VEERASAMY NAIDU Vs. STATE

JUDGEMENT

(1.) THE revision petitioner has been convicted by the learned Judicial First Class Magistrate, Athur in C.C.No.74 of 1983 under Secs.304-A and 279, I.P.C. and sentenced to undergo Rigorous imprisonment for a period of three months and to pay a fine of Rs.500 in default to undergo Rigorous Imprisonment for a further period of one month under Sec.304-A of I.P.C. and to pay a fine of Rs.250 in default to undergo simple imprisonment for a period of one month under Sec.279, I.P.C. on the allegation that on 26.3.1982 at about 3.30 P.M. on the Salem-Attur Main Road near Mail Stones 41/8-42 he drove the town bus TMN 6578 in a rash and negligent manner and dashed against a tamarind tree and thereby caused the death of one Jayaraman and also caused damage to the bus. Criminal Appeal No.247 of 1983 preferred by the accused was dismissed by the learned Additional Sessions Judge, Salem. Hence the revision.

(2.) THE prosecution case in brief is as follows: On the date of occurrence, P.Ws.1 and his wife. P.W.4 got into the A.T.C. Town Bus TMN 6578 at about 3.00 P.M. at Vaithiakavundanpudhur to go to Athur hospital as P.W.1 was unwell. THE accused was driving that bus. THE deceased was also travelling in that bus. When the bus was proceeding on the Salem-Athur main road near Thalavoipatti diversion road, the accused drove the vehicle in a rash and negligent manner and dashed against a tamarind tree, as a result which deceased Jayaraman was thrown out of the bus and blood was oozing from his mouth and nose. He was taken to the Government Hospital, Athur for treatment. P.W.9, Head Constable attached to Athur Police Station on receipt of information from the Government Hospital visited the hospital and found the injured in an unconscious stage. He examined and recorded Ex.P1 from P.W.1 and registered the same as Crime No.183 of 1982 and transferred the same to Ethappur Police Station as the occurrence took place within the jurisdiction of that police station. P.W.10 Sub Inspector of Police, Ethappur registered the transferred F.I.R., as Crime No.30 of 1982 and took up the investigation. On receipt of Ex.P6 death intimation, he altered the offence into one under Sec.304-A, I.P.C. and sent express reports to the superior officers. On 273.1982 at about 10.30 AM. he visited Athur Government Hospital, held inquest over the dead body of Jayaraman and examined witnesses. Ex.P8 is the inquest report. He then sent the dead body for postmortem.

(3.) ADMITTEDLY, the evidence of the prosecution is that the deceased had consumed alcohol. The bus involved in the accident is also a town bus where standing passengers are allowed. Subsequently, the deceased alone is said to have been thrown out of the bus as a result of the accident. But also has not sustained serious damage. It is also in evidence that a vehicle came in the opposite direction. But for the accused swerving his bus to the left, there could have been a collision with the vehicle coming in the opposite direction. The learned trial Magistrate seems to have taken the view that in the absence of evidence that the vehicle coming in the opposite direction was coming at a great speed and therefore, the accused was forced to swerve his bus to the left, it has to be held that the accused drove the bus rashly and negligently. Once it is found that there was a vehicle coming in the opposite direction, it is for the prosecution to prove that notwithstanding the fact that a vehicle was coming in the opposite direction, the accused drove the bus rashly and negligently. In the absence of such evidence, the benefit must go to the accused and it has to be held that in order to avoid collision with the vehicle coming in the opposite direction, the accused swerved his bus to the left. In fact, the learned Sessions Judge has accepted the contention that in order to avoid collision, the accused swerved the vehicle to the left. Having accepted the same, the logical collusion should be, in the absence of evidence by the prosecution as to how the vehicle in the opposite direction came, that the accused swerved the vehicle only to avoid collision and it is purely and accident and that the bus while swerving hit on the tamarind tree. Further the possibility of the injured jumping out of the bus, since he is in an unbalanced state of mind, cannot be ruled out.