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2015 DIGILAW 2209 (MAD)

Govindarajalu v. State

2015-06-10

B.RAJENDRAN

body2015
Order B. Rajendran, J. 1. The petitioner, who was arrayed as accused in C.C. No. 128 of 2004 on the file of the learned Judicial Magistrate No. 2, Cuddalore, was tried for the offence punishable under Section 304-A of IPC. After trial, the trial court convicted the petitioner for the offence under Section 304-A of IPC and sentenced to undergo six months simple imprisonment with fine of Rs. 5,000/-, in default, to undergo two months simple imprisonment. Aggrieved by the judgment of the trial court, the petitioner filed an appeal before the appellate Court. The appellate Court, confirmed the conviction and sentence ordered by the trial court. As against the same, the present Criminal Revision Case is filed. The facts of the case, as could be unfolded from the records, is that on 28.12.2003 at about 8.05 pm, PW 9 stopped his bus bearing Registration No. TN 32 N - 1397 in the bus stand for the passengers to alight from the bus. At that time, the petitioner/accused who was coming in his Auto in a rash and negligent manner in the opposite direction, carrying the deceased Gokulakrishnan and four others, tried to overtake the tricycle going before it and thereby hit the bus, standing in the bus stand. Due to which, the said deceased sustained injuries in his head and was admitted to the Cuddalore Government Hospital and thereafter was shifted to the General Hospital, Chennai where he succumbed to the injuries on 31.12.2013. In this context, a complaint was given by PW 9 - Driver of the Tamil Nadu State Transport Corporation bus, to the respondent police based on which the case in Crime No. 1225 of 2003 came to be registered for the offences punishable under Sections 279 and 337 IPC. Based on the registration of the case, PW 12, Inspector of Police commenced investigation and recorded the statement of the witnesses. During the course of investigation, on 31.12.2003, inspite of treatment, the deceased Gokulakrishnan died in the hospital. Therefore, the FIR in Crime No. 1225 of 2003 was altered into one under Section 304-A of IPC. 2. Based on the registration of the case, PW 12, Inspector of Police commenced investigation and recorded the statement of the witnesses. During the course of investigation, on 31.12.2003, inspite of treatment, the deceased Gokulakrishnan died in the hospital. Therefore, the FIR in Crime No. 1225 of 2003 was altered into one under Section 304-A of IPC. 2. Learned counsel for the petitioner would submit that once there is no direct evidence to prove that the petitioner had hit the bus and thereby caused the accident, the courts below ought to have given the benefit of doubt in favour of the revision petitioner, instead of convicting him for the offence under Section 304-A of IPC. Even according to PW 1, who was projected by the prosecution as an eye witness, he has admitted in the cross-examination that he did not see the petitioner in the accident spot and he went to the accident spot only after the incident. Therefore, PW 1 is an hearsay witness. Similarly, PW 2 also admitted that he has not seen the auto driver. Even PW 2 in his cross-examination had stated that he did not see the accident and when he went there, the place was crowded. Thus, PW 2 also is not an eye-witness. Therefore, the evidence of P.Ws. 1 and 2 are not trustworthy, believable. Moreover, only to safe-guard the Tamil Nadu State Transport Corporation driver, the whole case has been foisted. Further, he would submit that the damage was caused only to the Auto and not to the Transport Corporation bus. Hence, he would submit that the courts below ought not to have convicted the petitioner. 3. On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent would contend that P.Ws. 1 and 2 are the eye witnesses in this case and they have categorically stated that the bus was standing in the bus stand and it was the auto, which was coming in the opposite direction in a rash and negligent manner dashed against the bus while trying to overtake the tricycle, resulting in the death of the person, who was travelling in the Auto. The courts below analysed the evidence available on record and came to a correct conclusion. Therefore, the order passed by the courts below need not be interfered with. 4. Heard both sides. 5. The courts below analysed the evidence available on record and came to a correct conclusion. Therefore, the order passed by the courts below need not be interfered with. 4. Heard both sides. 5. The main ground of attack raised by the counsel for the petitioner is that the prosecution witnesses, viz., P.Ws. 1 and 2 are not eyewitnesses to the incident as deposed by them in their chief examination and that they came to the scene of occurrence only after the accident took place. When we read the evidence of PW 1 he would only say this in his cross-examination: “XXX XXX XXX” Similarly, PW 2 in his cross examination would state thus: “XXX XXX XXX” Therefore, both the eye witnesses to the incident have to be disbelieved. However, both the courts below without taking into consideration the above fact had held as against the petitioner/accused. Therefore, it is very clear that only to safe guard the Transport Corporation driver, this has been created. 6. When the evidence of P.Ws. 1 and 2 were analysed, no doubt, in the chief examination, they have stated as follows: P.W. 1, in his chief examination has stated thus: “XXX XXX XXX” P.W. 2 in his chief examination has stated thus: “XXX XXX XXX” Whereas when Exs. P2 and P3, the report submitted by PW 8 - the Motor Vehicles Inspector are taken into consideration, the Inspector has categorically stated that there was no damage caused to the body of the bus, whereas damage has been caused only to the Auto and that the left side rear body of the Auto has been dented. Accordingly, if as held by the Courts below that only the Auto has been dashed as against the Transport Corporation bus then there should have been damage in the front side of the Auto and not at the rear side, which the courts below have failed to take note of. Moreover, the very important point is that both the Courts below have stated that P.Ws. 1 and 2 are the eye witnesses to the incident whereas in their cross examination, it is clearly stated by them that they came to the scene of occurrence only after the incident had taken place. Moreover, the very important point is that both the Courts below have stated that P.Ws. 1 and 2 are the eye witnesses to the incident whereas in their cross examination, it is clearly stated by them that they came to the scene of occurrence only after the incident had taken place. When that being so, it has to be concluded that the prosecution has not proved the guilt against the revision petitioner/accused beyond reasonable doubt and therefore the revision petitioner/accused is entitled to benefit of doubt. However, both the courts below have failed to take into consideration all these vital points and convicted the petitioner. Accordingly, the conviction and sentence imposed on the petitioner by the courts below are set aside. The Criminal Revision Case is allowed. The surety bond, if any, executed by the petitioner/accused shall stand cancelled. Fine amount, if any, paid by the petitioner/accused is ordered to be refunded.