Ayyanamurthy vs State by The Sub-Inspector of Police

A.C. Arumugaperumal Adityan, J.—The judgment passed in C.A. No. 7 of 2003 on the file of the Principal Sessions Judge, Nagapattinam,

is under challenge in this revision. The accused is a driver in Tamil Nadu Transport Corporation bus. On 5.9.1998 at about 10.00 am, the accused

while driving the State transport Corporation bus bearing Registration No. TN-29-N-0491 from Nagapattinam to Tiruvarur in a rash and negligent

manner while overtaking another bus proceeding in front of him had dashed against a tree on the right side of the road causing injuries to P.W. 1-

Aruldass, a passenger in the said bus at that time. The accused has been charged under Sections 279 & 338 IPC.

The learned Judicial Magistrate, after taking cognizance of the offence, took the case on file as STC. No. 1061 of 2002 and issued summons to

the accused. On appearance of the accused, the learned Judicial Magistrate has furnished copies u/s 207 of Cr.P.C., and when charges were

framed and questioned, the accused pleaded not guilty. Before the trail Court, P.W. 1 to P.W. 9 were examined and Ex. P.1 to Ex. P.7 were

exhibited. No material objects marked.

P.W. 1 is the injured Aruldass. According to him, the accident had occurred 2 kms away from Kilvaur at the Tiruvarur Nagapattinam main road

while he was proceeding in the said Tamil Nadu State Transport Corporation bus bearing registration No. TN-29-N-0491. According to him, he

was sitting on the rear side of the bus along with his family and that the driver of the bus, the accused herein, while overtaking another bus which

was proceeding in the same direction, had driven the bus rashly and negligently and dashed against the tree which was standing on the right side of

the road resulting grievous injuries on his right upper hand and that he had preferred Ex. P.1-complaint, after he was discharged from the hospital.

P.W. 2 is the wife of P.W. 1. She would depose that at the time of occurrence, she was also traveling along with P.W. 1, her husband in the

same bus, and the accused, the driver of the ill-fated bus, while overtaking another bus had dashed against a tree standing on the right side of the

road resulting the glass in the window pan got broken, fell on the right hand of her husband P.W. 1 causing grievous injury and that P.W. 1 was

taken to government hospital at Tanjure by the accused in the same bus.

P.W. 3 is the Motor Vehicle Inspector, who had inspected the ill-fated bus on 6.3.1999 at 13.45 hours and issued Ex. P.2-certificate stating

that there is no mechanical defect in the bus, which involved in the accident.

P.W. 4 is the conductor of the bus which involved in the accident. He has supported the case of the prosecution. He was treated as a hostile

witness.

P.W. 5 is the the Sub-Inspector of Police Keevelur Police Station, who had registered the case on the basis of Ex. P.1-compalint under

Keevelur police station Cr. No. 520 of 1998 u/s 279 & 338 IPC. Ex. P.3 is the copy of FIR. He had visited the place of occurrence and had

drawn a rough sketch Ex. P.4 and has prepared an observation mahazar Ex. P.5 in the presence of P.W. 6. The trip sheet for the ill-fated bus

bearing registration No. TN-29-N-0491 is Ex. P.6. He has examined the witnesses. But the statements have already been recorded by P.W. 8,

the head constable, who had made initial investigation in this case. He had arrested the accused and released on bail on 6.3.1999. He has obtained

wound certificate from the doctor, who had examined P.W. 1 after the occurrence. P.W. 8 is the head constable, who had recorded the statement

of P.W. 1.

P.W. 7 is the successor of P.W. 5, who after completing the investigation had filed the charge sheet against the accused.

