Madras High CourtS.Balakrishnan vs State Rep By on 26 June, 2007Author:S.TamilvananBench:S.TamilvananIN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 26.06.2007

CORAM:

THE HONOURABLE MR.JUSTICE S.TAMILVANAN

Criminal R.C. No.88 of 2005



S.Balakrishnan					.. Petitioner

			Vs.

State rep by
Inspector of Police
Upper Coonoor Police Station 			.. Respondent



	Criminal Revision Petition filed underSection 397and401Cr.P.C. against the Judgment dated 24.08.2004, passed in C.A.No.8 of 2004 by the Sessions Judge, Nilgris at Uthagamandalam, confirming the conviction, but modifying the sentence passed in STC No.356 of 2001, dated 12.02.2004 by the Judicial Magistrate, Coonoor only in respect of the indefault sentenceu/s 279from 3 months to one month in default simple imprisonment and prays to set aside the conviction and sentence.

			For petitioner     	: Mr.K.V.Sridharan
			For respondent  	: Mr.Saravanan
					          Govt. Advocate (crl. side)



O R D E RThis Criminal Revision has been preferred by the petitioner / accused against the Judgment dated 24.08.2004, made in C.A.No.8 of 2004 on the file of the learned Sessions Judge, Nilgris at Uthagamandalam, confirming the conviction, but modifying the sentence, dated 12.02.2004,  passed in STC No.356 of 2001, on the file of the learned Judicial Magistrate, Coonoor.2. The short facts of the prosecution case are as follows :On 21.08.2001, at about 8.25 a.m, when P.W.1 and his wife, the deceased were proceeding in a two wheeler, bearing Registration No. TN 43 A 2941, the appellant / accused, drew the bus, bearing Registration No.TN 38 N 0626 belongs to the Tamil Nadu Transport Corporation in a rash and negligent manner and caused the motor accident, due to which, the wife of P.W.1, Nangamani, pillion rider was thrown out of the vehicle and sustained injuries, she was immediately taken to the Government Hospital, where she breathed her last. The respondent police, registered a case against the appellant / accused in Cr.No.83 of 2001 underSections 279and304 (A)IPC.  In support of the prosecution case, P.W.1 to P.W.14 were examined, apart from marking Ex.P.1 to Ex.P.10. Considering the oral and documentary evidence, the trial court convicted and sentenced the accused underSection 279, imposed a fine of Rs.500/- and in default to pay the fine amount, he should undergo 3 months S.I. and underSection 304 (A)IPC, imposed a fine of Rs.5,000/- and in default to undergo 6 months S.I.. Against which he preferred an appeal and the appellate court, confirmed the conviction, but modified the default sentence undersection 297IPC from 3 months S.I. to 1 month S.I. Aggrieved by the same, the revision petitioner / accused has preferred this criminal revision.3. Mr.K.V.Sridharan, learned counsel appearing for the revision petitioner would contend that the guilt against the revision petitioner / accused has not been proved by the prosecution beyond reasonable doubt, though there was concurrent finding by the courts below. As there is concurrent finding, in the light of the various decisions rendered by the Hon'ble Supreme Court, unless there is perverse finding or manifest error of law leading to miscarriage of justice, this Court cannot interfere with the same.4. The learned counsel appearing for the revision petitioner, in support of his contention, cited the following decisions :1.B.Bhadriah vs. State of A.P.(1995 SCC (cri) 370)2.P.Babu vs. State of A.P.(1994 SCC (Cri) 424)3.Ramalingam & another vs. State & another(2002-1-LW (Crl) 	    128)4.State of Rajasthan v. Bhawani(2003 SCC (Cri) 1628)5.Veerasamy vs. State(1990 LW. (cri) 225)6.Jerald vs. State by Inspector of Policeetc., (2001-2-L.W. (crl) 	    615) 
According to the learned counsel, the concurrent findings given by the courts below would be construed as perverse and that the doctor has not supported the prosecution case that the deceased Nangamani had sustained injuries, due to motor accident, for which he drew the attention to the evidence of P.W.13, doctor, who gave further treatment to the deceased on 21.03.2001. The learned counsel for the petitioner submits that the doctor has not specifically stated that the deceased had sustained injuries, due to motor accident, similarly, P.W.12, doctor who conducted postmortem has not described the injuries, so as to arrive at a conclusion that the injuries were sustained by her, due to motor accident.5. As contended by the learned Government Advocate (crl.side), the doctor, P.W.13, who gave treatment need not give her opinion that the injuries could have been caused due to motor accident, since she had given only further treatment to the injured. P.W.12, doctor, who conducted postmortem has clearly stated that he conducted the postmortem on the dead body of Nangamani and issued the postmortem certificate, Ex.P.6. As per the postmortem certificate, the doctor had opined that the deceased would have died due to head injury and fracture sustained by her, he found the corresponding haemorrhage