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2006 DIGILAW 913 (GAU)

Haider Islam v. State of Assam

2006-09-26

I.A.ANSARI

body2006
JUDGMENT I.A. Ansari, J. 1. By judgment and order, dated 21.6.2002 passed, in GR Case No. 2008/1999, by the Judicial Magistrate, 1st Class, Nagaon, the accused-petitioner stood convicted under Sections 279 and 338 of the Indian Penal Code and sentenced to undergo, for his conviction under Section 279 IPC, rigorous imprisonment for one month and pay fine of Rs. 500/- and in default of payment of fine, suffer rigorous imprisonment for 15 days and also to suffer, for his conviction under Section 338 IPC, rigorous imprisonment for two months and pay fine of Rs. 500/- and in default of payment of fine, suffer rigorous imprisonment for a further period of 15 days, the sentences having been directed to run consecutively. Aggrieved by his conviction and the sentence passed against him, the accused-petitioner preferred an appeal, which gave rise to Criminal Appeal No. 31 (N)/2002. By judgment and order dated 15.11.2002, the learned Additional Sessions Judge, Nagaon, has dismissed the appeal. Dissatisfied with the dismissal of his appeal, the petitioner has impugned the same in the present revision. 2. I have heard Mr. T. Deuri, learned Counsel for the accused-petitioner, and Mr. D. Das, learned Additional Public Prosecutor, Assam. 3. The case of the prosecution, as unfolded of the trial, may, in brief, be described as follows: On 17.10.1999, at about 5 P.M., when one Md. Ali Islam, who was a passenger in a public bus, bearing registration No. AS-02/9047, driven by the accused, was alighting from the bus and had put one of his feel on the ground and the other foot was still on the bus, the accused drove away the bus at high speed. This made Ali Islam lose his balance and when he fell down, the wheels of the bus ran over him causing fracture of his pelvic bones. Some persons, who were present near the place of occurrence, removed the injured to a hospital where he was treated. On being informed about the occurrence, the police visited the place of occurrence. While the injured was still lying at the hospital, an Ejahar was lodged at Jurai Police Station and treating the same as FIR, Jurai Police Station Case No. 305/1999 under Section 279/338 IPC was registered against the driver of the said bus. On completion of investigation, police laid charge sheet against the accused-petitioner under Section 279/338 IPC. 4. While the injured was still lying at the hospital, an Ejahar was lodged at Jurai Police Station and treating the same as FIR, Jurai Police Station Case No. 305/1999 under Section 279/338 IPC was registered against the driver of the said bus. On completion of investigation, police laid charge sheet against the accused-petitioner under Section 279/338 IPC. 4. During trial, when particulars of offences under Sections 279 and 338 IPC were explained to the accused, the accused pleaded not guilty thereto. In support of their case, prosecution examined altogether seven witnesses. The accused was, then, examined under Section 313 Cr.P.C. and in his examination aforementioned, the accused denied that he had driven the vehicle rashly or negligently. No evidence was adduced by the defence. Having found the accused guilty of the offences under Sections 279 and 338 IPC, the learned trial Court convicted him accordingly and passed sentences against him as mentioned hereinabove. As the appeal preferred by the accused proved futile, the accused is before this Court with the help of the present revision. 5. While considering the present revision, what is important to bear in mind is that the fact that PW 1 was a passenger in the said bus, the fact that the wheels of the bus ran over PW 1, the fact that PW 1 sustained fracture of his pelvic bones and that he was treated, at the hospital, for the injuries, so sustained by him, are not undisputed. It is also not in dispute that the accused-petitioner was the one, who was driving the bus, when PW 1 came under the wheels of the bus. It is in the face of these admitted facts that this Court is required to determine if the accused-petitioner committed the offences of which he stands convicted. 6. It is also not in dispute that the accused-petitioner was the one, who was driving the bus, when PW 1 came under the wheels of the bus. It is in the face of these admitted facts that this Court is required to determine if the accused-petitioner committed the offences of which he stands convicted. 