P. Ramasamy vs The Inspector of Police Traffic Investigation N-2, Kasimedu Chennai-13

Honourable Mr. Justice B. Rajendran

The petitioner stood charged for the offences punishable u/s 304(A) of IPC and Section 184 of the Motor Vehicles Act and after trial, he was convicted for the offence u/s 304-A of IPC and sentenced to undergo rigorous imprisonment for a period of 12 months, with fine of Rs. 4,500/-, failing which to undergo rigorous imprisonment for a period of three months. The petitioner was also convicted for the offence u/s 184 of the Motor Vehicles Act and sentenced to pay a fine of Rs. 500/- failing which to undergo rigorous imprisonment for a period of one month. The appeal filed by the petitioner questioning his conviction and sentence passed by the trial court was dismissed by the learned III Additional Sessions Judge, Chennai on 02.08.2007 against which the present Criminal Revision Case is filed. The case of the prosecution is that on 07.05.2005 at about 3.30 pm, the petitioner was driving the lorry bearing Registration No. TN-04-J-6777 in S.N. Chetty Street and Veeraragavan Road junction. At that time, the petitioner, due to his rash and negligent driving of the lorry, hit a motor cyclist from behind, who was driving the motor cycle bearing Registration No. TN 20 Q 3045 and caused his death.

The learned counsel for the petitioner would mainly contend that the courts below failed to see that the appellant was not identified by any of the prosecution witnesses as driver of the vehicle and in the absence of the same, the conviction and sentence imposed by the courts below are vitiated. The courts below also failed to consider the fact that neither the owner of the vehicle nor the trip sheet were produced by the prosecution to prove the guilt against the petitioner. In the cross-examination, PW1 has categorically stated that he has not identified the petitioner. Similarly, Pws 2 and 3, who were projected as eye witnesses, have not specifically stated that it is the petitioner who had driven the offending vehicle. Admittedly, the respondent also not conducted any identification parade, to identify the accused and the accused was identified only in the Court at the time of trial. Under those circumstances, in the absence of any material evidence to show that it is the petitioner who had driven the offending vehicle at the time of accident, the orders of the Courts below cannot be legally sustained and he prayed for allowing this Criminal Revision Case.

On the other hand, the learned Government Advocate would contend that Pws 1 to 3 have given cogent and natural evidence in support of the case of the prosecution. The prosecution witnesses have also identified the deceased and therefore, it cannot be said that the deceased was not identified and that he was identified for the first time in the Court. Merely because the trip sheet was not produced or the employees of the lorry company have not been examined, it will not vitiate the case of the prosecution in any manner.

I heard the counsel for both sides and perused the materials placed on record. The main contention of the counsel for the petitioner is that the petitioner was not identified by the prosecution witnesses at all and he was not the person who had driven the vehicle at the time of the accident.

In this connection, the evidence of the prosecution witnesses has to be looked into. In the cross-examination of PW1, he did not say that it was the petitioner who had driven the vehicle. Even in the complaint given by PW1, it was only stated as ''driver of the vehicle''. Further, the prosecution has not examined the owner of the vehicle or employees employed by the owner of the vehicle or produced the trip sheet. Even the evidence of Pws 2 and 3 did not indicate that they have identified the petitioner and it was the petitioner who had driven the vehicle. The respondent also did not conduct any identification parade to identify the driver of the offending vehicle. There is also no evidence available to show as to how the petitioner was identified by the prosecution witnesses and therefore, the evidence of Pws 1 to 3 cannot be relied on to base an order of conviction against the petitioner.

It is the case of the prosecution that the vehicle said to have been driven by the petitioner had hit the two wheeler from behind in a rash and negligent manner with high speed. In this context, it has to be mentioned that admittedly, in the accident spot, there was a speed breaker to reduce the speed of the vehicles on the road and therefore it gives rise to a suspicion that the vehicle, which hit the two wheeler from behind, could not have been driven at high speed. Therefore, it cannot be said that it is due to rash and negligent driving of the driver of the lorry the accident occurred and there was also no evidence available to prove the rash and negligent driving of the lorry. The courts below have only taken into consideration that if the lorry was driven at a normal speed due to a speed breaker, the motor cyclist could have only sustained minor injuries and the fact that he died on the spot would indicate the rash and negligent driving of the driver of the lorry. Such a conclusion arrived at by the courts below is without any legal evidence and only based on surmises.

In the context, the learned counsel for the petitioner relied on the unreported order of this Court passed in Crl. R.C. No. 221 of 2009 on 28.03.2011 (Rajendran vs. The Inspector of Police, N-2, Kasimedu Traffic Investigation, Chennai 600 013) wherein in an identical circumstances, this Court held that identity of the petitioner/accused was not established by the prosecution and therefore benefit of doubt has to be given in favour of the accused. In para No. 8 of the order dated 28.03.2011, it was specifically held that "it is the duty of the prosecution to examine the owner of the vehicle to show that at the time of the accident, who drove the vehicle. Further, PW9 has not seized the trip sheet to show that who drove the vehicle at the time of the accident. In such circumstances, the prosecution has miserably failed to prove that the revision petitioner/accused alone driven the vehicle at the time of accident." In the present case also, the prosecution has failed to either examine the owner of the lorry or produced the trip sheet or examined any of the employees of the lorry company and therefore, I am of the view that benefit of doubt has to be given in favour of the petitioner/accused. In the result, the Judgment dated 02.08.2007 made in Crl. Appeal No. 98 of 2006 on the file of the learned III Additional Sessions Judge, Chennai confirming the order dated 07.02.2006 passed in C.C. No. 5036 of 2005 on the file the learned III Metropolitan Magistrate, George Town, Chennai are set aside. The criminal revision case is allowed. The fine amount, if any paid by the petitioner/accused, is directed to be refunded to him forthwith.