MUTHIAH, vs THE INSPECTOR OF POLICE,
- Court
- Madras High Court
CRL A(MD) No. 108 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05-11-2026
CORAM
THE HON'BLE MR.JUSTICE D.LINGESWARAN
CRL A(MD) No. 108 of 2019
CNR:{HCMD010344882019}
Muthiah,
S/o.Subbiah, 21/14, Thaika Street, Tenkasi,
(Now Confined In Central Prison, Madurai)
..Petitioner(s)
Vs
The Inspector of Police,
Andipatti Police Station, Theni District
(Crime No.107/2016)
..Respondent(s)
Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C.
1973 to set aside the conviction and sentence passed in S.C. No.141 of
2016 dated 12.10.2018 by the learned Additional District and Sessions
Judge, (Fast Track) Theni.
For Petitioner(s) :Mr S. Ravi
For Respondent(s) : Mr. G. Ganesh Kumar
(Government Advocate)
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CRL A(MD) No. 108 of 2019
JUDGMENT
The case of the prosecution is that the appellant, Muthiah, was
driving a lorry bearing registration number PY 03 8877 on the Theni–
Madurai High Road at about 14:00 hours on 06.03.2016, under the
influence of alcohol. Near the Government Hospital, Andipatti, he drove
the lorry in a rash and negligent manner at high speed and straight into a
crowd gathered near the hospital, hitting Pandiyan and Parthasarathy. He
then drove the lorry from the northern side of the road to the southern
side, hitting a Tata Magic Van and an auto-rickshaw on the way, and
thereafter two EB poles. The appellant did not stop; he sped away. Auto-
rickshaw drivers, including PW-1, chased him in another vehicle, and the
lorry could be stopped only at a nearby checkpost. The appellant was
arrested there.
2. Pandiyan died at the spot, and Parthasarathy died on the way to
the hospital. Three persons sitting in the Tata Magic Van and one
pedestrian (PW-5) sustained injuries. On completion of the investigation,
the police laid a final report against the appellant for offences under
Section 185 of the Motor Vehicles Act, 1988 and under Sections 279, 304
Part II (two counts), 337 (four counts) and 427 of the Indian Penal
Code,1860 (IPC). The final report was filed before the Judicial
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CRL A(MD) No. 108 of 2019
Magistrate, Andipatti, and taken on file as PRC No. 6 of 2016. After due
process, the learned Magistrate committed the case to the Principal
Sessions Judge, Theni, who made it over to the Additional Sessions
Judge, Theni, for trial.
3. The trial court examined 18 witnesses and marked 17
documents; no material object was marked. The defence adduced neither
oral nor documentary evidence.
4. On consideration of the entire evidence, the trial court held that
the prosecution had proved the offences under Sections 279, 304 Part II
(two counts) and 337 (four counts) of the IPC and Section 185 of the
Motor Vehicles Act. Although it convicted the appellant under Section
279 of the IPC and Section 185 of the Motor Vehicles Act, the trial court
imposed no sentence for those two offences. It sentenced the appellant
only under Section 304 Part II (two counts) and Section 337 (four counts)
of the IPC: seven years of rigorous imprisonment and a fine of Rs.
5,000/- for each count under Section 304 Part II, and a fine of Rs. 1,000/-
for each of the four counts under Section 337. The appellant was
acquitted of the offence under Section 427 of the IPC.
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CRL A(MD) No. 108 of 2019
5. Aggrieved by the judgment of conviction and the sentence, the
appellant has preferred this appeal.
6. Both sides were heard.
7. The learned counsel for the appellant submitted that, although
the appellant was produced before a medical officer, he was not subjected
to a breath analyser test or any laboratory test, and no blood sample was
drawn to determine the alcohol content of his blood. The learned Counsel
for the appellant contended that the trial court relied solely on Exhibit P-
12, the drunkenness certificate issued by the doctor (PW-17), to conclude
that the appellant was under the influence of alcohol. He found fault with
this approach, pointing out that the doctor did not certify that the
appellant was under the influence of alcohol and that, since no blood test
was conducted, the alcohol content of the blood was not established.
8. The learned Counsel for the appellant further submitted that the
witnesses did not identify the appellant as the driver of the lorry involved
in the accident. In the alternative, he argued that, at the worst, the case
was one of death by negligence, and he prayed for appropriate relief.
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CRL A(MD) No. 108 of 2019
9. Per contra, the learned Government Advocate (Criminal Side)
submitted that the appellant was caught red-handed. He relied on the
Motor Vehicle Inspection Report (Exhibit P-5), which records damage to
the lorry, and on the evidence of eyewitnesses, including PW-1, who
clearly identified the appellant as the driver. He further submitted that the
witnesses, by their own observation, and the doctor had both stated that
the appellant was under the influence of alcohol. He added that PW-1 and
the other injured witnesses clearly spoke to the rash and negligent
driving, and that the accident was not caused by mechanical or brake
failure. He therefore prayed that the conviction and sentence be upheld.
