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2009 DIGILAW 557 (GAU)

Md. Hiran Mia v. State of Tripura

2009-08-11

UTPALENDU BIKAS SAHA

body2009
ORDER U.B. Saha, J. 1. The petitioner has filed this revision petition under Section 397 read with Section 401, Cr.P.C. for quashing/setting aside the judgment and order dated 15-5-2003 passed by the learned Additional Sessions Judge, West Tripura District, Khowai in Cri. Appl. No. 1(1) 03 affirming the judgment dated 3-1-2003 passed by the learned Sub-Divisional Judicial Magistrate, Khowai in G.R. Case No. 150 of 2001 whereby and whereunder the petitioner was convicted under Section 279, I.P.C. to suffer S.I. for six months and to pay a fine of Rs. 1000/-, in default of payment to suffer S.I. for one month and further convicted under Section 337, I.P.C. to suffer S.I. for six months and to pay a fine of Rs. 500/-, in default of payment to suffer S.I. for 15 days. Both the sentences would run consecutively. 2. Heard Mr. B. Das, learned senior Counsel for the petitioner and Mr. A. Ghosh, learned Additional P.P. for the State. 3. The prosecution story on the basis of which the trial Court convicted the petitioner and the appellate Court upheld the same is as follows: On 6-10-2001 at about 15.00 hours, while the daughter of the complainant, Sanjoy Deb, (PW 1) was proceeding towards the house of her private tutor, one commander jeep bearing registration No. TR-01-2575 which was driven by the accused petitioner, dashed. her on Agartala-Khowai road in front of the house of one Gouranga Deb. In the result, the daughter of the complainant sustained injuries and was immediately shifted to Kalyanpur hospital where she was treated up to 13-10-2001. As the said accident occurred due to rash and negligent driving of the accused petitioner, P.W. 1 lodged complaint with the Kalyanpur Police Station, on the basis of which, Kalyanpur P.S. case No. 37 of 2001 was registered under Sections 279, and 337, I.P.C. Thereafter, police started investigation and on completion of the investigation, charge sheet was filed against, accused petitioner for commission of offence; punishable under Sections 279/337, I.P.C. 4. On receipt of the charge sheet, learned SDJM took cognizance of the offence and examined the accused petitioner under Section 251, Cr.P.C. to which he pleaded not guilty and claimed to be tried. 5. In support of its case, the prosecution examined as many as seven witnesses, but the defence adduced no evidence in support, of his case. 6. On receipt of the charge sheet, learned SDJM took cognizance of the offence and examined the accused petitioner under Section 251, Cr.P.C. to which he pleaded not guilty and claimed to be tried. 5. In support of its case, the prosecution examined as many as seven witnesses, but the defence adduced no evidence in support, of his case. 6. At the conclusion of the trials the learned SDJM found the accused petitioner guilty for commission of offence under Sections 279/337 of the I.P.C. and accordingly convicted and sentenced the accused petitioner as noted above. 7. Having felt aggrieved by the judgment of the trial Court dated 3-1-2003, the accused petitioner preferred an appeal before the learned Additional Sessions Judge, West Tripura, Khowai. Upon hearing the learned Counsel for the parties, the appellate Court maintained the order of conviction and sentence passed by the learned trial Court in his judgment dated 15-5-2003. 8. Being aggrieved by and dissatisfied with the judgment of the appellate Court, the accused petitioner preferred the instant revision petition. 9. Mr. B. Das, learned senior Counsel would contend that though the accident Is admitted, there is no material available from the evidence of the prosecution witnesses, that the vehicle was driven at a high speed and in rash and negligent manner and. due to such negligence of the accused petitioner, the alleged accident occurred and the daughter of P.W. 1 was hurt and injured. Consequently, she was hospitalized. The, learned senior Counsel also contended that the negligence is to be specifically proved by the prosecution for establishing its case as the negligence means breach of duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate conduct of human affairs would do or the doing of something which a prudent and reasonable man would not do. In the instant case, it is totally absent from the evidence of the prosecution witnesses that the accused petitioner failed to do something which was required to be done by him. Not only that, he also urges that mere accident is not enough to prove the offence under Section 279, I.P.C. read with Section 337, I.P.C. The prosecution is to establish, firstly, the rash and negligent driving and, secondly, the negligent driving of the driver caused hurt to any person which is endanger to human life or the personal safety of others. Here in this case, it is evident from the evidence of P.W. 7 Dr. Ramendra Kr. Barman who examined the victim Supama Deb, the daughter of P.W. 1, at Kalyanpur Rural Hospital that there were three injuries. Injury No. 1 was incised while the rest two injuries were an abrasion. AH the injuries were simple in nature. The learned senior Counsel also contends that this witness also stated what was the cause of such injury. He further contends that unless the alleged hurt or injuries was the result of the accident in question, no case can be made out under Section 279/337, I.P.C. However, ultimately, he submits that if the Court is of opinion that the evidence available on record is sufficient for conviction, then the Court may, consider whether for the same act of causing, hurt due to rash and negligent driving, the order of conviction and sentence can be, passed both under Sections 279/337, I.P.C. as recorded in the judgment of the learned, SDJM which was upheld by the learned (Additional Sessions Judge as an appellate Court. 