JUDGMENT (PRAYER: Criminal Revision Petition filed under Sections 397 and 401 of Criminal Procedure Code, to set aside the conviction and sentence imposed in the judgment dated 10.10.2017 in C.A.No.6 of 2017 on the file of the Principal District and Sessions Judge, Vellore dismissing the appeal against conviction and sentence imposed in judgment dated 21.12.2016 made in C.C.No.208 of 2010 on the file of the Judicial Magistrate, Gudiattam.) 1. The petitioner/accused in C.C.No.208 of 2010 was convicted by the learned Judicial Magistrate, Gudiattam by judgment dated 21.12.2016 for the offence under section 279 and sentenced to undergo six months simple imprisonment and to pay a fine of Rs.250/-, in default to undergo one month simple imprisonment, for the offence under Section 337 IPC and sentenced to undergo six months simple imprisonment and to pay a fine of Rs.250/-, in default to undergo one month simple imprisonment, for the offence under Section 471 304(A) [3 counts] and sentenced to undergo two years simple imprisonment for each count and to pay a fine of Rs.500/- for each count, in default to undergo one month simple imprisonment for each count and the sentences to run concurrently. Against which, the petitioner preferred an appeal in C.A.No.6 of 2017 before the Sessions Court. The learned Principal District and Sessions Judge, Vellore by judgment dated 10.10.2017 dismissed the appeal confirming the conviction and sentence of the Trial Court, against which, the present revision petition is filed. 2. Before the Trial Court, P.W.1 to P.W.17 examined and Ex.P1 to Ex.P14 marked. On the side of the defence, no witnesses examined and no documents marked. On conclusion of the trial, the Trial Court convicted the petitioner which was confirmed by the Lower Appellate Court as stated above. 3. The gist of the case is that on 09.05.2010 at about 10.30 p.m., the petitioner had driven the borewell lorry bearing registration No.KA-01-ME- 1516 and was proceeding in the Katpadi-Gudiyatham road from east to west direction. While he was near the bridge in Govindapuram Division, he drove the vehicle in a rash and negligent manner, dashed against one Selvam who was walking on the southern side of the road towards east and he sustained grievous injury. While he was near the bridge in Govindapuram Division, he drove the vehicle in a rash and negligent manner, dashed against one Selvam who was walking on the southern side of the road towards east and he sustained grievous injury. Thereafter, the petitioner lost balance, dashed against the Tractor driven by one Velu with a Trailer, caused serious damage and thereby, the driver of the Tractor Velu and one of its occupant one Ramraj died. P.W.1 and P.W.2, other occupants of the Tractor, of which P.W.2 sustained injury and P.W.1 lodged a complaint. The injured were taken to the Government Hospital, Gudiyatham in 108 Ambulance where D1/Selvam and D2/Velu pronounced dead, D3/Ramraj was referred to the Government Hospital, Vellore and later, he succumbed to injuries. P.W.17 who received the complaint, visited the scene of occurrence, prepared observation mahazar, rough sketch, enquired the witnesses present, thereafter proceeded to the Hospital conducted inquest, made arrangements for Postmortem and sent both the vehicles, namely, Tractor and borewell lorry for motor vehicle inspection. P.W.11/Motor Vehicle Inspector, examined both the vehicle, given the inspection report Ex.P3 for the Tractor and Ex.P4 for the borewell lorry. P.W.14/Doctor who conducted postmortem on the body of Selvam/D1 and Velu/D2 issued postmortem report Ex.P5 and Ex.P6. P.W.15/Doctor who conducted postmortem on the body of Ramraj/D3, issued postmortem certificate Ex.P7. P.W.16 is the Doctor who treated P.W.2 and issued wound certificate Ex.P8. P.W.8 and P.W.10 are the witnesses to the observation mahazar/Ex.P11, rough sketch/Ex.P10, they have not supported the case of the prosecution. In this case, P.W.3 to P.W.7 though admit they have reached the scene of occurrence after the accident, they are in the nature of hear say witnesses. P.W.1 and P.W.2 are the eye witnesses, P.W.1 is the owner of the Tractor and P.W.2 is his employee. Both of them travelled in the Tractor driven by Velu/D2 along with Ramraj/D3. The Trial Court based on the evidence and materials produced found that the petitioner had driven the lorry in a rash and negligent manner, dashed against D1/Selvam and thereafter moved to the right side of the road, dashed against the Tractor, coming on the opposite direction. Further, due to the accident three persons died and one person sustained injury and hence, the Trial Court convicted the petitioner which was confirmed by the Lower Appellate Court as stated above. 