Full Judgment
M. Karpagavinayagam, J.
1. Mr. K. Perumal, the petitioner herein is the accused in a case filed under Section 304A I.P.C. for having caused the death of a cyclist Jayasundaram by rash and negligent driving. He was convicted to undergo R.I. for 3 months and to pay a fine of Rs. 1500/-, in default to suffer S.I. for 3 months, by the learned Judicial Magistrate No. 1, Kovilpatti. In the appeal, though the conviction was confirmed, the sentence of R.I. was set aside and fine of Rs. 3,000/- was imposed by the learned District and Sessions Judge, Tuticorin. As against the conviction, this revision has been filed before this Court.
2. Facts are these :- On 29-3-1992 at about 2.10 p.m. in the Kazhugumalai to Tenkasi Road P.W. 1 Jayaraj was going on a bicycle. His brother Jayasundaram, the deceased was also going on another cycle 20 feet away from him. At that time, the petitioner was driving a K.T.C. bus from Kovilpatti to Tenkasi at a great speed without sounding the horn. While so, the said bus hit against the cyclist Jayasundaram, with the result the victim fell down with serious injuries. On the way to hospital he died. P.W.9, Sub Inspector of Police registered a case under Section 304-A I.P.C. After the investigation, P.W.10, Inspector of Police filed the charge sheet for the offence under Section 304-A I.P.C.
3. After trial, the trial Court convicted the petitioner, which was confirmed by the lower appellate Court.
4. Mr. Gopinath, the learned senior counsel for the petitioner would contend that there are various discrepancies in the testimonies of the prosecution witnesses, viz., P.Ws. 1 to 3, that P.W.4, the bus conductor himself stated that the accident was due to the fault of the deceased, that P.W. 1 could not have seen the occurrence, since he himself admitted that only on hearing the noise he turned back and that therefore, both the Courts below without considering these aspects convicted the petitioner, which is not legal.
5. The learned Government Advocate refuting the submissions made by the counsel for the petitioner in his reply would contend that the judgments of both the Courts below are perfectly valid,
6. There are three eye witnesses, namely, P.Ws. 1 to 3. These witnesses would say that the petitioner drove the vehicle with a high speed without blowing horn and hit against the victim Jayasundaram who was going on a cycle on the left side of the road. Admittedly, there was no mechanical defect. Pointing out the contradiction between P.W. 1 and P.W. 3 it is stated, P.W. 1 could not have seen the occurrence. The evidence of P.W. 2 cannot be used in favour of the prosecution, since he would state that he did not know as to how the accident took place. Therefore, the evidence of P.Ws. 1 and 3 alone would give the narration of the incident.
7. P.W. 4, the bus conductor would say in the chief that he was looking into the accounts of the tickets and at that time the bus suddenly stopped after the immediate brake and then he got down and saw the victim lying down with injuries. Therefore, the evidence of P.W.4 being the conductor of the bus to the effect that the accident took place only due to the fault of the victim, cannot assume significance.
8. No doubt it is true that there are some variations between the evidence of P.Ws. 1 and 3. But, regarding the bus having been rashly driven with a high speed even without the horn, the evidence of both these witnesses is consistent. Moreover, both the Courts below discussed this factual aspect and relied upon the evidence of P.Ws. 1 and 3 to come to the conclusion that there was a rash driving on the part of the petitioner resulting in the accident.
9. As regards the negligent driving, dehors the evidence of P.Ws. 1 and 3 in this case we have got other materials, namely, sketch which was drawn by the investigating officer. As per this, the accident took place only on the left side of the road. The bus was coming from east to west. Admittedly, both the deceased and P.W. 1 were going in front towards the west on the left side. The sketch shows that there is a sufficient space available on the right side about 40 feet. Therefore, the petitioner ought to have swerved to the right side and avoided the accident. So, in addition to the deposition of the witnesses, the material relating to the rule of Res Ipsa Loquitoris available in this case.
10. As held by this Court as well as the Apex Court, the driver running over the deceased without attempting to save the deceased by swerving to other side when there was sufficient space, is liable to be punished under Section 304A I.P.C. The decision can be quoted from Baldevji v. State of Gujarat, : 1979 CriLJ1136 .
11. In view of what is stated above, the materials relied upon by the Courts below, in my view, would be sufficient to hold that the petitioner drove the vehicle rashly and negligently and hit against the cyclist and caused the injuries, which was direct cause of the death in this case.
12. However, having regard to the fact that the petitioner is aged about 56 years and he has stopped the vehicle and taken the deceased to the hospital, I feel that the interest of justice would be met by reducing the fine amount of Rs. 3,000/- into Rs. 1,000/-. If the fine imposed by the lower appellate Court is already paid, out of the said Rs. 3,000/-, Rs. 2,000/- is directed to be refunded to the petitioner.
13. With the above modification in sentence, the revision petition is dismissed.