10. Mr. A. Ghosh, learned additional P.P. submits that there are full of evidence regarding the injuries caused to the daughter of P.W. 1, particularly, which have been witnessed by P.Ws. 2, 3, 4 and P.W. 6 and the P.W. 3, Bijoy Deb in his statement stated that while he was proceeding through Teliamura Khowai Road to his land, at that time, a commander jeep coming from the side of Teliamura at a high speed was about to dash him and he somehow managed to escape by jumping, but a little ahead, the said vehicle dashed Suparna, his brother's daughter who was going to the private tutor. Seeing the same, he raised alarm and in the meantime, some persons came forward and stopped the said vehicle and the vehicle was compelled to return to the spot. He also relied upon the evidence of P.W. 6 Manik Das, who stated in his deposition that after hearing alarm of the accident, he came on the road and found one girl in injured condition lying on the road and was being nursed by one Smt. Bina Ghosh. He also saw that one commander jeep running away from the spot. He along with others requested the driver to carry the victim to the hospital which ultimately he agreed to. He also saw that one commander jeep running away from the spot. He along with others requested the driver to carry the victim to the hospital which ultimately he agreed to. Therefore, it cannot be said that the prosecution failed to establish its case. According to Mr. Ghosh, the learned trial Court rightly convicted the accused petitioner and the appellate Court also upheld the same which does not call for interference in exercising the revisional jurisdiction of this Court. However, ultimately, he left the matter of sentence to the Court. 11. This Court has also noticed the provisions of Section 279 as well as 337, I.P.C. while considering the order of sentence. Sections 279 and 337, I.P.C. are reproduced hereunder as that would be profitable for reaching to the proper conclusion regarding sentence. 279. Rash driving or riding on a public way.--Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. 337. Causing hurt by act endangering life or personal safety of others--Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both. 12. Having heard the learned Counsel for the parties and on going through the judgment of the Courts below as well as on review of the evidences of the prosecution witnesses, this Court is of considered opinion that the prosecution has established its case beyond reasonable doubt. The learned trial Court has rightly convicted the accused under Section 279, I.P.C. 13. But the question remains whether a Court can convict a person under Section 279 and 337, I.P.C. for commission of the same act of offence and accordingly pass sentence under both the Sections. The learned trial Court has rightly convicted the accused under Section 279, I.P.C. 13. But the question remains whether a Court can convict a person under Section 279 and 337, I.P.C. for commission of the same act of offence and accordingly pass sentence under both the Sections. According to this Court, as the offence having been outcome of the same act, the Court should punish the accused for one offence and at the same time, while passing the order of sentence, the Court should also consider that when the sentence prescribed under Section 279, I.P.C. being higher it is a grave offence than the offence prescribed under Section 337, I.P.C. the accused could be punished under Section 279, I.P.C. only. 14. Here in the instant case, the Courts below convicted the accused petitioner both under Section279 as well as 337, I.P.C. and accordingly passed order of sentence under the aforesaid Sections as stated supra. Not only that, the order of sentence passed by the trial Court is, according to this Court, the maximum. The learned Trial Court also in its judgment nowhere stated regarding the nature of injuries caused to the victim Suparna Deb and that he passed the order of sentence on both the Sections which would run consecutively i.e. to suffer S.I. for six months with a fine of Rs. 1000/- convicting the accused petitioner under Section 279, I.P.C. and also to suffer S.I. for six months with a fine of Rs. 500/- convicting the accused petitioner under Section 337, I.P.C. 15. As this Court noted earlier that even if the accused is convicted for offence under Sections279and 337, I.P.C. the offences having been outcome of the same act, he could be punished for one offence only and that is under Section 279, I.P.C. as sentence under Section 279, I.P.C. being higher. Therefore, this Court while maintaining the order of conviction under Section 279, I.P.C. the order of conviction under Section 337, I.P.C. is set aside, passed by the trial Court and affirmed by the appellate Court. As aforementioned, that the quantum of sentence imposed by the trial Court for commission of offence under Section 279, I.P.C. is the maximum, this Court is of the opinion that it would meet the ends of justice if the sentence is reduced to pay a fine of Rs. As aforementioned, that the quantum of sentence imposed by the trial Court for commission of offence under Section 279, I.P.C. is the maximum, this Court is of the opinion that it would meet the ends of justice if the sentence is reduced to pay a fine of Rs. 1000/- within a period of two months from today, in default of payment of the fine money, the judgment of the trial Court affirmed by the appellate Court shall stand operative and the trial Court shall take necessary step to re-arrest the accused petitioner to undergo the original sentence. The fine money, if realized, the same shall be paid to the P.W. 1, the complainant-father of the victim girl who in turn would pay the said amount to his daughter Suparna. 16. In the result, the petition is partly allowed to the extent indicated above.