4. Further, due to the accident three persons died and one person sustained injury and hence, the Trial Court convicted the petitioner which was confirmed by the Lower Appellate Court as stated above. 4. The contention of the learned counsel for the petitioner is that the accident took place in the main road at about 10.30 p.m. As per rough sketch/Ex.P10 it is seen that there was no light available near the accident spot. P.W.1 and P.W.2 are the only eye witnesses projected by the prosecution and they have not stated that they have seen the accident with the aid of any light. Admittedly, in this case, no light is present near the scene of occurrence. He further submitted that the presence of P.W.1 is highly unbelievable. P.W.1 states that the petitioner's lorry ran over the legs of D1/Selvam, while he was sleeping in the road and thereafter, dashed against the Tractor. The petitioner got down from his vehicle, P.W.1 questioned him about the same is highly doubtful, further the damage to the Tractor and the injuries sustained by D2, D3 and P.W.2, it is highly doubtful. P.W.1 sustained not notable injuries, P.W.1 states that he made arrangements for 108 Ambulance sending the injured to the hospital and he was also present in the hospital, not taken any treatment is highly artificial. P.W.1 owner of the Tractor lodged a complaint. The narration about the accident by P.W.2 is highly doubtful, as could be seen from the wound certificate/Ex.P8. In the wound certificate, it is recorded that P.W.2 sustained injury when he was walking on the road and there is no mention that he travelled in the Tractor. Further, from the evidence of P.W.16/Doctor, who treated P.W.2, it is seen that there is only laceration on the upper chest measuring 5cmx2cm depth in lungs. P.W.16 further states that he gave first aid to P.W.2 and referred him to the Government Hospital, Vellore where he was given further treatment bu no certificate from Government Hospital, Vellore produced. P.W.16 further confirms that P.W.2 sustained injury while he was walking and not due to fall from the Tractor. Thus, P.W.2 not travelled in the Tractor. 5. The learned counsel further submitted that P.W.11/Motor Vehicle Inspector, who inspected both the Tractor and the Borewell lorry given the inspection reports, Ex.P3 and Ex.P4. P.W.16 further confirms that P.W.2 sustained injury while he was walking and not due to fall from the Tractor. Thus, P.W.2 not travelled in the Tractor. 5. The learned counsel further submitted that P.W.11/Motor Vehicle Inspector, who inspected both the Tractor and the Borewell lorry given the inspection reports, Ex.P3 and Ex.P4. In Ex.P3/Motor vehicle Inspection report of the Tractor, it is recorded that right rear wheel disconnected and in Ex.P4/Motor Vehicle Inspection report, it i seen that the lorry had minimum damage only in the front right corner. It is known fact that the rear wheel of the Tractor is huge which if disconnected, the Tractor will get toppled, due to which the accident took place. He further submitted that the disconnected wheel ran over the legs of D1/Selvam who was sleeping aside, in the road as could be seen from the injury sustained in both the legs of D1, both the legs broken and the flesh part torn apart. Further, the fall of the tyre on the head of D1 might have caused death. To cover up all these facts, the petitioner is shown as reason for the accident. P.W.11 admits that the Tractor was not registered, it was plying illegally and he had not visited the scene of occurrence to find out the tyre marks and the real reason for the accident. He admits that the Tractor was not in a running condition and he inspected the vehicle in stationary condition. P.W.17 admits that he only registered FIR and thereafter, it was one Manickam, Inspector of Police who conducted investigation in this case. Since the said Manickam in the meanwhile passed away P.W.17 deposed about the occurrence and investigation. On perusal of the records, the Trial Court in the entire judgment not even adverted to the cross examination of any of the witnesses, merely relied on the chief examination and convicted the petitioner. The Lower Appellate Court not independently considered the evidence and materials produced and had mechanically dismissed the appeal. 6. The learned counsel for the petitioner fairly submitted that Ex.P3 and Ex.P4 was not confronted with P.W.11 in detail with regard to disconnection of right rear wheel. He further submitted that on the face of the document Ex.P3 and Ex.p4, the damage to the wheels have been recorded which has been taken in evidence. 