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This Product is Licensed to Mr. Ka. Jeyaprakash, Advocate, Namakkal

Citation : CDJ 2013 MHC 2147

Court : Before the Madurai Bench of Madras High Court
Case No : CrL.RC(MD)NO.306 of 2007
Judges : THE HONOURABLE MRS. JUSTICE ARUNA JAGADEESAN
Parties : Kulandaisamy Versus Inspector of Police, Karur
Appearing Advocates : For the Petitioner: Kathirvelu, Schedule, Advocate. For the Respondent: Mrs. S. Prabha, GA.
Date of Judgment : 07-03-2013
Head Note :
Indian Penal Code - Section 304A -

Comparative Citations:
2013 (2) MLJ(Crl) 797, 2013 (2) LW(Crl) 208

Judgment :

(Prayer: This Criminal Revision Case is filed against the judgement of conviction and sentence dated 30.3.2007 made in CA.No.84/2006
by the learned Sessions Judge, Karur, confirming the judgement of conviction and sentence passed by the learned Judicial Magistrate II,
Karur in CC.No.1311/2004 dated 8.11.2006.)

1. This Criminal Revision Case is filed against the judgement of conviction and sentence dated 30.3.2007 made in CA.No.84/2006 by the
learned Sessions Judge, Karur, confirming the judgement of conviction and sentence passed by the learned Judicial Magistrate II, Karur in
CC.No.1311/2004 dated 8.11.2006, thereby convicting and sentencing the Petitioner for the offence under Section 304A of IPC to undergo
six months Simple Imprisonment and to pay a fine of Rs.500/-, in default to undergo Simple Imprisonment for three months.

2. Mr.Kathirvelu, the learned senior counsel for the Petitioner contended that the conviction and sentence imposed by the court below are
not sustainable in law, as the courts below have failed to appreciate the evidence in a proper and perspective manner. The learned senior

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counsel drew the attention of this court to the evidence of PW.1 and PW.2, who claim to be the eye witnesses and contended that the
possible inference that could be drawn, in appreciating their evidence, is that they would not have witnessed the actual occurrence.

3. The learned senior counsel for the Petitioner would submit that PW.1, in his cross examination, admitted that he cannot see the place of
accident from his house and he had gone to the place of occurrence only on hearing the sound from the place of the accident. The learned
senior counsel submitted that as per the testimony of PW.1, PW.2 was standing in the bus stop and he also came to the scene of occurrence
only on hearing the sound. The learned senior counsel also drew the attention of this court to the admission made by PW.2 that he also came
to the scene of occurrence only on hearing the sound. Therefore, he would submit that the alleged witnesses could not have actually seen the
occurrence.

4. The learned senior counsel would contend that the oral evidence that the bus was driven in a rash and negligent manner and dashed
against the cyclist on the Eastern side of the road was contradictory to the documentary evidence, i.e., observation mahazar, which revealed
that the accident took place on the entry point of Poolamvalasu Village Road, i.e. on the Western side of the North-South road near the bus
stop. He would contend that the version of the Prosecution that the accident had occurred on the Eastern side of the road appears to be
untenable one being contrary to the documentary evidence, i.e. observation mahazar.

5. The learned senior counsel for the Petitioner would further contend that there must be proof that the rash and negligent act of the accused
was the proximate cause of death and there must be a direct nexus between the death of the person and the rash or negligent act of the
accused. The learned senior counsel contended that act causing death must be the Causa causans and it is not enough that it may have been
the Causa Sine qua non. The learned senior counsel referred to the decision of the Honourable Supreme Court reported in AIR-SC-829
(Suleman Rahiman Mulani Vs. State of Maharashtra) wherein it has been held as follows:-

"The requirements of this section are that the death of any person must have been caused by the accused by doing any rash or negligent act.
In other words, there must be proof that the rash or negligent act of the accused was the proximate cause of the death. There must be direct
nexus between the death of a person and the rash or negligent act of the accused. As mentioned earlier there is no evidence to show that it
was rash or the negligent act of the accused that caused the death of the deceased."

6. On the other hand, the learned Government Advocate contended that the court below appreciated the evidence in a proper manner and
believed the evidence of the eye witnesses and having regard to the nature of the offence, convicted the Petitioner for rash and negligent
driving of the vehicle and passed proper sentence, which does not require any interference by this court.

7. The accident had occurred on 15.4.2004 at 10.15 a.m. near Poolamvalasu Bus Stop. According to the Prosecution, the deceased was
returning from the market to his house in his bicycle and was coming from North to South and while he was nearing Poolamvalasu Village
Road Diversion, the motorcycle ridden by the Petitioner accused dashed against the cyclist, causing fatal injuries to him.

8. The Prosecution relied on the testimony of the eye witnesses PW.1 and PW.2 to substantiate their case that the accident had occurred
only due to the rash and negligent driving of the Petitioner. Though PW.1 has stated in his evidence that the motorcycle was driven in a rash
and negligent manner and dashed against the deceased, but his cross examination indicated that he has not seen the accident. In his
evidence, he has admitted that he was sitting in front of his house, which is on the Western side of the North South Road facing
Poolamvalasu Diversion Road. In his cross examination, he has admitted that from his house, he cannot see the place of the accident. His
evidence further indicated that he had gone to the spot after hearing the sound from the place of the accident. In so far as PW.2 is

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concerned, he has also admitted in his cross examination that he had gone to the place of accident only after hearing the sound. Even
according to the Prosecution, he was standing in the bus stop, which is little away from the place of the accident and therefore, he could not
have seen the accident from the place where he was standing.