10. This Court has carefully considered the rival submissions.
11. Point for consideration:
Whether the Judgment of conviction and sentence passed by
the Trial Court is sustainable?
12. PW-1, the complainant, is an eyewitness. He deposed clearly
that he knew the accused and that, at about 2:00 PM on 06.03.2016, the
accused drove the lorry bearing registration number PY-03-8877 in a rash
and negligent manner. The lorry hit two persons standing in front of the
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Government Hospital, Andipatti, turned to the right and hit an auto-
rickshaw bearing registration number TN 60 F 7084, hit two electric
poles, and then hit a Tata Magic van. According to PW-1, it also hit
Mahalakshmi, Veeralakshmi, Vipin Raj and Gowri. Even then the driver
did not stop and drove towards Madurai.
13. PW-1 and Chinnasamy boarded another auto-rickshaw and
chased the lorry. They could intercept it only near a checkpost some
distance away. They stopped the lorry and pulled the driver out, and PW-
1 observed that the driver appeared to be under the influence of alcohol.
He then learnt the identity of the appellant. PW-1 was subjected to
detailed cross-examination. He identified the accused categorically,
narrated the sequence of events consistently, and proved his complaint,
Exhibit P-1. Nothing was elicited to discredit his evidence.
14. PW-2, Mahalakshmi, is an injured eyewitness and spoke clearly
about the rash and negligent driving of the appellant. In cross-
examination, the rashness and negligence were not disputed. PW-3, PW-
4, PW-5 and PW-9 were also eyewitnesses, few of them injured. There
can therefore be no doubt that the appellant drove the lorry in a rash and
negligent manner.
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15. The evidence of the injured witnesses and the other
eyewitnesses establishes that the lorry was driven at high speed and that it
did not stop even after hitting two persons, two vehicles, two electric
poles and a further pedestrian. This shows that the appellant drove not
only rashly and negligently but also recklessly, in that he failed to stop
after causing a chain of collisions. He was intercepted and arrested
immediately afterwards, so the plea of mistaken identity cannot be
sustained. Further, the Motor Vehicle Inspection Report (Exhibit P-5)
records damage on the right side of the lorry, which is consistent with the
rough sketch and with the manner of the accident described by the
witnesses.
16. The police took the appellant to a Medical Officer. Knowing
the history of the case, the doctor ought to have drawn a blood sample
from him. Instead, the drunkenness certificate bears an endorsement
suggesting that the appellant admitted drinking and did not want a blood
test. That endorsement was made by the police, not by the doctor, and the
doctor failed in his duty by relying on it. Where a person is brought to a
doctor after an accident in which two persons died and several were
injured, the doctor should have taken a blood test. Section 185 of the
Motor Vehicles Act requires proof that the driver had alcohol in his blood
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exceeding 30 mg per 100 ml, as shown by a breath analyser test or a
laboratory test of the blood. It is admitted that neither test was conducted.
The doctor merely signed a printed certificate of drunkenness and
recorded no specific opinion. PW-17, in his examination-in-chief, said
that Exhibit P-12 certified that the appellant had consumed alcohol and
was under the influence of alcohol. In cross-examination, however, he
clarified that Exhibit P-12 did not state that the appellant was under the
influence of alcohol, and he admitted that the endorsement was made by
the police. These contradictions, together with the lack of any specific
opinion in the certificates, make it unsafe to rely on Exhibit P-12 to prove
that the appellant was under the influence of alcohol. The observation of
PW-1 that the appellant appeared to be drunk may show that the appellant
had consumed alcohol, but a lay impression cannot substitute for the
proof the statute requires. There is therefore no reliable evidence that the
appellant had alcohol in his blood beyond the permitted limit. The
conviction under Section 185 of the Motor Vehicles Act cannot be
sustained.
17. The prosecution having failed to prove that the appellant was
under the influence of alcohol at the time of the accident, one aggravating
circumstance on which the conviction under Section 304 Part II of the
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IPC rested is absent. That section requires proof that the accused acted
with the knowledge that his act was likely to cause death, though without
intention to cause it. Rashness and negligence, however gross, do not by
themselves establish such knowledge.
18. The learned Government Advocate (Criminal Side) relied on
Alistair Anthony Pareira v. State of Maharashtra (AIR2012SC3802) to
contend that an offence under Section 304 Part II can be sustained on the
proved facts even if the appellant was not under the influence of alcohol.
This Court has carefully considered that decision. It is distinguishable.
There, it was categorically found that the accused was under the influence
of alcohol and knew the route of the accident very well, since he lived in
the same locality and travelled that route many times a day. Here, the
appellant was a stranger to the area, and nothing on record shows that he
was familiar with the locality. The complaint itself records that he was a
resident of Tirunelveli. The two factors from which the Hon’ble Supreme
Court inferred knowledge in that case, namely intoxication and
familiarity with the place, are absent here.