6. While ascertaining the correctness or otherwise of the findings of guilt reached against the accused-petitioner, what attracts the eyes prominently is that in his evidence, PW1 has deposed that on the day of the assurance, he ensure from during Bazar to Samdhara Chariali in the said bus and in the process of getting down from the bus, when he had barely kept one of his feet on the ground, the driver drove away the bus with high speed and as a result thereof, he (PW 1) lost his control, fell down from the bus and the wheels of the bus ran over him. Though PW 1 was cross-examined by the defence, nothing could be elicited by the defence to show that what PW1 had deposed was untrue or false. This apart, what was suggested by the defence to PW1 was that he had himself fallen from the bus and sustained the injuries. It was not the case of the defence, while cross-examining PW 1, that PW 1 had jumped out of the bus, he fell down on the ground and the wheels of the bus ran over him nor was if the case of the defence that PW 1 tried to jump out of the vehicle, while the vehicle was still moving and/or that the vehicle had not been stopped or had not come to half, when PW 1 tried to get out of the vehicle. 7. In the backdrop of the description of the occurrence given by PW1, when I turn to the evidence of PW6, I notice that according to her evidence, the accused is known to her, he used to buy betel nut at the shop of PW6 and, on the day of the occurrence, while PW6 was present in her shop, she saw that while the bus was moving away, a boy jumped out of the bus. It is in the evidence of PW6 that she raised hue and cry, lit a candle and went near the said boy. It is in the evidence of PW6 that she raised hue and cry, lit a candle and went near the said boy. It is also in the evidence of PW6 that people, who had assembled there, took away the said boy. The further evidence of PW6 is that the vehicle was being driven at a low speed. A cursory glance at the evidence of PW6 indicates that according to her, the injuries sustained by PW1 was on account of his own fault, for, PW1 had jumped out of the bus and fallen. 8. From a combined reading of the evidence of PW 1 and 6, what clearly transpires is that while PW1 asserts that he (PW1) had fallen on the ground as a result of rash or negligent driving of the bus by the accused, PW6 maintains that the accused was not at fault at all, rather, PW 1 had jumped out of the bus and fallen on the ground. When the prosecution presents two inconsistent and contradictory version of the occurrence, a trial Court cannot take the easy rule of discarding the entire case of the prosecution on the ground that the two versions of the occurrence presented by two different witnesses are contradictory. In a case of present nature, duty it is of the trial Court to scrutinise the evidence on record carefully and minutely and try to siff the truth from the admixture of untruth or half-truth. It is only when the trial Court is not in a position to say as to which one of the two versions of the occurrence is true that the trial Court can acquit an accused or accord behalf of doubt to the accused or hold the accused not guilty of the act, which he is alleged to have done or omitted to have done. 9. In the case at hand, therefore, incumbent it was, on the part of the learned trial Court, to determine as to which one of the two versions of the occurrence was true. While considering the question as to whether the evidence given by PW 1 can be relied upon, it is noteworthy that the description of the occurrence given by PW1, as pointed out hereinabove, remained unshaken, while he was under cross examination by the defence. While considering the question as to whether the evidence given by PW 1 can be relied upon, it is noteworthy that the description of the occurrence given by PW1, as pointed out hereinabove, remained unshaken, while he was under cross examination by the defence. Even after PW6.had been cross-examined by the defence, the defence did not, at any stage, pray for recalling PW1 for his further cross-examination in the light of the evidence of PW6. As PW1 was the injured, his evidence cannot be discarded unless the Court is not in a position to say as to whether the description of the occurrence given by PW1 is true or false. Having concluded that so far as PW1 is concerned, the version of the occurrence remained unshaken in his cross-examination, when I revert to the evidence of PW6, what I find impossible to ignore is that the accused was known to PW6 as the accused was one of her customers. In the backdrop of this fact, when one minutely scrutinizes the evidence of PW6, what emerges from her evidence is that according to her, after, she had seen the boy (PW1) jumping out of the bus, she lit a candle and went near the