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2005 DIGILAW 138 (GAU)

Kriti Singh v. State of Assam

2005-02-17

H.N.SARMA

body2005
JUDGMENT H.N. Sarma, J. 1. This revision petition is directed against the judgment and order passed in Criminal Appeal No. 20/97 dated 15.09.98 by the learned Sessions Judge, Goalpara by which the learned Sessions Judge has dismissed the said appeal filed by the Appellant/Petitioner against the judgment and order passed in G.R. Case No. 742/96 dated 06.10.97 by the learned Chief Judicial Magistrate, Goalpara convicting the accused Petitioner under Section 279/304(A) IPC and sentencing him to undergo rigorous imprisonment for 1(one) month with fine of Rs.200/-, in default to suffer rigorous imprisonment for further 10 (ten) days for the offence under Section 279 IPC and to undergo rigorous imprisonment for 6 (six) months with fine of Rs.1000/-, in default to suffer rigorous imprisonment for 2(two) months for the offence under Section 304(A) IPC directing to run both the sentences concurrently. 2. I have heard Mr. J.M. Choudhury, learned Senior Counsel appearing for the Petitioner and Mr. P.C. Gayan, learned Addl. Public Prosecutor, Assam, for the State. 3. The prosecution case, which originated on the basis of the FIR lodged by one Mojibor Rahman Mandal with the Officer-in-charge Goalpara Police Station on 14.09.96, inter alia, is that on that day at about 4.30 P.M. one Ashadur Rahman @ Mintu son of Prof. Mojibur Rahman of Hadayatpur, Goalpara town came out from his house and arrived Durgamandir Bazar. While he went south to north by the left side of the road, an oil tanker bearing registration No. AMA-399 came from Agia side towards Goalpara at a very high speed and due to rash and negligent driving of the vehicle by the driver, dashed the said Ashadur Rahman in front of shop of one Bith Karan Sarma by the side of the road and caused his death. Hence, the informant prayed for necessary police investigation into the occurrence. The informant also gave description of the deceased, which shows that the deceased was a boy of 18/19 years of age. On receipt of the aforesaid FIR the police registered a case under Section 279/304(A) IPC and the G.R. Case No. 742/96 was registered. Upon appearance of the accused before the learned trial Court the substance of the acquisitions under Section 279/304(A)IPC were explained to him, to which he pleaded not guilty and claimed to be tried. On receipt of the aforesaid FIR the police registered a case under Section 279/304(A) IPC and the G.R. Case No. 742/96 was registered. Upon appearance of the accused before the learned trial Court the substance of the acquisitions under Section 279/304(A)IPC were explained to him, to which he pleaded not guilty and claimed to be tried. During the course of trial as many as 6 witnesses including the Investigating Officer and the Medical Officer, who carried out the post mortem examination of the deceased and also the mechanic who examined the vehicle after the accident, were examined. The defence examined none and took a plea of total denial. At the end of the trial upon consideration of the materials and evidence on record, the learned Chief Judicial Magistrate, Goalpara vide judgment and order dated passed in G.R. Case No. 742/96 convicted the Petitioner under Section 279/304(A) IPC and sentenced him in the manner aforesaid. Against the aforesaid judgment and order, the Petitioner filed Criminal Appeal No. 20/97 before the learned Sessions Judge, Goalpara, which was dismissed on upholding the conviction and sentence passed by the learned trial Court. Hence, the present revision petition. 4. Mr. J.M. Choudhury, learned Senior Counsel appearing for the Petitioner has submitted that in the instant case the prosecution having failed to prove the vital ingredients of rash or negligent driving, the impugned conviction and sentence is bad in law and is liable to be set aside. Learned Counsel has also submitted that there is no iota of evidence regarding rashness in driving and the prosecution having failed to prove the culpable negligence of the Petitioner while causing the accident, the impugned conviction and sentence is not sustainable. 5. Refuting to the aforesaid submissions, Mr. P.C. Gayan, learned Addl. Public Prosecutor has submitted that the findings of rash or negligent driving being a finding of fact and both the Courts below having concurrently arrived at such a finding, the same is not liable to be disturbed by this Court in exercise of its revisional jurisdiction. 5. Refuting to the aforesaid submissions, Mr. P.C. Gayan, learned Addl. Public Prosecutor has submitted that the findings of rash or negligent driving being a finding of fact and both the Courts below having concurrently arrived at such a finding, the same is not liable to be disturbed by this Court in exercise of its revisional jurisdiction. It is further submitted that the evidence on record disclose that the accident took place in the Katcha portion of the National Highway and had there been no rash or negligent driving, the vehicle would not have come to the Katcha portion of the road and that the prosecution having been able to prove the guilt of the accused Petitioner beyond reasonable doubt, the decision of the learned Courts below are not liable to be altered. 