6. The learned counsel for the petitioner fairly submitted that Ex.P3 and Ex.P4 was not confronted with P.W.11 in detail with regard to disconnection of right rear wheel. He further submitted that on the face of the document Ex.P3 and Ex.p4, the damage to the wheels have been recorded which has been taken in evidence. Hence, referring to the same he made his submissions stating that P.W.1 and P.W.2 are not the eye witnesses to the occurrence, the accident was due to the disconnection of rear wheel of the Tractor which capsized the Tractor, due to which D2 and D3 sustained injury and succumbed. Further, the disconnected wheel ran over the legs of D1 and later he succumbed. The injury to P.W.2 happened only while he was walking which was confirmed by P.W.16. The witnesses to the observation mahazar and rough sketch, P.W.8 and P.W.10, not supported the case of the prosecution. From Ex.P10/rough sketch there is no light in the scene of occurrence and observation mahazar/Ex.P11, there is no reference to any light. These vital facts failed to be considered by the Courts below. Hence, he prayed for acquittal. 7. The learned counsel for the petitioner relied upon the decision of this Court in the case of Kather Avulia vs. State rep. by Inspector of Police, Palayamkottai Police Station, Tirunelveli District and another in Crl.R.C.(MD).No.268 of 2006 dated 22.12.2014 and in the case of Arunachalam vs. State in Crl.R.C.No.1028 of 2014 dated 23.03.2021 and submit that the accused and P.W.1 and P.W.2 are totally strangers and they have not known to each other earlier, the occurrence took place in the night, no test identification parade, conducted to identify the accused, three years thereafter for the first time P.W.1 and P.W.2 identified the accused during trial in Court, is highly unbelievable to be rejected. 8. The learned Government Advocate appearing for the respondent submitted that in this case the bore well lorry was driven by the petitioner is not in dispute, P.W.1 and P.W.2 clearly identified the petitioner. P.W.1 clearly states that the lorry was proceeding from east to west, on the southern side of the road D1 was walking, the bore well lorry dashed against him and thereafter, dashed against the Tractor in which P.W.1 and P.W.2 were travelling along with D2 and D3. P.W.1 clearly states that the lorry was proceeding from east to west, on the southern side of the road D1 was walking, the bore well lorry dashed against him and thereafter, dashed against the Tractor in which P.W.1 and P.W.2 were travelling along with D2 and D3. Immediately, the injured were rushed to the hospital, initially to the Government Hospital, Gudiyatham, thereafter one of the deceased was taken to the Government Hospital, Vellore. P.W.2 referred to the Government Hospital, Vellore. P.W.1 lodged a complaint and on receipt of the complaint, FIR registered, observation mahazar and rough sketch prepared, statement of witnesses present in the scene of occurrence recorded, inquest conducted on the body of D1 to D3 and sent for postmortem. The statement of P.W.16/Doctor who treated P.W.2 recorded, on receipt of the postmortem report, Doctor who conducted postmortem examined and both the vehicles sent for inspection. P.W.11/Motor Vehicle Inspector inspected the vehicle gave his report. On completion of investigation, charge sheet filed in this case. The Trial Court on the evidence of P.W.1 to P.W.17 and Ex.P1 and Ex.P14 rightly convicted the petitioner which was confirmed by the Lower Appellate Court. Hence, he prayed for dismissal of this petition. 9. Considering the submissions made and on perusal of the materials placed before this Court, it is seen that P.W.1 lodged a complaint to the respondent police stating that D1/Selvam was walking on the edge of the road towards Gudiyatham and at that time, the lorry driven by the petitioner dashed him and ran over on both legs of D1, thereafter the lorry treaded to the right side and dashed against the Tractor which was coming on the left side of the road and caused death of D2 and D3 and injury to P.W.1 and P.W.2. P.W.1 states that he sustained simple lacerated injuries, hence he had not taken treatment. The presence of P.W.1 is highly doubtful as could be seen in his evidence. P.W.1 states that “TAMIL” which is a contradiction. Further he states that immediately the lorry was stopped, the driver got down from the lorry, thereafter the lorry dashed against the Tractor, due to which two persons died and two persons injured which is highly improbable. The evidence of P.W.2 is contrary to the evidence of P.W.1. P.W.2 states that the lorry dashed against D1 and thereafter, dashed against the Tractor in which he was travelling. The evidence of P.W.2 is contrary to the evidence of P.W.1. P.W.2 states that the lorry dashed against D1 and thereafter, dashed against the Tractor in which he was travelling. From the wound certificate/Ex.P8 and the evidence of