JUDGMENT :

(Prayer: Criminal Original Petition filed under Section 397 read with 401 Cr.P.C., to set aside the conviction and sentence made in Crl.A.No. 28 of 2012 dated 09.06.2014 on the file of the District and Sessions Judge, Nagapattinam, in confirming the Judgment made in C.C.No. 256 of 2010 dated 25.06.2012 on field of the Judicial Magistrate No. II (FAC), Nagappattinam and thus allow the criminal revision.)

1. This Criminal Revision case has been filed under Section 397 read with 401 Cr.P.C., by the accused in C.C.No. 256 of 2010 which was pending on the file of the learned Judicial Magistrate, Nagapattinam, wherein by Judgment dated 25.06.2012, the present petitioner, who was the sole accused was convicted for offence under Sections 279, 338 and 304(A) IPC and was sentenced to undergo one year simple imprisonment for two counts, under Section 304A IPC and separate sentence was not imposed under Section 279 IPC in view of Section 71 IPC and also to pay a fine of Rs.1,000/-, in default to undergo one month simple imprisonment for offence under Section 338 IPC.

2. The petitioner herein questioned that particular conviction and sentence and filed Crl.A.No. 28 of 2012 and the learned District and Sessions Judge, Nagapattinam, by Judgment dated 09.06.2014 had dismissed the Criminal Appeal and had confirmed both the conviction and sentence imposed by the learned Judicial Magistrate No.II, Nagapattinam. Aggrieved by the said Judgment, the petitioner, who is the accused, has filed the present Criminal Revision Case.

3. Heard arguments advanced by Mr. Swami Subramaniam, learned counsel for the petitioner and Mr. E.Raj Thilak, learned Additional Public Prosecutor appearing for the State.

4. On 04.01.2010 at around 22.45 hours, at the Nagore Main Road which admittedly is a National Highway, near Nice Hotel, it is the case of the prosecution that the accused had driven his lorry bearing Registration No. TN 67 B 2934 in a rash and negligent manner and hit against an auto bearing Registration No. TN 51 E 6690 which was coming in the opposite direction. Owing to the collusion, the driver of the auto died on the spot or rather was declared dead when brought to the hospital. The two passengers in the auto were treated for injuries and within a few days, one of the passengers also died. The other passenger, who survived had been examined as PW-1 in the trial.

5. In this connection, the respondent, namely, Inspector of Police, Nagoor Police Station, had registered a First Information Report in Crime No. 12 of 2010 against the accused under Sections 279, 338 and 304-A IPC. After investigation of the offences, a final report had been filed before the learned Judicial Magistrate No.II, Nagapattinam, which had been taken cognizance as C.C.No. 256 of 2010.

6. After following due procedure, which included furnishing of copies under Section 207 of Cr.P.C., and framing of charges under the above Section which charges the petitioner/accused abjurred, the prosecution being invited to substantiate the charges. The prosecution examined PW-1 to PW-16 and also marked Exs. P-1 to P-13. On appreciation of the evidence as stated above, the learned Judicial Magistrate No.II, Nagapattinam, had thought it fit to convict the present petitioners for offence under Section 279, 338 and 304A IPC and sentenced him to undergo the imprisonment and to pay fine as aforesaid.

7. PW-1, who survived the accident and his friend, who died owing to the accident had both got into the auto bearing Registration No. TN 51 E 6690 at around 22.45 hours on 04.01.2010 at Nagapattinam to go to their place of residence at South Palpannaicherry. This particular auto was driven by Selvam @ Muruganandam, who was also a resident of that area.

8. It is the case of the prosecution that near Nice Hotel in Nagore Main road, the lorry bearing registration No. TN 67 B 2934, which according to PW-1 in his evidence was being driven at a very high speed came in the opposite direction and dashed against th