6. I have carefully considered the rival submissions of the learned Counsel appearing for the respective parties. I have also perused the connected materials and evidence available on record including the judgment passed by the learned Courts below. In order to appreciate the submissions made by the learned Counsel for the parties, I have scrutinized the evidence on record not for re-assessing the same, but for ascertaining whether there is any perversity or impropriety in the findings arrived at by the learned Courts below on the basis of the proved facts. 7. Out of six prosecution witnesses, ocular evidence were adduced by P.W. 1, P.W. 2 and P.W. 3. P.W. 1, Mojibor Rahman is the complainant, who lodged the FIR. He deposed, inter alia, that on 14.09.96 while he was in his house, at about 4.30 P.M. he got an information that there was an accident in front of Durgamandir. He went to the place of occurrence and found that the victim was lying on the road and the people of the locality confined the vehicle involved in the accident. He has stated that he lodged the FIR (Ext. 1) and the Ext. 1(1) is his signature. This witness is not an eye witness and he was not cross-examined. 8. He went to the place of occurrence and found that the victim was lying on the road and the people of the locality confined the vehicle involved in the accident. He has stated that he lodged the FIR (Ext. 1) and the Ext. 1(1) is his signature. This witness is not an eye witness and he was not cross-examined. 8. P.W. 2 Abdul Samad, in his deposition stated, inter alia, that on the date of occurrence at about 4.30 P.M. he was standing in front of the shop of his elder brother near Durgamandir and at that time a truck carrying coal went forwards Agia from Goalpara side and a oil tanker was coming with a very high speed from Agia side. At that time, a boy named Asad was moving towards Goalpara side through the Kutcha portion of the road when the bumper of the oil tanker hit the boy who fell down and the front wheel of the tanker ran over the boy. The boy died on the spot. He further stated that one Kirti Singh drove the offending vehicle bearing No. AMA-399. The police took the dead body. This witness is an eyewitness who has not deposed anything regarding the rashness and negligence of the driver, except speaking about high speed. 9. Another witness, P.W. 3 Abdul Kalam deposed inter alia, that on the day of occurrence he was busy inside his shop and on hearing the noise regarding hitting of a boy by a truck he came to the place and found that the truck crossed through the boy. The boy died on the spot and the vehicle was a oil tanker. This witness also is not an eyewitness and he has not deposed regarding the rashness or negligence in driving. 10. P.W. 4, Dr. Shyamalendu Das, did the postmortem of the deceased. This witness stated, inter alia, that he performed the post mortem examination of one Ashadur Rahman son of Mojibor Rahman on 14.09.96 and found a tyre mark over the chest wall and the skull is crushed completely. He also found haemorrhage under the membrane and the brain matter completely destroyed. There was excessive bleeding under the membrane. In his opinion, the death was due to shock and haemorrhage as a result of the injury sustained this witness was not cross examined at all by the defence. 11. He also found haemorrhage under the membrane and the brain matter completely destroyed. There was excessive bleeding under the membrane. In his opinion, the death was due to shock and haemorrhage as a result of the injury sustained this witness was not cross examined at all by the defence. 11. P.W. 5, Bikash Ghose is the mechanic who examined the offending vehicle bearing Registration No. AMA-399 and P.W. 6 is the Police Officer who investigated the matter. In his examination under Section 313 Code of Criminal Procedure the accused Petitioner admitted that he was driving the oil tanker. There is a noticeable discrepancy in the examination of the accused under Section 313 Code of Criminal Procedure inasmuch as the learned trial Court put the date of occurrence on 15.09.96 although in fact the accident occurred on 14.09.96. There is further vital discrepancy in putting the statement of P.W. 2 who did not state in his deposition that the vehicle came down to the katcha portion of the road. These discrepancies are of vital nature. 12. In the light of the aforesaid evidence of prosecution witnesses we are to see whether the prosecution has failed to discharge its burden to prove the offence under Section 279/304(A) IPC beyond reasonable doubt or not. In order to find a person guilty under Section 279 IPC prosecution is to establish that the accused was driving the vehicle in a public way and that he was driving in a rash or negligent manner. Similarly, to constitute offence under Section 304(A) IPC, the prosecution is to establish the rash or negligent act of the accused which was responsible in resulting to death of the victim and such act of rash or negligence do not amount to culpable homicide. Thus, in order to constitute either of these two offences, the proof of rashness or negligence is essential. The term "rash" and "negligence" has not been defined in the code and both the words are not synonymous. Rashness is an act done in the hope that no untoward consequence will ensue though the person is aware of the likelihood of such consequence. On the other hand, negligence is acting with the awareness that harmful or mischievous consequences will follow. Rashness is an act done in the hope that no untoward consequence will ensue though the person is aware of the likelihood of such consequence. On the other hand, negligence is acting with the awareness that harmful or mischievous consequences will follow. If a person does an act with utter