place, where PW 1 had fallen and run over by the wheels of the bus. The fact that PW6 had to light the candle and carry the same to the place, where PW 1 was fallen, is indicative of the fact that the place, where PW 1 had fallen, was a place, which was dark. In such circumstances, in the absence of anything showing that there was any light inside the bus, it is impossible to rely on the evidence of PW6, for, in the darkness, she could not have seen PW 1 jumping through the door of the bus. The impression that PW6 cannot be relied upon gets further strengthened from the fact that she concedes that it is not known to her as to whether the said boy had sustained injury or not. Had PW6 really seen the occurrence, she would have known that PW 1, having been run over by the wheels of the bus, had been seriously injured. This apart, there is absolutely no reason for PW 1 to jump out of the said bus, as has been deposed to by PW6. Had PW6 really seen the occurrence, she would have known that PW 1, having been run over by the wheels of the bus, had been seriously injured. This apart, there is absolutely no reason for PW 1 to jump out of the said bus, as has been deposed to by PW6. In the circumstance as indicated hereinabove, the learned trial Court was not unjustified in holding that it was because of rashness or negligence of the accused that PW1 was hurt. When the accused was driving the bus, it was his duty to ensure that he must not drive away the bus until the time the passengers, who were boarding the bus, have entered into the bus and the passengers, who were disembarking from the bus, had alighted from the bus. In view of the fact that when the vehicle was moved away, PW1 was still in the process of getting down from the bus, there can be no escape from the conclusion that the accused-petitioner was rash and negligent in driving away the bus. When a person fails to take precaution, which a reasonable and prudent person is expected to take, it amounts to negligence. When a person acts with utter indifference to the consequences of which he may be conscious of said to be rash. 10. The criminal negligence lies in doing an act without taking such care, which a reasonable man would ordinarily do. In the case at hand, the accused-petitioner drove away the vehicle as pointed out hereinabove, while PW1 was still in the process of disembarking from the bus. If the accused -petitioner had driven away the bus after having seen PW1 alighting from the bus, the conduct of the accused-petitioner would be rash inasmuch as he (accused) drove away the bus with utter indifference to the consequences of his driving away the bus. If the accused-petitioner had not seen PW1 being in the process of disembarking from the bus, his (accused-petitioners) act would amount to negligence, for, the accused-petitioner did not take necessary care, which a prudent man would have, in such circumstances, taken by ensuing that the vehicle is not driven away until all passengers, who wanted to get down from the bus, had alighted from the bus. In either way, therefore, the act of the accused-petitioner amounts to an offence under Section 279 IPC. In either way, therefore, the act of the accused-petitioner amounts to an offence under Section 279 IPC. As the accused caused grievous hurt to PW1 by driving the bus in a negligent manner, his act also constitutes an offence under Section 338 IPC. Considering, therefore, the matter in its entirely, I do not find that the conviction of the accused-petitioner under Sections 279 and/or 338 IPC suffers from any illegality, impropriety and/or incorrectness nor does his conviction warrant this Court's interference. As regards the sentences passed against the accused-petitioner, it is pointed out that the learned Courts below have directed the sentences to run consecutively. Though there may not be any legal bar in directing the sentences to run consequently, this Court is of the view that in the facts and circumstances of the present case, the ends of justice would be served if both the sentences are directed to run concurrently. 11. Because of what have been discussed one pointed out above, this revision partly succeeds. While the conviction of the accused-petitioner and the sentences passed against him are not interfered with, the sentences of imprisonment are hereby directed to run concurrently. 12. The accused-petitioner shall surrender forthwith in the Court of the Chief Judicial Magistrate, Nagaon, to undergo the sentences of imprisonment passed against him. 13. With the above observations and modifications in the sentences, this revision shall stand disposed of. Let the LCR be sent back.