Judgment 1. Mathiazhagan, the petitioner herein, was convicted and sentenced for one year rigorous imprisonment for the offence under Sec.304-A of Indian Penal Code in C.C.No.617 of 1991 on the file of the learned District Munsif-cum-Judicial Magistrate, Neyveli and confirmed in C.A.No.41 of 1995 on the file of Principal Sessions Judge, South Arcot Vallalar District, Cuddalore. Challenging the conviction and sentence in both these judgments, the petitioner is before this Court by filing this revision. 2. The facts in the case are as follows: P.W.1 Ilangovan, and P.W.2 Munusamy are hailing from a village called Ponnalagaram. The deceased Annathurai also belonged to the same village. On 26.6.1991 at about 7.00 a.m. P.W.I Ilangovan was proceeding in his cycle in order to go to a village called Arasakuzhi. At that time, P.W.2 Munusamy was going along the road in order to go to his field. The deceased was at that point of time proceeding from west to east in his cycle. He was driving his cycle on the left side of the road i.e., on northern side. 3. The petitioner is the driver working in Thanthai Periyar Transport Corporation. At that time, he was driving a vehicle TCP.6248 coming from west to east. The deceased was going on his left side i.e., at the corner of the tarroad towards eastern side. The bus came with a great speed. Suddenly the bus, which was driven by the petitioner, hit against the deceased cyclist from behind. Due to the impact, he was thrown open to a particular distance on the left side. The petitioner after crossing considerable distance stopped the bus, got down from the same and then came near the victim, deceased. Within a short while, the petitioner again got into the bus, started the vehicle and left. P.Ws.l and 2, who were the eye-witnesses, immediately, attended on the victim. A lorry, which was coming on the road side, was stopped and the victim was taken to the Virudhachalam Hospital, where he was admitted. P.W.1 went to the police station and gave a complaint to P.W.7, Sub-Inspector of Police. On 26.6.1991, at about 8.30 a.m. on receipt of the said complaint from P.W.1, P.W.7 registered a case in Crime No.94 of 1991 for the offences under Secs.279 and 338 of Indian Penal Code. He went to the spot and prepared Ex.P-6 sketch and observation mahazar Ex.P-3. On 26.6.1991, at about 8.30 a.m. on receipt of the said complaint from P.W.1, P.W.7 registered a case in Crime No.94 of 1991 for the offences under Secs.279 and 338 of Indian Penal Code. He went to the spot and prepared Ex.P-6 sketch and observation mahazar Ex.P-3. The cycle M.O.1 found on the left side of the road was also recovered under Ex.P-4. 4. In the meantime, the victim admitted in the Virudhachalam Hospital, was given treatment, since his condition was serious, he was referred to Cuddalore General Hospital. However, on the way at Kurinchipadi, the deceased Annathurai died. 5. P.W.5 Dr.Tamilarasi conducted post-mortem and issued post-mortem certificate Ex.P-2. She was of the opinion that the deceased died due to the injury sustained. Meanwhile, on receipt of the death intimation, the case was altered into Sec.304-A of Indian Penal Code. The Inspector of Police took further investigation and examined all other witnesses and filed a charge sheet. 6. During the course of trial, the prosecution examined P.Ws.1 to 7 and marked Exs.P-1 to P-8 to establish its case. After trial, when the accused was questioned under Sec.313 of Code of Criminal Procedure, the accused denied the offence. 7. On consideration of the materials, the trial court convicted the petitioner for the offence under Sec.304-A of Indian Penal Code and sentenced him to rigorous imprisonment for one year. Aggrieved over the judgment of the trial court, the petitioner filed an appeal before the appellate court, which, in turn, confirmed the conviction. Hence, this revision. 8. Mr.G.R.Edmund, learned counsel appearing for the petitioner, took pains in reading out the relevant portions of the impugned judgments and argued at length by pointing out various discrepancies in the prosecution case. He would vehemently contend that as there are large number of loop-holes in the case of prosecution, the petitioner is entitled to be given the benefit of doubt and that he ought to have been acquitted by the courts below. His submission could be summarised as follows: “P.Ws.1 and 2 could not have been the eyewitnesses. The observation mahazar was prepared in this case by P.W.7 not in the presence of P.Ws.1 and 2. Even according to the prosecution, P. W. 1 went to the police station to give a complaint and P.W.2 went and accompanied the victim to the hospital. The observation mahazar was prepared in this case by P.W.7 not in the presence of P.Ws.1 and 2. Even according to the prosecution, P. W. 1 went to the police station to give a complaint and P.W.2 went and accompanied the victim to the hospital. Therefore in the absence of eyewitnesses, P.W.1 and P.W.2, P.W.7 the Sub Inspector of Police, could not have correctly prepared the observation mahazar Ex.P-3 and sketch Ex.P-6. Therefore the evidence relating to the occurrence as adduced by P.Ws.l and 2 has to be discarded. There is also no material to show that Exs.P-3 and P-6 were prepared in the presence of any other witness. Therefore Exs.P-3 and P-6 also should be rejected. There is no evidence in this case to show that the accident was not due to the mechanical defect. It is for the prosecution to prove through the Motor Vehicle Inspector that the brake system in the vehicle was in order and there was no mechanical defect. Though Ex.P-8, the Motor Vehicle Inspectors report, has been marked, this document is not admissible since the author of the document, viz., the Motor Vehicles Inspector, was not examined. Therefore, virtually there is no material whatsoever to connect the petitioner with the commission of crime.” 