in the brain. Hence, I am of the considered view that there is no contradiction in the medical evidence, so as to create suspicion in the prosecution case, based on the motor accident.6. The learned counsel for the revision petitioner cited the decision,Jerald vs. State by Inspector of Policeetc., (2001-2-L.W. (crl) 615) , wherein this Court has held that the postmortem certificate cannot be relied on by the Court, since the doctor was not examined. Here in this case, the doctor, who conducted postmortem was examined and he has admitted that he conducted the postmortem on the body of the deceased Nangamani and he has given  details about the injury sustained by the deceased in the postmortem certificate. Further, P.W.1 to P.W.3, the witnesses, Ex.P.8, sketch prepared by the police and the other documents would clearly establish that the deceased had sustained injuries only due to motor accident on 21.08.2001, as stated by the prosecution.7. According to the learned counsel for the revision petitioner, there is a discrepancy in the evidence of P.W.1, PW.3 and P.W.4 with regard to the place of occurrence. As per the evidence of the said eye witnesses and the sketch, Ex.P.8, the accident had occurred on the northern side junction of the four roads. Immediately on the south of the road junction, Cornwall road has been stated, which crosses  Kothagiri-Coonoor Main Road and proceeds to High Field Road on the north. As per the evidence of P.W.1, P.W.3 and P.W.4, while the two wheeler was proceeding from Cornwall Road towards Kothagiri Road, the bus proceeding from Kothagiri to Coonoor, hit the motor cycle on the northern side of the road junction and caused the accident. It is seen from the evidence of the eye witnesses with reference to the sketch, Ex.P.8 that the accident had taken place only on the north side of the road, which would also show that the bus was driven on the right hand side of the road and caused the accident. Therefore, I am of the view that there is no contradiction in the evidence of P.W.1, P.W.3 and P.W.4, so as to vitiate the prosecution case, with regard to place of occurrence.8. The learned counsel for the revision petitioner would contend that the sketch, Ex.P.8  cannot be taken for consideration, since the Sub-Inspector, who prepared the sketch was not examined as witness and the same was marked through the Investigating Office. While the document was marked before the trial court, the same was not objected to on behalf of the revision petitioner / accused.9. As contended by the learned Government Advocate (crl.side), it is not open to the revision petitioner, disputing the correctness of the sketch prepared by the police. As it relates to factual aspect, since there is a concurrent finding, it is not open to the revision petitioner to dispute the genuineness of the said document, without raising the said plea before the courts below.10. As per the sketch, Ex.P.8 and the evidence of P.W.1, just before the accident, P.W.1 and the deceased pillion rider were proceeding in the two wheeler from Cornwall road towards Kothagiri Road, the bus was proceeding from Kothagiri Road hit the motor cycle and as per the sketch, the motor cycle is shown under the bus. It is seen that the breadth of the road is only 20 feet and the accident had taken place on the right hand side of the road, while the bus was plying at the junction of Kothagiri  Coonoor Main Road. Therefore, as per the sketch and the evidence of the eye witnesses, it has been clearly established that the bus was driven just on the right hand side of the road and caused the accident in a rash and negligent manner.11. As there is concurrent finding, the factual aspect cannot be questioned before this court, by way of criminal revision. The sketch prepared by police on the date of accident has been marked as Ex.P.8 by the trial court, without any objection. In such circumstances, the correctness and genuineness of the sketch cannot be disputed in the revision, as the same could be construed only as an after thought, which is legally not sustainable.12. I am of the considered view that the trial court, as well as the appellate court have given finding, only based on the evidence that the guilt against the revision petitioner / accused had been proved beyond reasonable doubt.13. On the facts and circumstances, I hold that there is no perverse finding  leading to miscarriage of justice, or manifest error of law, so as to warrant this court to interfere with the same and reverse the concurrent finding of the courts below. Further, the appellate court has imposed only a fine of Rs.5,000/- underSection 304 (A)IPC with default sentence, as contended by the learned Government Advocate, only a lenient view has been taken by the court below in imposing sentence and therefore,  I hold that the  revision petition fails, since there is no scope for interference.12. In the result, the Criminal Revision Petition is dismissed.To


The II Additional Family Court
Chennai.