19. The learned counsel for the appellant relied on the decision of
the Honourable Supreme Court in Prabhakaran v. State of Kerala(2007
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14 SCC 269) for the proposition that the appellant had neither intention
nor knowledge that his driving would cause death, and that the case is
one of rashness and negligence alone. This contention has force. The oral
evidence and the rough sketch (Exhibit P-14) show that the lorry was
being driven on the left side of the road, at its northern end, where a
crowd had gathered in front of the Government Hospital, Andipatti. The
lorry first hit two persons in the crowd. The sketch indicates that the
appellant then turned the lorry to his right, apparently to avoid further
harm, and in doing so hit two more vehicles and two electric poles. After
hitting the poles on the right side, the lorry turned to the left and moved
on. It is plausible that the appellant sped away out of panic. That conduct
is reprehensible and aggravates the offence, but it is equally consistent
with fear as with knowledge, and it does not by itself prove that he knew
his driving would in all probability cause death.
20. The rough sketch (Exhibit P-14) speaks for itself. There is no
doubt that the lorry was driven at high speed and that the appellant was
rash and negligent. However, in the absence of proof that he was under
the influence of alcohol, the knowledge required for an offence under
Section 304 Part II of the IPC cannot be attributed to him.
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21. This Court therefore finds that the appellant had no intention to
cause death and no knowledge that his act would in all probability cause
death. This is a case of rash and negligent driving, which was the direct
cause of the death of two persons, the injury of four others and damage to
vehicles. The conviction under Section 304 Part II of the IPC is
accordingly altered to one under Section 304A of the IPC. As two
persons died in the accident, the conviction under Section 304 Part II
(two counts) is altered to Section 304A (two counts).
22. The trial court found that the four injured persons sustained
only simple injuries and was lenient in imposing only a fine of Rs.
1,000/- for each count. This Court therefore does not interfere with the
punishment under Section 337 of the IPC (four counts). On sentence for
the offence under Section 304A, this Court recalls the observation of the
Honourable Supreme Court in paragraph 9 of Prabhakaran v. State of
Kerala, that the maximum punishment of two years provided under
Section 304A is grossly inadequate and that it is for the legislature to
provide an appropriate sentence. ‘ Prabhakaran’s case concerned the
death of a ten-year-old boy. This case concerns the deaths of two persons.
Further, it is only because of the carelessness of the investigating officer
and the doctor who examined the appellant that the charge under Section
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185 of the Motor Vehicles Act could not be proved; had it been proved,
the position would have been materially different. Taking these
circumstances into account, together with the recklessness of the
appellant in not stopping the vehicle after the accident, this Court
considers it fit to award the maximum sentence of two years of rigorous
imprisonment for each count under Section 304A of the IPC. Since the
deaths of two different persons are separate offences, each warranting its
own punishment, and since the statutory maximum for each is grossly
inadequate, this Court exercises its discretion under Section 31 of the
Code of Criminal Procedure to direct that the sentences run
consecutively.
23. The fine imposed by the trial court is maintained for the altered
offence. The conviction under Section 279 of the IPC is upheld. The trial
court imposed no punishment for that offence on the ground that the
punishment under the other provisions would suffice. Although this is not
the proper course, this Court does not impose any further imprisonment
in an appeal preferred by the accused. The point is answered accordingly.
24. In the result, the appeal is partly allowed. The conviction of the
appellant under Section 304 Part II of IPC (two counts) is altered to a
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conviction under Section 304 A of IPC (two counts) and the sentence is
modified to two years of rigorous imprisonment with a fine of Rs. 5,000/-
for each count with default sentence imposed by the Trial Court. The
sentence of imprisonment is ordered to run consequently. The conviction
of the appellant under Section 337 of IPC (four counts) and the sentence
of fine of Rs.1,000/- imposed by the Trial Court with default clause are
upheld. The conviction under Section 279 of IPC is upheld. The appellant
is acquitted under Section 185 of IPC. The bail bonds executed by the
appellant stands cancelled. The appellant, who is on bail, is directed to
surrender immediately before the trial court to undergo the remaining
period of the sentence. The appellant is entitled to set off the period of
imprisonment already undergone.
05-11-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
Lbm
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CRL A(MD) No. 108 of 2019
D.LINGESWARAN, J.
Lbm
To
1. The Inspector Of Police
Andipatti Police Station, Theni District (Cr.No.107/2016)
2. The Additional Public Prosecutor
Madurai Bench of Madras High Court
Madurai
3.Section Officer ( VR Section )
Madurai Bench of Madras High Court.
CRL A(MD) No. 108 of 2019
05-11-2026
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