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2010 DIGILAW 639 (CAL)

Anil Kumar Prosad v. STATE OF WEST BENGAL

2010-06-16

ASHIM KUMAR ROY

body2010
JUDGMENT 1. AGGRIEVED by an order of framing charge under Sections 279/304 of the Indian Penal Code, alternatively under Section 304A of the Indian Penal Code in connection with a trial now pending before the Learned District and Sessions Judge, Howrah, the petitioner moved the instant criminal revision. 2. AT the time of hearing of this application the learned advocate of the petitioner vehemently urged that this is a case where a person has been killed being knocked down by a Mini Bus, while it was allegedly running rashly and negligently. According to him on the face of the materials, the framing of charge under Section 304 of the Indian Penal Code is wholly uncalled for. On the other hand, Mr. Swapan Kumar Mullick, the Learned Counsel appearing on behalf of the State produced the Case Diary and in his usual fairness submitted that on the evidentiary materials collected by the police at best a case under Sections 279/304A of the Indian Penal Code has been made out. The prosecution case as it appears from the First Information Report is as follows; "On March 16, 2009 at about 6:30 hours a Mini Bus bearing registration No. WB-19A-3752 while was passing through Arabinda Road, near Jora Mandir rashly and negligently in a high speed knocked down an unknown person from his back and as a result the man died at the spot." 3. NOW, having gone through the 161 statement of the witnesses recorded during the time of investigation who were allegedly present and viewed the alleged incident I find they have also repeated and reiterated the same versions and also according to them the Mini Bus, in question, running in high speed knocked down the boy by hitting him on his back and instantaneously he died. 4. THEREFORE, from the evidentiary materials on record it cannot be said that the accused committed any willful and deliberate act and by such act caused the death of the victim with the knowledge that his such act is likely to cause his death. The only materials that has been appearing against the petitioner is this that he was driving the Mini Bus rashly and negligently in a high speed and in course of such driving hit the victim from his back and thereby caused his death, in such circumstances framing of charge under Section 304 of the Indian Penal Code is not justifiable. The only materials that has been appearing against the petitioner is this that he was driving the Mini Bus rashly and negligently in a high speed and in course of such driving hit the victim from his back and thereby caused his death, in such circumstances framing of charge under Section 304 of the Indian Penal Code is not justifiable. In this connection it would be profitable to refer the following cases viz., State of Gujrat Vs. Hyder Ali Kalubai, reported in AIR 1976 SC 1012 , Naresh Giri Vs. State of M.P., reported in AIR 2007 SC (Supple) 1190, Prabhakaran Vs. State of Kerala, reported in (2009) 1 SCC (Cri) 873, Manish Jalan Vs. State of Karnataka, reported in (2008) 3 SCC (Cri) 456, State Vs. M.D. Yusuf, reported in 2001 Criminal Law Journal 5, Keshub Minder Vs. State of M.P., reported in 1996 SCC (Cri) 1124, State of Rajasthan Vs. Chitramal, reported in (2007) 10 SCC 792 . 5. FOR the reasons stated above, I am of the opinion on the evidentiary materials collected by the police no case punishable under Section 304 of the Indian Penal Code is made out against the petitioner and accordingly the said charge stands quashed and the Trial Court shall now proceed with the trial of the petitioner for offences punishable under Sections 279/304A of the Indian Penal Code. The Trial Court is directed to commence recording of evidence at once and shall make all endeavours to conclude the trial as expeditiously as possible preferably within six months from the date of communicating of this order and shall proceed strictly in terms of Section 309 of the Code of Criminal Procedure. The petitioner is directed to appear in the Court below positively within two weeks from this date with notice to the State and State must take all necessary steps in this regard. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.