MANI Vs. STATE

JUDGEMENT

(1.) The petitioner was convicted by the learned Judicial Magistrate No.II, Hosur and sentenced to undergo three months Simple Imprisonment for offence under Sec. 379 IPC and to undergo one year Simple Imprisonment for offence under Sec. 304(a) IPC, by judgment dtd. 7/2/2017 in C.C.No.44 of 2013. As against the judgment of the trial Court, an appeal was preferred by the petitioner in C.A.No.22 of 2017 before the learned Principal Sessions Judge, Krishnagiri/lower appellate Court. The lower appellate Court, by judgment, dtd. 18/8/2017 dismissed the appeal confirming the conviction and sentence of the trial Court. Against which, the present Criminal Revision Petition is filed.

(2.) The gist of the case is that on 25/12/2012 at about 10.30 a.m., the petitioner/accused was driving the vehicle, TATA Ace bearing registration No.KA-51-A-7666 in a rash and negligent manner proceeding towards Hosur in Kothur, Hosur Road, dashed Mani from behind, who was walking ahead, due to which he sustained injuries on his head, legs and hands, thereafter he was taken to the Government Hospital, Hosur, where he was referred to NIMHANS, Bangalore and thereafter, brought back to Ashoka Hospital, Hosur. On 26/12/2012 at about 8.00 a.m the said Mani succumbed to the injuries. Based on the complaint given by the defacto complainant/P.W.1, the brother of the deceased Mani, P.W.2 who was walking behind his brother, a case was registered for the offences under Ss. 279 and 304A IPC. The prosecution on its side examined P.W.1 to P.W.7 and marked Ex.P1 to Ex.P7. The defence neither examined any witnesses nor marked any documents. The Trial Court on conclusion of the trial convicted the petitioner which was confirmed by the Lower Appellate Court and sentenced the petitioner as stated above.

(3.) The contention of the petitioner is that except the relatives of the deceased, no private individual examined in this case. P.W.1, P.W.2, P.W.4 are brothers and P.W.3 is the wife of the deceased Mani. P.W.1 admits that it was P.W.2 who informed him about the accident and thereafter, he reached the scene of occurrence. Further, P.W.1 admits that he is not aware that on whose negligence, the accident took place. P.W.2, the brother of P.W.1 states that he was walking behind his brother/deceased Mani, at that time, the accident occurred, since the vehicle came from the behind, he is not certain as to whether the vehicle driven in a rash and negligent manner by the petitioner. P.W.3, wife of the deceased states about accompanying the deceased to the hospital and she admits that only after the accident, she was informed. P.W.4, another brother of the deceased is the witness for the observation mahazar, Ex.P2. P.W.5 is the Sub-Inspector of Police, who received the complaint from P.W.1 and registered the FIR/Ex.P3. P.W.6 is the witness to the rough sketch/Ex.P2, he was unable to give details he identifies his signature alone. P.W.7 is the Investigating Officer who conducted further investigation, examined the witnesses, prepared observation mahazar and rough sketch, conducted inquest, sent the body for post mortem and the vehicle for inspection. Ex.P6/Motor Vehicle Inspection Report and Ex.P7/Post mortem report marked. Since Motor Vehicle Inspector and Post Mortem Doctor not examined as witness, Ex.P6 and Ex.P7 not proved in the manner known to law. It is further submitted that the presence of P.W.2 is highly doubtful since P.W.2 not stated anything about the presence of P.W.1. Further, P.W.1 and P.W.3 admit that after the accident, they received information and they reached the scene of occurrence, hence, P.W.2 is only the material witness. P.W.2 admits that he along with his brother/deceased Mani were walking on the left edge of the road, the accident took place from behind, he could not have seen whether the Tata Ace van came in a rash and negligent manner. In this case, P.W.4 and P.W.6 are the witnesses for observation mahazar and rough sketch. It is further submitted that from the observation mahazar, the spot of accident is not properly recorded. It can been seen that the accident had taken place in the middle of the road and not on the left edge, as spoken to by P.W.2, hence presence of P.W.2 is highly doubtful. The finding of the Courts below that the wind screen of the vehicle broken and it could have happened only due to rash and negligence cannot be accepted. Further, the Trial Court placed heavy reliance on rough sketch/Ex.P4 by stating that the accident took place on the left edge of the road which confirm that the petitioner was driving the vehicle in a rash and negligent manner and dashed the pedestrian Mani, cannot be accepted. It is further submitted that in this case, the deceased was taken to various Hospitals, died nearly after 24 hours of the accident, the reason for the death could have been for various other reasons and hence, the non-examination of Doctor who conducted post mortem is fatal to the prosecution case. In support of his contention, the petitioner relied upon the decision of this Court in the case of Arumugam vs. State by Sub-Inspector of Police, Uthkkuli Police Station, Erode reported in (2001) 2 LW(Crl.) 773.