(Prayer: Criminal Revision Petition is filed under Section 397 and 401 of Cr.P.C, to call for records pertaining to Crl.A.No.42 of 2023 on the file of the Principal Sessions Judge, Ramanthapuram by its judgment dated 06.12.2023 and confirming the conviction and sentence render in C.C.No. 310 of 2019 on the file of the District Munsif Cum Judicial Magistrate, Kadaladi by its judgment dated 10.02.2023 and set aside the same by allowing this criminal revision petition.)
1. The present criminal revision is filed challenging the order of the Principal Sessions Judge, Ramanthapuram in Crl.A.No.42 of 2023 dated 06.12.2023, whereby the sentence and judgment passed by the District Munsif cum Judicial Magistrate Kadaladi in C.C.No.310 of 2019 dated 10.02.2023, was confirmed.
2. Heard learned counsel for petitioner and learned Additional Public Prosecutor for respondent.
3. The brief facts of the case are that Inspector of Police, Kadaladi Police Station, filed a charge sheet against petitioner, alleging that on 19.11.2018, at approximately 12:30 hours, one Arumugam, while standing on the left side of the road towards Sayalkudi on the Ramanathapuram ECR Road, was run over by the petitioner, who was driving a car bearing registration number KL 55 V 3653. As a result, Arumugam sustained injuries to the right side of his head, forehead, left eyebrow, right knee, and right ankle, and died on the spot. The petitioner was consequently charged
4. The Trial Judge, namely the District Munsif-cum-Judicial Magistrate, Kadaladi, convicted the petitioner under Section 304(A) IPC, relying primarily upon the evidence of P.W.3. The Trial Court observed that P.W.3 had deposed that petitioner herein was driving the car at a high speed and failed to sound the horn, and that the accident occurred only in view thereof. Relevant portion of the finding of the Trial Court is extracted here under:-
5. The petitioner carried the matter in appeal before Principal Sessions Judge, Ramanthapuram. Appellate Court also placed reliance upon evidence of P.W.3. It was found that P.W.3 who is an eye witness had deposed that appellant drove the car in a rash and negligent manner, thereby satisfying the ingredients of Section 304(A) of IPC and thus confirmed the order of the trial Court.
6. Case of petitioner:
6.1. Petitioner on the other hand would submit that both Trial Court as well as Appellate Court had erred in findings that P.W.3 had deposed that petitioner herein was driving the car at high speed and in rash and negligent manner and failed to honk. He would take this Court through the evidence of P.W.3 to submit that nowhere P.W.3 in his testimony has stated about speed or rash and negligent driving.
6.2. That there are discrepancies between evidence of P.W.2 and P.W. 3 and Report of Investigating Officer. While P.W.2 and P.W.3 had stated that vehicle was moving from Sayalkudi to Ervadi, the Investigating Officer however, records that it was moving from Ervadi to Sayalkudi.
6.3. Eye witnesses viz., P.W.2 and P.W.3 deposed that they were present at the time when the incident occurred and consuming tea in a nearby tea stall. However, Investigation Report would state that there were no tea stalls close by.
6.4. That petitioner was actually not standing as found by courts below but instead had moved to the middle of the road and in this regard he would place reliance upon rough sketch.
7. He would submit that in the absence of any evidence to even remotely suggest that accident occurred due to rash and negligent driving, ingredients of Section 304(A) would not be satisfied and thus order of Trial Court as well as that of the Appellate Court suffers from manifest arbitrariness, perverse thus liable to be set aside.
8. Per contra, learned Additional Public Prosecutor appearing for respondent would submit that Courts below have concurrently found that petitioner was driving the vehicle at a high speed. The said finding, according to him, stands corroborated by the fact that after petitioner ran over the deceased Arumugam, body was dragged for a distance of about 20 feet, which circumstance would necessarily lead one to infer that the vehicle was driven in a rash and negligent manner. Hence, ingredients of Section 304-A IPC stand satisfied.
9. He would also contend that, inasmuch as finding regarding rash and negligent driving recorded by Courts below is a concurrent finding of fact, this Court ought to be slow to interfere with the same.