When incriminating circumstances were put to the accused u/s 313 of Cr.P.C., he would deny his complicity with the crime. He has not

examined any witness on his side. After going through the evidence both oral and documentary, the learned trial Judge has come to the conclusion

that the charges u/s 279 & 338 levelled against the accused have been proved beyond any reasonable doubt by the prosecution and accordingly

convicted the accused u/s 279 & 338 IPC and sentenced the accused to undergo 1 week SI and slapped a fine of Rs. 750/- u/s 279 IPC and

sentenced the accused to undergo 1 week SI and levied a fine of Rs. 1,000/- with default sentence. Aggrieved by the findings of the learned trial

Judge, the accused preferred an appeal in C.A. No. 7 of 2003 before the Principal Sessions Judge, Nagapattinam, who after due deliberations

and after scanning the evidence, has modified the sentence imposed by the trial Judge by setting aside the sentence of 1 week SI while confirming

the fine imposed by the learned trial judge u/s 279 and 330 IPC, which necessitated the accused to prefer this revision.

Heard the learned Counsel appearing for the revision petitioner Mr. M. Vijayaraj and the learned Additional Public Prosecutor Mr. V.R.

Balasubramanian and considered their respective submissions.

Now the point for determination in this revision is whether the conviction and sentence of the learned first appellate Judge in C.A. No. 7 of

2003 on the file of the Principal Sessions Judge, Nagapattinam, is sustainable for the reasons stated in the memorandum of revision?

The Point :- The learned Counsel for the revision petitioner would take me through the entire evidence of the prosecution witnesses and also

pointed out the discrepancies made in the statement of P.W. 1 before the Court and before the doctor, who had examined him. The doctor, who

had examined P.W. 1, the injured, was not examined in this case. But the copy of the accident register alone has been marked as Ex. P.7 through

Investigating Officer P.W. 5. In Ex. P.7 it has been noted by the doctor, who had examined P.W. 1 for the injury sustained by P.W. 1, as alleged

to have been sustained in moving bus at Veevalur around 4.00 am on 5.9.1998. But as per Ex. P.3, FIR, the occurrence is said to have occurred

at 9.10 am on 5.9.1998. Admittedly the FIR was lodged only on 16.9.1998 i.e., 11 days after the occurrence. The reason given in the evidence of

P.W. 1 is that soon after the occurrence he was admitted in the Government Medical College hospital at Tanjure by the driver and conductor of

the bus which involved in the accident and that only after the discharge from the hospital he had preferred the complaint. It is seen from Ex. P.3-

FIR that P.W. 1 was discharged from the hospital on 12.9.1999 itself. But the FIR was lodged only on 16.9.1998. There is no explanation

forthcoming from the side of the prosecution why the intimation was not sent from the hospital to the concerned police even after the admission of

P.W. 1 in the Tanjore Medical College Hospital on 5.9.1998 as an inpatient in ward No. 5. The learned Additional Public Prosecutor would fairly

concede that according to the complaint preferred by P.W. 1, he had sustained injuries due to the fall of glass pieces from the window pan of the

bus due to the impact of hit against the tree at the time of occurrence. But no glass pieces were recovered from the place of occurrence under

mahazar by the police and produced before the trial Court. Further it is the case of the prosecution that while overtaking another bus the accused

had dashed against the tree, which was standing on the right side of the road at the place of occurrence at Tiruvarur Nagapattianam main road. The

learned Counsel for the revision petitioner would point out the deposition in the cross-examination of P.W. 1 wherein he had admitted that there

was no trees at the place of occurrence. P.W. 1 would depose in the cross-examination that eventhough he is having the habit of taking drinks, on

the date of occurrence he has not consumed any liquor. But in Ex. P.7 copy of the accident register the doctor has entered that P.W. 1 was under

the influence of Alcohol. Under such circumstances, it cannot be said that the prosecution has proved the guilt of the accused beyond any

reasonable doubt. Point is answered accordingly.

In the result, the revision is allowed and the conviction and sentence imposed by the learned first appellate Judge in C.A. No. 7 of 2003

against the accused u/s 279 & 338 IPC are set aside and the accused is acquitted of the charges levelled against him. Fine if any paid shall be

refunded to the accused.