P.W.16/Doctor, it is recorded that P.W.2 was walking on the road and he never travelled in the Tractor which was confirmed by P.W.16 that the injuries sustained by P.W.2 was only due to fall on the road and not possible, due to the fall from the Tractor. Thus the presence of P.W.1 is highly doubtful as well as P.W.2 travelling in the Tractor is also doubtful. It is further confirmed by the evidence of P.W.11/Motor Vehicle Inspector who examined the Tractor and Bore well lorry, gave Ex.P3 and Ex.P4 report. In the Ex.P3/Inspection report of the Tractor, it is stated that the Tractor's right rear wheel disconnect, rear housing damage, right rear wheel mudguard damage, right side battery box damage, front right wheel disc bend, right rear and back left indicators damage, right/left wheel bend, trailer mount hook cut and as regards the Trailer, front right body damage. It is a known fact that the rear wheels of the Tractor are large and huge, the disconnection of the wheel would naturally cause capsizing of the vehicle and that is the reason for the damage to the Tractor and Trailer on the right side. 10. Added to it, it is seen from Ex.P4/Motor Vehicle Inspection report of the bore well lorry, wherein it is stated that front right corner body damage, front right indicator damage, front right wheel front mudguard damage, front right, headlight and indicator damage, front right grill damage, front right wind screen glass damage. The impact of capsizing of the Tractor had caused damage to the right side of the vehicle. Had the bore well lorry turned to the right and hit the Tractor, the impact and damage would be much more to the lorry. From the postmortem report/Ex.P5 of D1/Selvam, it is seen that crush injury over left leg extending upto left foot exposing all the internal structures with the left leg bones, likewise crush injury on the right left from middle upto the medial side of right ankle and crush injury over the left hind foot exposing all structures in the sole of the foot. Further, he also sustained skull injury on the right occipital bone. Further, he also sustained skull injury on the right occipital bone. These injuries cannot happen if the lorry dash D1 from behind. Thus, the only reason for the injury on both the legs is due to running of a tyre or hard substance when the person is lying down and not during walking. Further, from Ex.P10 and Ex.P11, there is no mention regarding presence of light in the accident spot. In the observation mahazar, the width of the road is shown as 24 feet and the accident took place almost 15 feet from the edge of the road. Thus the possibility of the bore well lorry running over D1/Selvam and thereafter dashing against the Tractor coming on the opposite direction is not possible. These vital facts have lost sight and not considered by the Courts below. 11. Further, on perusal of the postmortem report of D2/Velu which is marked as Ex.P6 and on the evidence of P.W.14, it is seen that all the injuries sustained by D2/Velu, Driver of the Tractor is on the right side like right occipital bone fracture, right collar bone fracture, right forearm fracture and other injuries. Likewise for D3/Ramraj, the postmortem certificate/Ex.P7 issued by P.W.15, it is seen that D3 sustained multiple abrasions of various sizes over the right eyebrow region, right parietal region of the scalp, right side of the face, right shoulder, etc. Both the Doctor admit that only due to the fall from the vehicle such injuries are possible. Thus the possibility of the Tractor getting capsized due to the disconnection of rear wheel and getting toppled on the right side cannot be ruled out. Had the lorry hit the Tractor on the right side, the fall will be to the left side of the vehicle and injuries could not be as found in the postmortem report. 12. From the above, it is seen that the prosecution had miserably failed to prove the case beyond all reasonable doubt against the petitioner. In view of the same, this Court is inclined to set aside the conviction passed by the Trial Court which was confirmed by the Lower Appellate Court. 13. Accordingly, the order of conviction passed by the learned Judicial Magistrate, Gudiyatham in C.C.No.208 of 2010 dated 21.12.2016 which was confirmed by learned Principal District and Sessions Judge, Vellore in C.A.No.6 of 2017 dated 10.10.2017 are hereby set aside. 13. Accordingly, the order of conviction passed by the learned Judicial Magistrate, Gudiyatham in C.C.No.208 of 2010 dated 21.12.2016 which was confirmed by learned Principal District and Sessions Judge, Vellore in C.A.No.6 of 2017 dated 10.10.2017 are hereby set aside. The petitioner is acquitted of all the charges levelled against him. 14. In the result, this Criminal revision petition is allowed.