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2018 DIGILAW 2337 (MAD)

V. Gnanamurthy v. State

2018-08-01

N.ANAND VENKATESH

body2018
JUDGMENT : N. ANAND VENKATESH, J. 1. This Criminal Revision Petition has been filed against the judgment in Crl.A.No.15 of 2010 dated 11.08.2011, on the file of the Principle District and Sessions Judge, Coimbatore, confirming the judgment of the Judicial Magistrate No.VIII, Coimbatore, convicting the petitioner for an offence under Section 279 and 304 (A) (2 counts) and under Section 134 (a)(b) r/w 187 of the Motor Vehicle Act, and sentenced to undergo 3 months Simple Imprisonment for an offence under Section 279 IPC, 1 year Simple Imprisonment on each count for the offence under Section 304 (A) and 1 month Simple Imprisonment for the offence under Section 134 (a)(b) r/w 187 of the Motor Vehicle Act, and to pay a total fine of Rs. 2000/-. 2. The case of the prosecution is that on 16.11.2006 at about 9.30 a.m. at Coimbatore Ganapathy Thudialur Road, near Holy Trinity School, the petitioner who was driving a Tipper Lorry from south to north due to his rash and negligent driving, dashed at a two wheeler which was going at the left hand side of the road, as a result of which the driver and the pillion rider were thrown out of the vehicle and the front tyre of the Tipper Lorry ran over them as a result of which both of them died on the spot. 3. This incident was witnessed by PW-3, PW-4, PW-7 and PW-8. This incident was informed to the respondent Police who came to the scene of occurrence and took the statement of PW-8 and reduced it into a complaint [Ex.P-2]. Based on the complaint, an FIR was registered [Ex.P-6] by the Sub Inspector of Police and he prepared the Observation Mahazar and Rough Sketch [Exs.P-1 & P-7] in the presence of witness PW-5. Thereafter, the bodies of the deceased persons were sent to post mortem after identifying the bodies through PW-6. PW-9 was the doctor who conducted the post mortem and her report was marked as Exs.P-8 and P-9. 4. The petitioner was arrested on 17.11.2006, near Ukkadam Bus Stand. The vehicle was sent for inspection to PW-10 and his report was marked as Ex.P-5. 5. The Sub Inspector of Police who conducted the investigation, recorded the statement of witnesses and filed a Final Report before the Trial Court against the petitioner for the above said offences. 4. The petitioner was arrested on 17.11.2006, near Ukkadam Bus Stand. The vehicle was sent for inspection to PW-10 and his report was marked as Ex.P-5. 5. The Sub Inspector of Police who conducted the investigation, recorded the statement of witnesses and filed a Final Report before the Trial Court against the petitioner for the above said offences. The Trial Court took cognizance of the Final Report and framed charges for the above said offences against the petitioner. 6. The prosecution examined PW-1 to PW-11 and marked Exs.P-1 to P-10 in order to prove their case. 7. The Trial Court on appreciation of the oral and documentary evidence and after considering the facts and circumstances of the case was pleased to convict the petitioner for the above said offences and sentenced in the manner indicated above. The petitioner aggrieved by the said judgment filed an appeal before the Principal District and Sessions Court, Coimbatore, and the Appellate Court on considering the materials placed before it, was pleased to confirm the conviction and sentence passed by the Trial Court. Aggrieved by the same, the present Criminal Revision Petition has been filed. 8. Mr. R. Rajan, learned counsel appearing for B.Nedunchezhiyan, learned counsel for the appellant made the following submissions: PW-3 and PW-4 who were cited as the eye witnesses, could not have seen the occurrence since even in their evidence they clearly say that, at the time of the incident both of them were able to see only the rear side of the Tipper Lorry and if really the Tipper Lorry had dashed the two wheeler which was going in front of it, PW-3 and PW-4 could not have witnessed the said accident. PW-7 in his evidence states that he was travelling in a Motor Cycle at which point of time the two wheeler and the Tipper Lorry were following him in the road. Therefore, at the time of accident, PW-7 was driving his vehicle in the front and the accident had happened behind him and therefore he could not have seen the accident. PW-8 in his evidence states that he and PW-7 were standing near the school and were waiting for the deceased persons at which point of time the Tipper Lorry dashed at the Motor Cycle and as a result of it both of them died. PW-8 in his evidence states that he and PW-7 were standing near the school and were waiting for the deceased persons at which point of time the Tipper Lorry dashed at the Motor Cycle and as a result of it both of them died. He further goes on to see that the Police came to the scene of occurrence and he gave the complaint to the Police. By pointing to the evidence of PW-8, the learned counsel would submit that the version of PW-7 and PW-8 are totally contradictory and both of them could not have seen the accident. PW-8 in his chief