The court relied on the principle of res ipsa loquitor and the distinction between 'high speed' and 'negligence' as established by the Supreme Court to determine the rash driving of the petitioner.

JUDGMENT

(Prayer: Criminal Revision Case is filed under Section 397 r/w 401 of Criminal Procedure Code, to call for entire records and set aside the conviction under Section 304A of IPC and the sentence of 2 years simple imprisonment and fine of Rs.5,000/- in default to undergo simple imprisonment for 1 month passed in the judgment dated 30.07.2018 made in C.A.No.44 of 2017 by the Court of District and Sessions Judge, Tiruvarur confirming the order dated 13.11.2017 made in C.C.No.374 of 2012 on the file of the Court of Judicial Magistrate, Tiruvarur.)

1. The revision petitioner is the driver of TATA Sumo Car bearing Registration No.TN-66-7868. On 18.09.2010 at about 7.00 am in the morning, along Tiruvarur to Thanjavur main road near Ammayappan Mela Street, he hit a Bajaj Pulsar, two wheeler and one Sivagami, who took protection behind the two wheeler, on seeing the rash driving of the TATA Sumo. The said Sivagami was immediately taken to Tiruvarur Medical College Hospital but she was declared dead.

2. On completion of investigation, final report filed against the petitioner for offence under Section 304(A) IPC. The prosecution examined 7 witnesses and marked 8 exhibits. P.W.1, Govindasamy, S/o Pakrisamy is the husband of the deceased, was running a tea shop near the accident spot. The residence of the deceased is opposite direction of the road.

3. The case of the prosecution is that while the deceased was walking from East to West on the southern side of the road, TATA Sumo driven by the petitioner in a rash and negligent manner, with uncontrollable speed, dashed the Bajaj Pulsar, two wheeler which was parked on the left side of the road margin and thereafter, hit the deceased, Sivagami.

3(i). The trial Court on appreciating the evidence, had convicted the petitioner to undergo two years simple imprisonment and fine of Rs.5,000/- in default, one month simple imprisonment for offence under Section 304(A) IPC. The lower appellate Court on re-appreciating the evidence, dismissed the appeal filed by the petitioner.

4. In the revision, it is contended that from the cross examination of the witnesses, it has been proved that these witnesses are not direct eye witnesses to the occurrence but they are only interested witnesses who had reached the spot of accident, after the accident occurred. Therefore, their evidence is not trustworthy.

4(i). Further, it is also contended that the damage caused to the two wheeler as well as the TATA Sumo, the rash and negligence of the driver cannot be presumed, the principle of res ipsa loquitor will not apply in case of road accident.

4(ii). Learned counsel for the petitioner would also relied upon the judgment of the Hon'ble Supreme Court rendered in State of Karnataka Vs. Satish reported in (1998) 8 SCC 493 wherein, the Hon'ble Supreme Court has distinguished the difference between “high speed” and “negligence” and has observed that they are not interchangeable.

5. Learned counsel appearing for the petitioner would submit that none of the witnesses had spoken about the rash or negligent driving of the TATA Sumo and therefore, the conviction has to be set aside.

6. Further, referring the sketch marked as Ex.P5, the learned counsel for the petitioner would submit that the metal road is 25 feet width with mud road margin of 5 feet on either side. Therefore, even if the prosecution case is accepted, the TATA Sumo Car which was proceeding from West to East in the extreme left, had been obstructed by a parked two wheeler in the mid of the road which has caused the accident and not the negligence. Hence, the driver of the TATA Sumo cannot be attributed any negligence or rashness.

7. In support of the submission, the learned counsel relied upon the judgment of this Court rendered in Mani Vs. State reported in 2022 (2) MLJ (Criminal) 463.

8. Per contra, the learned Government Advocate (Crl.Side) submitted that the petitioner who was driving the TATA Sumo Car in an uncontrollable speed, rashly hit a parked two wheeler