.L.J. 1147, it has been pointed out that merely because the prosecution proves that the car left the road or met with the accident, there can be no presumption of rash and negligent driving requiring accused to prove that he was not driving the vehicle in a rash and negligent manner. 357: 1966 Crl.L.J. 1147, it has been pointed out that merely because the prosecution proves that the car left the road or met with the accident, there can be no presumption of rash and negligent driving requiring accused to prove that he was not driving the vehicle in a rash and negligent manner. In the instant case also, from the mere fact that there was a vehicle coming in the opposite direction and the accused swerved the vehicle to the left and the deceased was thrown out of the bus, it cannot be held that there is positive evidence that the accused drove the vehicle rashly and negligently. It will only prove that there is accident. The burden is still on the prosecution to prove that even though a vehicle was coming in the opposite direction, the accused drove the vehicle rashly and negligently. The prosecution has failed to discharge this burden. Therefore, the accused must be given the benefit. 7. As already stated, the post-mortem doctor (P.W.8) has not described the injuries found on the deceased in his evidence and he simply stated that he noticed injuries as described in the post-mortem certificate. The post-mortem certificate is not substantive piece of evidence as held by the Orissa High Court in Hadi Kirsani v. State, A.I.R. 1966 Orissa 21. The Orissa High Court relied on the decision of our High Court in Rangappa Goundan, In re., A.I.R. 1956 Mad. 426: I.L.R. 59 Mad. 349, where it has been held that a post-mortem report is not evidence and can only be used by the witness who conducted the post-mortem enquiry as an aid to memory. In the instant case, P.W.8 the doctor has not spoken to the injuries noted by him at the time of post-mortem examination. In the decision reported in Kurban Hussain Mohanedalli Rangawalla v. State of Maharashtra, A.I.R. 1965 S.C. 1616, it has been held that the prosecution must prove that the death was the direct result of the rash or negligent act of the accused and the act must be efficient. In this case, the post-mortem doctor (P.W.8) has not described the injuries in his evidence but has simply stated that he found injuries on the deceased as described in the postmortem certificate, which is not substantive piece of evidence. In this case, the post-mortem doctor (P.W.8) has not described the injuries in his evidence but has simply stated that he found injuries on the deceased as described in the postmortem certificate, which is not substantive piece of evidence. In the light of the evidence let in by the prosecution, it cannot be conclusively held that the death was the direct result of the rash or negligent act of the accused. Therefore, the accused is entitled to the benefit of doubt. 8. In the result, the revision petition is allowed, the conviction and sentence are set aside and the revision petitioner/accused is acquitted. The fine amount if paid, will be refunded to the revision petitioner/accused.