9. Arguing contra, the learned Government Advocate would submit that the evidence of P.Ws. 1 and 2 is reliable and their evidence is corroborated by Ex.P-3, the observation mahazar and Ex.P-6, the sketch and that non-examination of Motor Vehicle Inspector would not affect that the case of the prosecution inasmuch as Ex.P-8 has been filed through P.W.7 the Investigating Officer. In short, the request of the learned Government Advocate is that the impugned judgments have got to be confirmed. 10. I have given my anxious thought to the submissions made on either side. As correctly pointed out by Mr.G.R.Edmund, the learned counsel for the petitioner, the non-examination of Motor Vehicle Inspector has caused serious impact in this case. As rightly pointed out, it is for the prosecution to show that the vehicle was in order and there was no mechanical defect and despite that the accident took place resulting in the death of the deceased due to the rash and negligent driving of the petitioner. According to him once. Ex.P-8, the Motor Vehicle Inspectors report, cannot be given due credence, then the prosecution fails. According to him once. Ex.P-8, the Motor Vehicle Inspectors report, cannot be given due credence, then the prosecution fails. Though at the first blush, these submissions look attractive, I am of the view that other materials available in the case on the record would make it clear that the prosecution has established its case. In this context, I must refer the judgment of this Court in Chinnaian v. State by Inspector of Police (Rural) Vellore, N.A.A. District Chinnaian v. State by Inspector of Police (Rural) Vellore, N.A.A. District , (1995)2 L.W. (Crl.) 493. In that case, it was held that the report of the Motor Vehicle Inspector, which was not filed through him, cannot be admitted in evidence. The view expressed in this judgment, in my opinion, is correct. However, it must be pointed out that the view was only in the light of the facts and circumstances of that case. In the said case, the driver hit against the cyclists and after impact, the bus ran amuck towards the northern side, deviating from the main road. It is also to be noticed in the said case that the driver of the bus had lost control of the bus and ran down from the road about 30’ northern side of the road. In the light of the said facts, it was found that the driver has lost his control while driving the vehicle. In the said case, the defence taken by the accused is that there was a failure of the brake. So in the light of that defence, non-examination of Motor Vehicle Inspector had assumed significance. 11. But in the instant case, according to the prosecution, the petitioner, after dashing the cyclist, and the cyclist was thrown to a particular distance at the left side, stopped the vehicle, got down from the same and saw the victim with injuries. After some time, without even taking effort to take him to hospital, though he was alive then, he got into the bus and went straight to the police station. This factor would make it clear that there could not have been any brake failure or mechanical failure. As a matter of fact, P.W.1 would admit in the cross examination that he went and gave a complaint to the police at the police station. This factor would make it clear that there could not have been any brake failure or mechanical failure. As a matter of fact, P.W.1 would admit in the cross examination that he went and gave a complaint to the police at the police station. He saw the bus was standing in the police station compound and the accused was inside the police station. Furthermore, it is not the case of the defence that there was a brake failure. Therefore, though the non-examination of Motor Vehicle Inspector would in a way affect the prosecution and that Ex.P-8 Motor Vehicle Inspectors report cannot be relied upon as it is not admissible in evidence, the evidence of P.Ws. 1 and 2, in my view, would certainly support the case of the prosecution, in the light of Exs.P-3and P-6. 