- (1.) THE petitioner is the accused in C.C. No. 335 of 2003 on the file of the learned District Munsif cum Judicial Magistrate, Perundurai and he stood charged for the offences under Sections 279 and 304-A of IPC. Upon completion of trial, the petitioner was convicted by the trial court for the offence under Section 304-A of IPC and sentenced to undergo six months rigorous imprisonment with fine of Rs.5,000.00, failing which to undergo three months rigorous imprisonement. The trial court further held that since punishment was imposed for the major offence for which the petitioner was tried upon namely Section 304-A of IPC, even though the offence under Section 279 of IPC was also proved, no punishment has been given separately for the offence under Section 279 of IPC. The conviction and sentence imposed on the petitioner was unsuccessfully challenged by him before the appellate Court by filing C.A. No. 237 of 2007.
(2.) THE revision petitioner is the driver of a bus. On 16.09.2003, at about 14.00 hours, when the petitioner was driving the bus bearing Registration No. TN 39 D 3339, near Vijayamangalam Tiruppur Road, the bus hit against a pedestarian namely Sarasu @ Saraswathy. Pws 1 and 5, who were present on the spot, took the injured to the Government General Hospital, Erode for treatment, but inspite of the treatment, the injured succumbed to the injuries on the same day at 3.30 pm. In this connection, a complaint was given by PW1 based on which Ex.P4, First Information Report dated 16.09.2003 came to be registered against the petitioner/accused for the offences punishable under Section 279 and 304-A of IPC. According to the learned counsel for the revision petitioner, the petitioner had driven the vehicle in a normal speed and he did not drive it in a rash and negligent manner, as alleged. Only due to the mistake of the deceased, who suddenly darted across the road, the accident took place. Even though the witnesses were examined on behalf of the prosecution, the deposition of Pws1, 2 and 5 are contradictory to each other, especially with regard to the place of the accident. Therefore, the courts below, instead of convicting the petitioner ought to have given the benefit of doubt in his favour especially when none of the prosecution witnesses have spoken about the rash and negligent driving of the petitioner. Even otherwise, merely because the vehicle was driven at an abnormal speed, it cannot be said that such driving was a rash and negligent driving and it would not constitute the offence punishable under Sections 279 and 304-A of IPC. In other words, speed alone is not the criteria to fasten the liability on the petitioner. Further, even as per the version of the prosecution witnesses, at the time of accident, the deceased suddenly crossed the road and therefore, the deceased had adequately contributed to the accident and the petitioner cannot be found fault with.
(3.) THE learned counsel for the petitioner further vehemently contended that the Doctor, who performed the postmortem on the deceased, was not examined before the court below and the non-examination of the Doctor is fatal to the case of the prosecution. Though the postmortem report was maked as a document, Ex.P7, it was marked only through the Invesitgation Officer, PW7, who is not competent to depose about the postmortem report. In this context, the learned counsel for the petitioner relied on the decisions of this Court reported in (Jerald vs. State by Inspector of Police, Kancheepuram Taluk Police Station, Kancheepuram) 2001 2 Law Weekly (Crl) 615 and (Arumugam vs. State by Sub Inspector of Police, Uttukkuli Police Station, Erode Distric) 2001 2 Law Weekly (Crl) 773 to contend that non-examination of the Doctor and non-marking of the postmortem report through the Doctor, who performed the autopsy, is fatal to the case of the prosecution.;