indifference of the consequence of which he may be conscious, which he hoped may not take place, he is said to be rash. Negligence is failure to take that precaution, which a reasonable and prudent person is expected to take. Even if an act is found to be negligent, it may not be construed to mean as rash in a given case. Culpable rashness is acting with consciousness that mischievous consequences are likely to follow although the accused hoped, even though he hoped sincerely, that consequences might not follow. Criminality lies in not taking the precaution to prevent the happening of the consequences in the hope that they may not happen. On the other hand, negligence is an act done without doing something, which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do, or an act, which a prudent or reasonable man would not do in the circumstances attending it. The Apex Court in the case of Bhalchandra v. State of Maharashtra, reported in AIR 1968 SC 1319 , approving what was said by Straight J in Empress of India v. Indu Beg (1881) ILR 3 ALL 776 held that criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. 13. In order to convict a person under Section 279 IPC the following ingredients are to be proved- (a) that the accused was driving the vehicle; (b) that the accused was driving the vehicle on a public way, (c) that the accused was driving the vehicle rashly or negligently and (d) that it endangered human life or to likely to cause hurt or injury to any other person. Similarly, in order to convict a person under Section 304(A) IPC the prosecution is to prove- (a) the death of the person in question; (b) that the accused caused the death; (c) that the accused caused the death by his rash or negligent act, although it did not amount to culpable homicide, In the present case, the evidence of the only eyewitness to the occurrence namely the P.W. 2 has stated that the offending vehicle was moving very fast and hit the deceased by its bumper while he was in the Kutcha portion of the road. It is also evident that during that time a coal carrying truck crossed the place of occurrence from the Goalpara side. There is no iota of evidence regarding rashness or culpable negligence of the driver of the truck either in the statement of the eye witness or other witnesses. Probably, the prosecution sought to apply the maxim of Resipsa loquitur i.e. thing speaks for itself, on its failure to prove the aforesaid vital ingredients of the offence. 14. Mr. Choudhury, in support of his argument, has relied upon the decision rendered by this Court in Ranjit Nath v. State of Assam reported in 1997 (3) GLT 126. In para 11 of the said judgment it is held as follows: 11. There is a patent error of law regarding conviction Under Section 304 IPC and this error relates to presumptions deducible from the doctrine of "Res Ipsa loquitur" although reference has been made to Sayed Akbar v. State of Karnataka AIR 1979 SC 1848 but its ratio has been totally misunderstood by both the trial Court as well as learned Sessions Judge as can be seen from the following passage extracted from his judgment. In the impugned judgment the learned trial Magistrate has applied the principles of res ipsa loquitur. In the Case of Syed Akbar v. State of Karnataka AIR 1979 SC 1848 , the Hon'ble Supreme Court held: Under the Evidence Act, the general Rule is that the burden of proving negligence as cause of the accident lies on the party who alleges it. But that party can take advantage of presumptions which may be available to him to lighten that burden. Presumption are of three types: (i) Permissive presumption or presumptions of facts; (ii) Compelling presumptions or presumptions of the law (rebuttable): (iii) Irrebuttable presumptions of law or conclusive proof. But that party can take advantage of presumptions which may be available to him to lighten that burden. Presumption are of three types: (i) Permissive presumption or presumptions of facts; (ii) Compelling presumptions or presumptions of the law (rebuttable): (iii) Irrebuttable presumptions of law or conclusive proof. On consideration of the evidence on record, I find that the prosecution has discharged their burden of proving that the accused was negligent and the accident occurred by his negligence. The accused has not adduced any rebutting evidence or offered any reasonable explanation. 15. In the light of the above discussions, on scrutiny of the materials and evidence on record, it is found that in the instant case none of the prosecution witness have deposed about rashness or negligence of the accused/Petitioner in driving the offending vehicle on the fateful day. P.W. 2 who is the only eyewitness has stated only about the high speed of the vehicle, but nothing about rashness or negligence. The trial Court thus came to a finding different from the proved facts and illegally convicted the accused/Petitioner. The learned Appellate Court also failed to consider that the prosecution has failed to prove and establish beyond reasonable doubt the vital ingredients regarding rashness or negligence of the Petitioner in driving the offending vehicle and illegally and improperly upheld the findings of the learned trial Court dismissing the appeal filed by the Petitioner. 16. In the above circumstances, the impugned conviction of the Petitioner and the sentences imposed upon are not sustainable and the same is accordingly set aside. The revision petition is thus allowed. The Petitioner is acquitted of the charges and is discharged from the bail bond. Petition allowed.