12. Mr.Edmund, the learned counsel appearing for the petitioner, cited various authorities such as Nageshwar Shri Ghobe v. State of Maharashtra Nageshwar Shri Ghobe v. State of Maharashtra, 1973 S.C.C. (Crl.) 664, Thana Ram, son of Sukhu Ram and Kothandan, INRE. Kothandan, IN RE., 1972 L.W. (Crl.) 52, to show that merely because the accident happened which resulted in the death to the deceased, it cannot be taken for granted that the driver of the vehicle involved in the accident is guilty of crime. According to the learned counsel, speed alone is not the criterion for deciding rashness or negligence on the part of the driver. The relationship between speed and rashness or negligence depends upon the place and time. In a straight wide road, where obstructions from other vehicles or pedestrians are not there, it cannot be said that driving in speed or absence of sounding horn, by itself, will amount to rashness or negligence. These principles and guidelines given in these judgments are perfectly correct and in those cases, the accused have been acquitted considering the credibility of the case of the prosecution. In all these cases the witnesses have been disbelieved and therefore, for want of evidence, the accused were acquitted. But in my view, these decisions would not apply to the instant case as there are materials in this case to show that the accident took place only due to the rash and negligent driving of the petitioner. In all these cases the witnesses have been disbelieved and therefore, for want of evidence, the accused were acquitted. But in my view, these decisions would not apply to the instant case as there are materials in this case to show that the accident took place only due to the rash and negligent driving of the petitioner. Moreover on the rule ‘res ipso loquitur’ even assuming that there is no direct evidence, it is settled law, when the facts available in the sketch would speak for themselves, and in such circumstances, the court will be justified in coming to the conclusion that the petitioner had driven the vehicle in a rash and negligent manner causing the death of the deceased. So applying the rule ‘res ipso loquitur. If we look at Ex.P-6, it is clear that the petitioner had hit the cyclist when there are sufficient space available to avert the accident. According to the sketch marked through P.W.7 the Inspector of Police, the width of the road is 22’. The place of impact is situated 5’ away from the left side of the road. So the remaining place of about 17 is available. Admittedly the occurrence had taken place in the early morning at about 7.30 a.m. The cycle which has been recovered here would show that the rear wheel of the cycle got damaged. The sketch also would show that there is a road which divides the main road going towards the northern side. The distance between the place of impact and the road, which cuts the main road going towards the northern side is about 50’ Therefore the petitioner must have taken cautious approach while driving the bus in a main road by watching the movements of the persons on either side. This aspect is not only available in Ex.P-3 and Ex.P-6 but also in the evidence of P.Ws.1 and 2, which would go to show that the accident had taken place in the manner-alleged by the prosecution. 13. Much was said about the preparation of Exs.P-3 and P-6 in the absence of P.Ws. 1 and 2. It is true that there is no evidence to show that P.Ws.1 and 2 were available at the time of the preparation of these documents. But the evidence of P.W.7 would make it obvious that the same was prepared in the presence of other witnesses. 1 and 2. It is true that there is no evidence to show that P.Ws.1 and 2 were available at the time of the preparation of these documents. But the evidence of P.W.7 would make it obvious that the same was prepared in the presence of other witnesses. Nothing has been elicited in the cross examination of P.W.7 that it was not prepared in the presence of eye witnesses. Therefore, when these materials have been considered and appreciated in the proper perspective by both the courts below, there is no reason or justification to interfere with the factual findings arrived at by both the courts below, that too in the revision, the scope of which is so limited. 14. However, Mr.G.R.Edmund, learned counsel for the petitioner, would request this Court to consider the question of sentence. Though it was objected by the learned Government Advocate stating that the conduct of the petitioner would show that he does not deserve sympathy on the reason that he did not take any effort to take the victim to the hospital, the said submission cannot be accepted in view of the practical approach that we have to adopt as rightly pointed out by Mr.Edmund, learned counsel for the petitioner, that the petitioner would have got actually fear for the danger at the hands of the villagers. In my view, the petitioner deserves sympathy for the reason that after the accident, the petitioner straightaway went to the police station. 15. Therefore I am of the view, the sentence of imprisonment of one year could be reduced to three months rigorous imprisonment. 16. At this stage, Mr.Edmund, learned counsel for the petitioner, brought to my notice that the petitioner is entitled to remission for the said period of three months by virtue of Government Order G.O.Ms.No.1342, dated 12.9.1996. The learned Government Advocate has now fairly conceded that this Government Order would be applicable to the petitioner. 17. In the light of the submissions made by the counsel for the petitioner and in the light of the admission made by the Government Advocate, I am of the view that the petitioner is entitled for the remission of the said three months and that therefore the petitioner need not surrender to the judicial custody at this stage as the said period has already been covered by the Government Order referred above. 18. 18. With the above observation, the revision is disposed of.