MAHENDIRAN Vs. STATE

JUDGEMENT

(1.) The petitioner/accused was convicted by the learned Judicial Magistrate, Vaniyambadi in STC.No.100 of 2016 by judgment dtd. 31/10/2019 and sentenced to undergo six months simple imprisonment and to pay a fine of Rs.1,000.00, in default to undergo two months simple imprisonment for the offence under Sec. 304(A) IPC and to undergo three months simple imprisonment for the offence under Sec. 279 IPC. Aggrieved against the same, the petitioner preferred an appeal before the Sessions Court in C.A.No.107 of 2019. The learned III Additional Sessions Judge, Tirupattur, Vellore dismissed the appeal by judgment dtd. 8/4/2022 confirming the conviction and sentence of the Trial Court. Against which, the present revision is filed.

(2.) The case against the petitioner is that on 1/4/2016 P.W.1/defacto complainant took her son named Billa, aged 1 1/2 years in the two wheeler to the Primary Health Centre, Vaniyambadi for administering vaccination. She dropped her son near the Parking and went to park the two wheeler, at that time, the Ambulance driven by the petitioner which came in the reverse direction dashed against the defacto complainant's son, ran over him and the child died in the spot. P.W.2 to P.W.5 are the eye witnesses who witnessed the accident. The petitioner got down from the vehicle and ran away. Thereafter, a complaint was lodged to P.W.10/Sub-Inspector of Police and a case in Crime No.60 of 2016 registered for the offence under Ss. 279 and 304(A) IPC. P.W.11/Investigating Officer took up the investigation, visited the scene of occurrence, prepared observation mahazar and rough sketch, examined the witnesses in the presence of P.W.6 and P.W.8. P.W.7/Doctor conducted postmortem and confirmed that the death was due to accident. Thereafter, the vehicle was sent for inspection and P.W.9/Motor Vehicle Inspector had given a report. On conclusion of investigation, charge sheet filed. During trial, P.W.1 to P.W.11 examined and Ex.P1 to Ex.P7 marked. The trial Court on conclusion of trial found the petitioner guilty and convicted him as stated above. The Lower Appellate Court confirmed the conviction and sentence imposed by the Trial Court.

(3.) The contention of the learned counsel for the petitioner is that P.W.1, who is the mother of the boy confirmed that she brought her son in her two wheeler, dropped him in front of the Primary Health Centre and went to park her two wheeler. P.W.1 without any care dropped the boy in the middle of the carriage way where various other Public Offices like Panchayat Office, Primary Health Centre, Ration shop, Women Self Help Group office and Post Office are situated. The petitioner a driver of the Ambulance reversed the vehicle for emergency, at that time, the boy who was in the middle of the carriage way got hit and he was ran over. It is P.W.1/mother without concerned and care by negligence attributed to the accident. He would submit that the vehicle such as Ambulance, Fire service, Police are emergency vehicles where time is the essence for their driving and taking reverse cannot be said to be any negligence. P.W.2 to P.W.4 clearly stated that only after hearing the noise and cry of P.W.1/mother, they went to the scene of occurrence and they have not seen the accident. P.W.5's presence is also highly doubtful. In this case, the accident occurred purely on the negligence and carelessness of P.W.1 and the petitioner taking the vehicle in a reverse direction cannot be said to have driven the vehicle in a rash and negligent manner. Referring to Ex.P2/observation mahazar and Ex.P6/rough sketch, the learned counsel submitted that the place of occurrence is a public place where many Public Offices such as Post Office, Ration Shop, Panchayat Office, etc. are situated and the defacto complainant/P.W.1 left the child in the middle of the carriage way, hence there is no rash and negligence on the part of the petitioner. The Trial Court as well as the Lower Appellate Court failed to consider these aspects. He further submitted that on an humanitarian consideration, the petitioner paid a sum of Rs.1,50,000.00 to P.W.1. In support of his contention, the learned counsel for the petitioner relied upon the decision of the Hon'ble Supreme Court in the case of Baijnath Singh vs. The State of Bihar reported in (1972) 2 SCC 264 for the point that criminal negligence can be found in varying sets of circumstances, in this case the negligence has to be attributed to P.W.1 and for the point that the driver of the vehicle who caused the accident will be guilty if it is proved that he had driven the vehicle at a speed deviating from the Rules of the road and proceeded on the wrong side, thereby the driver has put himself in such a position that he was able to apply the brake in time. In this case, there is no rash and negligence of the accused proved which attributed to the direct result of the accident and death of the victim.