examination has stated that the complaint was given to the Police in the scene of occurrence but however in the cross examination he has stated that the complaint was given in the Police Station in the presence of 10 persons who all signed as the witnesses. However, Ex.P-2 does not reflect any signature of the witnesses. The learned counsel also pointed out the fact that the name of the petitioner was inserted in a different hand writing at a later point of time and this was accepted by PW-8 in his evidence. The learned counsel also pointed out to the evidence of PW-8 and submitted that in chief examination the complaint is said to have been given at 12.00 noon but however the FIR states that it was given at 10.30 a.m., and in the cross examination PW-8 also says that he called the Police at 10.15 a.m., over phone. Therefore, the manner in which the law was set in motion itself throws a lot of doubt about the manner in which the petitioner was roped in the case. The learned counsel also pointed out to the evidence of PW-10, the Motor Vehicle Inspector who has clearly stated that on inspection of the two wheeler only the front light and petrol tank were damaged and there was no damage on the back side of the vehicle. Pointing out to this evidence, the learned counsel submitted that the entire case of the prosecution that the Tipper Lorry hit the two wheeler from behind becomes highly doubtful. Pointing out to this evidence, the learned counsel submitted that the entire case of the prosecution that the Tipper Lorry hit the two wheeler from behind becomes highly doubtful. The leaned counsel also brought to the notice of the Court the Rough Sketch which was marked as Ex.P-7 and contended that the deceased persons have attempted to overtake the Tipper Lorry on the left hand side and it is only due to their negligence, the accident took place. 9. Per contra, Mrs. S. Thankira, learned Government Advocate (Crl. Side) for the respondent contended that a cumulative reading of the evidence of PW-3, PW-4, PW-7 and PW-8 clearly shows that the accident happened only due to the rash and negligent driving of the Tipper Lorry by the petitioner as a result of which two innocent lives were lost. The learned counsel further contended that both the Courts below have taken into consideration the oral and documentary evidence and have come to the categorical conclusion that the accident happened only due to the rash and negligent driving of the petitioner, and therefore, there is no ground to interfere with the findings of the Courts below and the Criminal Revision Petition deserves to be dismissed. 10. This Court has carefully considered the submissions made on either side and also the evidence available on record. PW-3 in his evidence has stated as follows: XXX XXX XXX 11. From the evidence of PW-3 and PW-4 it is clear that both of them had seen the back side of the Lorry at the time when the incident took place. PW-3 states that the right side of the Lorry dashed at the vehicle. 12. Pw-7 in his evidence has stated as follows: XXX XXX XXX 13. Pw-8 in his evidence has stated as follows: XXX XXX XXX 14. A combined reading of the evidence of PW-7 and PW-8 gives rise to a material contradiction. PW-7 states that he was going in a Motor Cycle and the two wheeler in which both the deceased were travelling and the Tipper Lorry driven by the petitioner, were coming behind his vehicle, at which point of time this accident has taken place. Therefore, PW-7 could not have seen the accident. PW-8 in his evidence states that he and PW-7 were standing near the School waiting for both the deceased persons to come at which point of time the accident occurred. Therefore, PW-7 could not have seen the accident. PW-8 in his evidence states that he and PW-7 were standing near the School waiting for both the deceased persons to come at which point of time the accident occurred. If the evidence of PW-8 is taken into account, then the evidence of PW-7 is false. If the evidence of PW-7 is taken into account, the evidence of PW-8 is false. Therefore, it will be safe for this Court to disbelieve the evidence of PW-7 and PW-8. 15. This Court is therefore left with the evidence of only PW-3 and PW-4. It was already observed herein above that both of them were able to see the back side of the Tipper Lorry at the time of accident. It will be useful to refer the Rough Sketch which was marked as Ex.P-7. It can be seen from the Rough Sketch that the two wheeler driver by the deceased person was over taking the Tipper Lorry from the left side at which point of time this accident has taken place. The Rough Sketch also shows that the motorbike and the two deceased persons were thrown to the right side and the Tipper Lorry has come to a halt after 60 feet from the place of occurrence. 