JUDGMENT : (Prayer: Criminal Revision Case filed under Section 397 r/w. 401 of Cr.P.C., to set aside the judgment of the learned Judicial Magistrate No.4, Salem in C.C.No.28 of 2014 dated 18.11.2014 as confirmed in C.A.No.161 of 2014 dated 5.3.2015 on the file of III Additional District Sessions Judge, Salem, acquit the accused/appellant.) 1. The convicted accused is the revision petitioner herein. 2. This criminal revision case has been filed against the judgment dated 05.03.2015 in C.A.No.161 of 2014 on the file of III Additional District Judge, Salem confirming the judgment dated 18.11.2014 in C.C.No.28 of 2014 on the file of learned Judicial Magistrate No.4, Salem convicting the under Section 279, 304 (A) I.P.C respectively and sentencing him to 1 year R.I in respect of an offence under Section 304A I.P.C and to a fine of Rs.4000/- in default one month simple imprisonment, convicting him under Section 279 I.P.C and sentencing him to a fine of Rs.750/- in default one month S.I, ordering both sentences to run concurrently. 3. The case of the prosecution in brief is that while P.W.1 was riding his Hero Honda Bike on that day, the bike driven by the accused came from the behind dashed against his vehicle thereby, he lost his balance and the wife of P.W.1 who was travelling in the bike as a pillion fell of imbalance and sustained skull injury and subsequently succumbed to injuries sustained in the motor accident. 4. The trial Court has convicted the accused for the above offences as stated supra and the same was confirmed by the learned III Additional District and Sessions Judge, Salem in C.A.No.161 of 2014 and hence the revision filed by the appellant/accused. 5. The learned counsel for the revision petitioner could contend that the prosecution has not proved the involvement of the vehicle in the accident the manner known to law and the presence of P.W.5 and P.W.6, the alleged occurrence witnesses are doubtful and the Motor Vehicle Inspector Report Ex.P4 does not reflect any damage to the accused vehicle and hence involvement of the vehicle in the alleged accident is highly doubtful. 6. 6. Further contended that there is a discrepancy in the date of the accident in Ex.P4 Motor Vehicle Report and there is a material contradiction with regard to the scene of the occurrence and the manner of the accident between the version of P.W.3 and P.W.4 with that of the P.W.12. 7. The learned Government Advocate (Crl.Side) has made submissions in support of the judgment of the trial Court. 8. The suggestive case of the defense is that involvement of the accused itself is denied. 9. As stated supra, before the trial Court P.W.1 is the husband of the deceased and also driver of his vehicle and P.W.2 is a Doctor of the deceased. Attestor of the Observation Mahazar are examined as P.W.3 and P.W.4 and Occurrence Witnesses P.W.5, P.W.6. P.W.8 is the Motor Vehicle Inspector who had issued Motor Vehicle Report for the both the vehicles under Exs.P3 and P4. P.W.9 is the Doctor through whom post mortem certificate was marked as Ex.P5. P.W.10 and P.W.11 are the police witnesses deposed regarding discharge on their official duty and receipt of Ex.P1 complaint and registration of Ex.P6 F.I.R and preparation of Ex.P7 Sketch and Ex.P2 observation mahazar and filing of the report after investigation. 10. P.W.1 the husband of the deceased, who was riding his two wheeler Hero Honda where deceased was seated as a pillion rider deposed regarding the manner of the accident as stated in Ex.P1 complaint. In the cross examination, he has admitted that the statement and oral complaint of P.W.1 the police has not reduced the oral complaint into writing and he has not informed the police regarding the vehicle No. of the accused party or the name of the accused and hence the burden is upon the prosecution as to how they have identified the vehicle which is dashed from the behind of the vehicle that was proceeding in their front namely P.W.1 two wheeler. 11. In an attempt to make a such statement, P.W.5 and P.W.6 are projected by the prosecution as occurrence witnesses. In the chief-examination, though they could stated that they were present at the time of the occurrence. However on the answer elicited in the cross-examination, I find that the evidence of P.W.5 and P.W.6 are not worthy of belief on their face of their evidence. In the chief-examination, though they could stated that they were present at the time of the occurrence. However on the answer elicited in the cross-examination, I find that the evidence of P.W.5 and P.W.6 are not worthy of belief on their face of their evidence. In the cross examination they could admit that police examined that on 22.07.2013 at 6.00 P.M but Exhibit P1 complaint was given on the day at 10.00 P.M only 22.07.2013 as spoken to by P.W.1 and the Investigation Officer P.W.12 and furthermore police visited the scene only on the next day namely 23.07.2013 and prepared the observation mahazar in the presence of P.W.5 and P.W.6. The attestor of the observation mahazar namely P.W.5 and P.W.6 also claimed that they are occurrence witnesses but time of their presence the scene of the crime as spoken to by them found to be at material contradiction with P.W.11 Investigation Officer. Furthermore, the conduct of P.W.5 and P.W.6 soon after the occurrence could raise a doubt as to their presence at the scene. 