JUDGMENT :

(Prayer: Petition filed under Section 397 read with 401 of the Criminal Procedure Code, to call for the records relating to the conviction imposed in the judgment dated 18.06.2015 made in C.A.No.62 of 2014 on the file of the learned Special Judge, Full Additional Charge of Third Additional Sessions Court, Gobichettipalayam, confirming the judgment dated 25.08.2014 made in C.C.No.152 of 2009 on the file of the learned Judicial Magistrate, Sathyamangalam and set aside the same.)

1. The matter is heard through “Video Conference”.

2. This criminal revision case is filed against the conviction imposed in the judgment dated 18.06.2015 made in C.A.No.62 of 2014 on the file of the learned Special Judge, Full Additional Charge of Third Additional Sessions Court, Gobichettipalayam, confirming the judgment dated 25.08.2014 made in C.C.No.152 of 2009 on the file of the learned Judicial Magistrate, Sathyamangalam, for the offences under Section 279 and 304(A) of IPC to undergo six months rigorous imprisonment and fine of Rs.1,000/- in default to undergo three months simple imprisonment and to undergo one year rigorous imprisonment and fine of Rs.5,000/- in default to undergo six months simple imprisonment.

3. The revision petitioner as the driver in TATA Ace bearing Registration No.TN-38-AW-2705, while so on 29.05.2009, the respondent police registered case in Crime No.157 of 2009 against the petitioner for the alleged offence under Sections 279 and 304(A) of IPC, on the basis of complaint given by one Balakrishnan, brother of one Ramasamy who came in his two wheeler bearing Registration No.TN-48-W-0473 and died in the alleged accident. According to the prosecution, the petitioner being the driver of TATA Ace came against the deceased and dashed against the two wheeler. After the investigation, the respondent-police filed final report in C.C.No.152 of 2009 on the file of the learned Judicial Magistrate, Sathyamangalam.

4. During the course of trial, the prosecution has examined P.W.1 to P.W.10 and marked Exs.P1 to P7 and M.O.1 Series. The petitioner had received copies of the documents and denied his complicity and thereby defended the case. However, the trial Court has rejected his defence theory and convicted him in the judgment dated 25.08.2014. On appeal, the same has been confirmed in C.A.No.62 of 2015.

5. The learned counsel for the revision petitioner would contend that the last opportunity to avoid the accident does not call upon the accused since it is the deceased who had invited the accident and P.W.6, who was projected as chance witness and his evidence does not pass the test of credibility, in view of the answer elicited in the cross examination.

6. The case of the prosecution in brief is that

(i) on 29.05.2009 at 11.30 am in the NH 209 road Government Girls Higher Secondary School at Puliyampatty, the deceased viz., Ramasamy, while overtaking the bus moving towards South from North in his motorbike namely Bajaj Pulsar bearing registration number TN-40-W-0473, the accused namely Rayappan, drove in a rash and negligent manner, his vehicle namely TATA Ace bearing registration number TN-38-AW-2705 coming from South to North collided with the deceased vehicle and on complaint, police registered the FIR under Section 279 and 304(A) of IPC.

7. The learned counsel for the revision petitioner would contend that the accused who has driving his TATA Ace vehicle in a slow speed on a left hand side of the road. While in the opposite direction, a Government bus was moving and from the behind the deceased was riding the two wheeler and trying to overtake by coming to the extreme left to his side and hence, it is due to the fault of the deceased the accident has taken place and draw my attention S.O.S marked in the rough sketch and based upon the rough sketch would contend that more than 50% on the left hand side of the road went on the opposite vehicle namely for the line of driving of the accused the deceased have crossed over the half