16. It will also be useful to refer to the evidence of PW-11 who is the Inspector of Police who deposed regarding the investigation conducted by the erstwhile Sub Inspector of Police Mr. Nagendran. In his evidence he states as follows: XXX XXX XXX 17. It will also be useful to refer to the evidence of the Motor Vehicle Inspector [PW-10] in his evidence has stated as follows: XXX XXX XXX 18. The evidence of PW-10 along with the Inspection Report [Ex.P-5] clearly reveals the fact that there was damage in the Motor Vehicle only in the head light and the petrol tank and there was no damage on the back side of the Motor Vehicle. It is therefore clear that the theory of PW-2 and PW-3 that the Tipper Lorry hit the Motor Vehicle driven by the deceased persons on the back side of the Motor Cycle is completely falsified by the Rough Sketch, Inspection Report and also the evidence of PW-10. It is therefore clear that the theory of PW-2 and PW-3 that the Tipper Lorry hit the Motor Vehicle driven by the deceased persons on the back side of the Motor Cycle is completely falsified by the Rough Sketch, Inspection Report and also the evidence of PW-10. There is evidence to the effect that PW-3 and PW-4 were there at the time of the accident but however they have not witnessed the accident at the time when it happened since both of them were only able to see the back side of the Tipper Lorry, even as per their own admission in evidence. 19. One more factor that should be taken into consideration by this Court is the manner in which the complaint was lodged in this case. PW-8 is the complainant in this case. In the cross examination, he states that he called the Police at about 10.15 a.m., and the Police arrived at the scene of occurrence. In the cross examination he states that he wrote the complaint in the Police Station at about 12.00 noon and the complaint was witnessed by ten other persons and they also signed as witnesses. In the complaint Ex.P-2 no such signature of the witness is found. He also adds in his evidence that the name of the petitioner viz., Gnanamurthy was written in a different hand writing and the complaint was written in a different hand writing. 20. Pw-7 in his evidence states that he and PW-8 went to the Police Station at around 2.30 p.m., and thereafter the complaint was taken. If the complaint was given at 2.30 p.m., as per PW-7, it is not known as to how the FIR came to be registered at 10.30 a.m. Even in the FIR it is seen that the name of the petitioner has been added in a different hand writing. 21. A cumulative reading of the above evidence would go to show that a serious doubt has been created in the manner in which the law was set in motion. It also creates a serious doubt that the name of the petitioner was added at a later point of time in a different hand writing in both the complaint and the FIR. 22. It also creates a serious doubt that the name of the petitioner was added at a later point of time in a different hand writing in both the complaint and the FIR. 22. Both the Courts below have proceeded on the basis that the Tipper Lorry driven by the petitioner was driven at a speed and it had hit the two wheeler which was going in the front and therefore the accident had happened. The fact that the offending vehicle was a Tipper Lorry weighed more in the mind of both the Courts below instead of independently assessing and finding out who was at negligence at the time of the accident. Both the Courts below went by the evidence of PW-3, PW-4, PW-7 and PW-8 and have come to an erroneous conclusion that the accident happened due to the rash and negligent driving of the Tipper Lorry by the petitioner. 23. It is unfortunate that an accident has taken place and two lives have been lost in the accident. However, in order to determine the criminality of the driver of the offending vehicle, the Court has to necessarily assess the evidence available on record and satisfy itself that the death has happened as a result of the rash and negligent act of the accused. Simply because an accident took place which resulted in death or injury to somebody, it cannot be taken for granted that the driver of the vehicle involved in the accident is guilty of the crime. There cannot be presumption of negligence from the mere fact that the offending vehicle was a Tipper Lorry. Both the Courts below seems to have assumed that driving at high speed by itself is a negligent act. In Ravikapoor .Vs. State of Rajasthan, (2012) AIR SC 2986, the Hon'ble Supreme Court has held that a person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result and that it may not always be possible to determine with reference to the speed of a vehicle, whether a person was driving rash and negligently and that even when one is driving a vehicle at a slow speed, but, recklessly and negligently, it would amount to rash and negligent driving. Therefore, speed by itself is not a criteria to punish a person under Section 304 (A) IPC. 24. Therefore, speed by itself is not a criteria to punish a person under Section 304 (A) IPC. 24. There may be exceptional cases where the rule of res ipsa locuitur applies: Res ipsa loquitur, which is more of a convenient label to describe certain peculiar fact-situations, rather than an abstract legal doctrine, belongs, in reality, to the law of torts. Even in actions in torts, as a rule, it is for the plaintiff to prove that the injury occurred due to the negligence of the defendant, and the mere fact that an accident has occurred the cause of which is unknown, is not, evidence of negligence. But the peculiar circumstances constituting the event or accident in a particular case may themselves proclaim negligence of somebody as cause of the accident. Satisfaction of this condition alone is not sufficient for res ipsa to come into play, and it has to be further satisfied that the event which caused the accident was within the defendant's control. Thus, the two-fold requirement for the application of the maxim is that the res must not only bespeak negligence but pin it on the defendant. 