12. Yet another point is that P.W.8 Motor Vehicle Inspector who has marked Ex.P3 and Ex.P4 have noted that there was a no damage to the vehicle of the accused. Ex.P3 is the M.V.Report of the accused vehicle and Ex.P4 is the M.V.Report of the deceased vehicle and the Motor Vehicle Inspector have categorically stated that there is absolutely no damage to vehicle of the deceased. 13. Unless the impact was severe, it is unlikely that the pillion rider who was fatally injured would not have been thrown of the vehicle and if that be the case certainly the vehicle of the accused would have also suffered damage and in the instant case there was no damage at all to the vehicle of the accused and even the damage to the rear portion of the victim’s vehicle as per M.V.Report was not severe but only minimal. The said circumstance would only probablize the case of the accused that this vehicle was not involved in the accident. 14. The said circumstance would only probablize the case of the accused that this vehicle was not involved in the accident. 14. The victim had sustained fracture of the skull and such an injury would be possible only if the victim had been thrown off from the vehicle due to a strong impact on the back side of the victim’s vehicle and with no damage being found in the vehicle of the accused and minimal damage to the vehicle of the victim, the occurrence could not have taken place as projected by the prosecution. 15. The witnesses examined are either the close relatives of the complainant or persons from the village of the victim which is evident from the cross-examination of P.W.1 and that as per the evidence of P.W.1 the police did not reduce into writing his oral complaint and he did not inform the vehicle number or the name of the accused. The conduct of P.W.5 and P.W.6 soon after the occurrence as spoken to by them would give raise to doubt as to their presence at the scene and further until the police had examined them they had not reported about the incident to anybody much less the police. 16. Hence, I find that the police said to have identified the vehicle and name of the person with aid of P.W.5 and P.W.6 and the version of P.W.5 and P.W.6 does not pass the test of the reliability and the credibility in view of their material contradiction as to their alleged presence in the scene of the crime. As to the manner of the accident has projected by P.W.1 and the prosecution for the reasons regarded therein, stated supra, I find that, absolutely there was no damage to the vehicle of the accused. But the manner of the accident as spoken to by P.W.1 and discussion in the preceding paragraphs had the deceased who travelled as a pillion rider fell down from the vehicle in which she was travelling unless the impact was severe it is totally likely that pillion rider could fell down. 17. Had there been such a nature of impact, the damage on the rear portion of the victim vehicle should have also been indicative factor. 17. Had there been such a nature of impact, the damage on the rear portion of the victim vehicle should have also been indicative factor. The damage reflected in the victim’s vehicle as per M.V.Report in Ex.B4 is very meagre so also damage caused to the accused vehicle under Ex.P3 is almost ‘nil’ and hence, I find that the involvement of the accused vehicle on that day has projected by the prosecution is surrounded with scene of suspicious. In the absence of any positive evidence to show the involvement of the accused vehicle in turn alleged to have driven the vehicle the answer elicited in the cross-examination of P.W.5, P.W.6 and M.V.Inspector and Investigation Officer appears to have been not considered by both the Courts below. 18. In view of the answer elicited in the cross-examination of P.W.5 and P.W.6 along with the Investigation Officer coupled with the answer elicited from the M.V.Act report Exs.P.3 and P.4 and P.W.8 Motor Vehicle Inspector I find that involvement of the accused in the accident namely is not proved by the prosecution beyond reasonable doubt. 19. In the absence of any positive evidence to establish nexus between the victim’s vehicle with that of the accused vehicle and positive evidence to show the identification of the vehicle and the identification of the accused on that day, both the Courts below has miserably failed to appreciate the answer elicited in the cross-examination of those two witnesses had committed in error in convicting the accused. As the prosecution has failed to prove the charges with positive evidence to the level of beyond reasonable doubt by operation of law, the accused is entitled for acquittal. 20. In this view of the matter, this Court holds that the prosecution having failed to prove the charges beyond reasonable doubt. The conviction and sentence passed by the Courts below are liable to be set aside. 21. In the result, this Criminal Revision Petition is allowed. The conviction and sentence passed by the Courts below is set aside and the revision petitioner is set at liberty and bail bond if any shall stand cancelled