10. Before proceeding further, it would be relevant to refer to Section 304 (A) of IPC, which reads as follows:–
Section 304A – causing death by negligence:
“Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
11. From a reading of Section 304(A) of IPC, it is evident and clear that unless the death is caused by a rash or negligent act, the provision under Section 304(A) would not get attracted. Both the courts below, viz., Trial Court as well as Appellate Court, have arrived at a finding that petitioner was guilty of rash and negligent driving on the basis of the deposition of P.W.3, as would be evident from the extracts referred supra:-
i) Extracts from the Trial Court Judgment:-
ii) Extracts from the Lower Appellate Court Judgment:-
“16. Further the learned counsel for the appellant contention is that the prosecution witnesses not deposed their evidence on the date of occurrence the driver of the offending vehicle had drove the vehicle rash and negligent manner. Further they did not speak about that due to rash and negligent manner of the appellant, this occurrence was happened. The absence of above said aspects, ingredients of 304 A of IPC not made out. Regarding this aspect the learned counsel for the accused relied on reported judgment reported in CDJ 1996 SC 1829 SUPREME COURT OF INDIA in case State of Karnataka Appellant Vs Satish ........ Respondent: 2019 CDJ MHC 5586 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT in case Saravannan Appellant Vs The State by The Respondent. The Inspector of Police. Valanadu Police Station, Trichy learned counsel for the appellant contention is that the Hon ble Apex court held that when the witnesses not deposed their evidence the said accident happened due to rash and negligent manner, Penal Section 304 (A) IPC not applicable. In this regard, this court has gone through the trial court records, it shows that the P.W3 deposed his evidence that at the time of accident, the appellant has drove the vehicle in high speed and not blowing horn and hit against the deceased. The evidence P.W.3 deposed his evidence the accident happened due to rash and negligent manner of the accident This court opinion is that P.W.3 is an eye witness and also occurrence place witness. He has deposed his evidence the appellant drove the car in rash and negligent manner, the accident would be happened Therefore the said part of P.W.3 evidence sufficient to proved ingredients of Sec.304 (A) IPC. Therefore the above said case is not applicable to the present fact of the case. This court has gone through the inquest report it seen that the occurrence was happened due to rash and negligent driver of the vehicle, accident had happened. Further even minor contradiction was found in prosecution witnesses, when their evidence are cogently, trustworthy and naturally minor contradiction not fatal to the prosecution case.”
12. In view thereof, it would be apposite to extract the deposition of P.W.3 on 06.11.2019 before the trial Court, which reads as under:-
13. From a reading of the above deposition of P.W.3, it is clear that P.W.3 has not stated / deposed that petitioner drove the car rashly and negligently.
14. The only other aspect that remains for consideration is whether over-speeding by itself would constitute rash and negligent driving. Even assuming that it is possible to contend that car was being driven at high speed that by itself would not mean rash and negligent driving. In this regard, it may be relevant to refer to the judgment of the Apex Court in the case of State of Karnataka vs. Satish, reported in (1998) 8 SCC 493, wherein it was held that “high speed” is a relative term and that high speed by itself would not necessarily mean rashness or negligence. It was further held that rashness or negligence, being the cause of death, ought to be proved independently of the fact that the vehicle may have been driven at a high speed. Relevant portion of the said judgment reads as under:-
“4. Merely because the truck was being driven at a “high speed” does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately. as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.”
15. This Court is of the view that finding by Trial as well as the Appellate Court in holding that P.W.3 had deposed that petitioner drove rashly and negligently at a high speed is perverse and not based on evidence inasmuch as P.W.3 has not stated so in his testimony.
16. It is necessary to bear in mind that it may not be open to a Trial Court or an Appellate Court to include or add to the deposition of a witness in order to ensure that ingredients of the offence are satisfied. The role of a Trial Court or the Appellate Court is only to weigh the evidence and not to improve upon it.
17. Yet another aspect which may have some bearing is rough sketch. While P.W.2 and P.W.3 have stated that petitioner was stationary and was waiting to cross the road, rough sketch indicates that, the place of occurrence is in the middle of the road / junction. This would again indicate that the findings are contrary to material on record and contrary to investigation report.
18. To appreciate the scope of the revisional petitioner jurisdictional of this Court. It may be relevant to refer to the judgement of the Hon'ble Supreme Court in the case of Amit Kapoor vs Ramesh Chander and another, reported in (2012) 9 SCC 460, wherein Hon'ble Supreme Court held as under:-
“12. ...Revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.
18. ...Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient (Para 18) ground for interference in such cases.”
19. For all the above reasons, this Court is inclined to find that the orders of Trial Court as well as Appellate Court suffer from a patent defect and an error of jurisdiction. Accordingly, impugned order passed by Appellate Court in Crl.A.No.42 of 2023 dated 06.12.2023 confirming the order passed by Trial Court dated 10.02.2023 in C.C.No.310 of 2019 are set aside.
20. With these observations, criminal revision petition stands allowed. No costs.