9. Thus, the evidence of PW.1 and PW.2 clearly indicated that they have gone to the place of the accident only after hearing the sound and
therefore, the possible inference from their evidence that could be drawn is that they were not able to see as to how the cyclist was coming
and whether he attempted to turn to his left side so as to go to Poolamvalasu Village in the road leading Poolamvalasu Village. Admittedly,
the deceased is from Poolamvalasu Village and even according the Prosecution, he was returning to his house in Poolamvalasu Village and
therefore, he had to take the side road, which leads to the Poolamvalasu Village from the main road.

10. When accidents take place on the road, people using or who may happen to be in close vicinity would normally be busy in their own
preoccupation and in the normal course, their attention would be attracted only by the noise or the disturbance caused by the actual impact
resulting from the accident itself. It is only then that they would look towards the direction of the noise and see what had happened. It is
only a matter of coincidence that a person may already be looking in the direction of the accident and may, for that reason, be in a position
to see and later, describe the sequence of events, in which the accident occurred.

11. In the present case, it is not their case that PW.1 and PW.2 were looking towards the direction of the place of accident and they
happened to have witnessed the accident. The evidence of PW.1 and PW.2 revealed that they heard the noise and only thereafter they had
gone to the spot and by that time, the accident was over. Therefore, the oral evidence let in by the Prosecution does not prove the rash and
negligent driving of the motorcyclist.

12. Another important aspect in this case, which raises a considerable doubt regarding the place of the accident, is the contradiction between
the oral evidence of the Prosecution witnesses and documentary evidence, i.e. the observation mahazar. The evidence of the Prosecution
witnesses indicated that the accident had occurred on the North South road on the Eastern side. Ex.P4 rough plan shows the place of the
accident on the Eastern side. On the Western side, near the place of the accident a side road leads to Poolamvalasu Village. Even according
to the Prosecution, the cyclist was coming on the North South road and has to turn to his left, that is, towards the Poolamvalasu Village
Road. But, in the observation mahazar, the place of the accident is shown as the bus stop. Hence, the oral evidence that the accident had
occurred on the Eastern side of the road due to the rash and negligent driving of the cyclist is contradictory to the documentary evidence,
i.e. observation mahazar, which revealed that the accident took place at the entry point of the Village road, i.e. on the Western side of the
North South road at the bus stop. Therefore, the version of the Prosecution that the accident had occurred on the Eastern side of the road
appears to be untenable, being contrary to the documentary evidence, i.e. observation mahazar.

13. There can be no general presumption that a person should have driven a motor vehicle in a rash and negligent manner, merely because
there was an accident. Though contributory negligence on the part of the victim is not known to criminal law, but, however the negligence
of the victim may be relevant in deciding whether the negligence of the accused was direct and efficient cause of the death. Requirements of
Section 304A of IPC are that the death of any person must have been caused by doing any rash or negligent act. In other words, there must
be proof that the rash or negligent act of the accused was the proximate cause of the death. There must be direct nexus between the death of
a person and the rash or negligent act of the accused.

14. In Emperor Vs. Omkar Rampratap (1902-4-Bom-LR-679), it has been held that to impose criminal liability under Section 304A, the
Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused and that act must be

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the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans. It is not enough that it may
have been the causa sine qua non. This principle is reiterated in Jacob Mathew Vs. state of Punjab (2005-6-SCC-1) by the Honourable
Supreme Court.

15. Apart from the fact that there is no reliable evidence to prove the rash and negligent act of the Petitioner accused, it is also to be noticed
that no other circumstance has been pointed out to show that he was driving the motorcycle in a reckless manner. In case the deceased had
suddenly crossed the road from East to West, without taking note of approaching motorcycle, then there was every possibility of his dashing
against the bus without the driver becoming aware of his crossing till it was too late. In that circumstances, if a person suddenly crossed the
road, the motorcyclist, however, slowly he may be driving, may not be in a position to save the accident. Therefore, the Petitioner
motorcycle rider cannot be held to be negligent.

16. By applying the principle enunciated by the Honourable Supreme Court stated supra to the facts of the present case and in view of the
reasons discussed above, I am of the considered view that the court below have miserably failed to appreciate the evidence in a proper
manner and committed illegality in coming to the conclusion that the rash and negligent act of the Petitioner was the result of the accident.
Therefore, the impugned judgement of conviction and sentence is liable to be set aside.

17. In the result, this criminal revision petition is allowed. The impugned judgement of conviction and sentence dated 30.3.2007 made in
CA.No.84/2006 by the learned Sessions Judge, Karur, confirming the judgement of conviction and sentence passed by the learned Judicial
Magistrate II, Karur in CC.No.1311/2004 dated 8.11.2006 is set aside. The Petitioner is acquitted of the charge levelled against him and the
bail bond executed by him shall stand cancelled and the fine amount paid by him shall be refunded to him.
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