25. There are two lines of approach in regard to the application and effect of the maxim, res ipsa loquitur. According to the first, where the maxim applies, it operates as an exception to the general rule that the burden of proof of the alleged negligence is, in the first instance, on the plaintiff. In this view, if the nature of an accident is such that the mere happening of it is evidence of negligence, the burden shifts or is in the first instance on the defendant to disprove his liability. Such shifting or casting of the burden on the defendant is on account of a presumption of law arising against the defendant from the constituent circumstances of the accident itself, which bespeak negligence of the defendant. 26. According to the other line of approach res ipsa loquitur is not a special rule of substantive law; but only an aid in the evaluation of evidence, a means of estimating logical probability from the circumstances of the accident. In this view, res ipsa does not require the raising of any presumption of law which must shift the onus on to the defendant. In this view, res ipsa does not require the raising of any presumption of law which must shift the onus on to the defendant. It only allows the drawing of a permissive inference of fact as distinguished from a mandatory presumption, having regard to the totality of the circumstances and the probabilities of the case. 27. The first line of approach cannot be invoked in the trial of criminal cases where the accused stands charged for causing injury or death by a negligent or rash act. The primary reasons for non-application of res ipsa loquitur as an abstract doctrine to criminal trials, are: firstly, in a criminal trial the burden of proving everything essential to the establishment of the charge against the accused always rests on the prosecution; secondly, while in civil proceedings a mere preponderance of probability is sufficient to establish a fact in issue, it is not so in criminal proceedings wherein the presumption of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not negligence merely based upon an error of judgment. 28. Understood in the broad, general sense as by the other line of approach-only as a convenient ratiocinative aid in assessment of evidence and in drawing permissive inferences under s. 114, Evidence Act, res ipsa loquitur can be usefully invoked in the trial of criminal cases wherein the negligence of the accused is a fact in issue. Such functional use of the maxim will not conflict with the provisions and principles of the Evidence Act, peculiar to criminal jurisprudence. However such simplified and pragmatic application of the notion of res ipsa loquitur as a part of the general mode of inferring a fact in issue from another circumstantial fact, is subject to all the conditions the satisfaction of which is essential before an accused can be convicted on the basis of circumstantial evidence alone. However such simplified and pragmatic application of the notion of res ipsa loquitur as a part of the general mode of inferring a fact in issue from another circumstantial fact, is subject to all the conditions the satisfaction of which is essential before an accused can be convicted on the basis of circumstantial evidence alone. These conditions are: (i) All the circumstances including the objective circumstances constituting the accident, must be firmly established; (ii) those circumstances must be of a determinative tendency pointing unerringly towards the guilt of the accused, and (iii) the circumstances should make the chain so complete that they cannot reasonably raise any other hypothesis save that of the guilt of the accused. 29. In the instant case, this principle also cannot be applied since the proved facts and circumstances does not speak for itself and the prosecution has not established beyond reasonable doubt that the accident happened only due to the rash and negligent driving of the petitioner. The benefit of doubt in this case must go in favour of the petitioner. 30. Both the Courts below did not appreciate the evidence on record in a proper prospective and there is infirmity and perversity in the findings of both the Courts below which necessitate the interference by this Court in exercise of its revisional jurisdiction. 31. The judgments of both the Courts below are hereby set aside and the Criminal Revision Petition is allowed. The bail bond executed by the petitioner shall stand cancelled and the fine amount, if any, paid by the petitioner shall be refunded.