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2010 DIGILAW 796 (GAU)

Ratan Kantikar v. State of Tripura

2010-10-01

P.K.MUSAHARY

body2010
P. K. Musahary, J.;- This revision petition filed under Sections 397/401 of the Code of Criminal Procedure, 1973 is directed against the judgment and order dated 28.02.2003 passed by the learned Sessions Judge, West Tripura, Agartala in Criminal Appeal 32(2)72001 upholding the conviction passed by the learned Judicial Magistrate, 1st class, Agartala with modification in the sentence to suffer imprisonment for six months and a fine of Rs.5,000/- and in default to suffer R. I. for one month under Section 304 A IPC. 2. I have heard Mr. P. Roy Barman, learned counsel for the petitioner and also heard Mr. P. Bhattacherjee along with Mr. A. Ghosh, learned Addl. P. Ps. appearing on behalf of the State of Tripura/Respondent. 3. Briefly stated the prosecution case is that on 15.08.1998, one Commander Jeep bearing Registration No. TR-01-2706 was coming towards Agartala at a very high speed from Bishalgarh side and near to the Gakulnagar tri-junction, in front of the house of one Jogesh Adhikari, dashed the daughter of said Jogesh Adhikari, namely, Madhuri Adhikari aged about 9 years who died on the spot. Cine Sri Rakhal Chandra Saha filed an FIR and after investigation, the I. O. submitted charge sheet against the Ratan Kanti Kar, present petitioner under Sections 279/304A IPC. Accordingly, the learned trial Court framed charge under the aforesaid sections. The convict petitioner pleaded not guilty and claimed to stand trial. 4. The prosecution examined 10 (ten) witnesses to prove its case. No evidence was led by the defence. The petitioner was examined under Section 313 Cr. P. C. He replied all the questions in the negative. After the trial, the learned trial Court vide judgment dated 14.12.2000 convicted the accused petitioner under Section 304A IPC and sentenced him to suffer R.. I. for 2 (two) years. Against the aforesaid conviction and sentence, the accused petitioner preferred an appeal being Criminal Appeal No. 32 (2)/2001 before the learned Sessions Judge, West Tripura, Agartala. The said appeal was disposed of on contest vide judgment dated 28.02.2003 upholding the conviction with modification in the sentence as indicated above. The present petition is preferred against the aforesaid judgment passed by the learned Sessions Judge. 5. Mr. Roy Barman, learned counsel appearing for the petitioner submits that the name of driver of the accident vehicle has not been mentioned in the FIR, nor has the identity of the petitioner been established. The present petition is preferred against the aforesaid judgment passed by the learned Sessions Judge. 5. Mr. Roy Barman, learned counsel appearing for the petitioner submits that the name of driver of the accident vehicle has not been mentioned in the FIR, nor has the identity of the petitioner been established. The prosecution convicted the petitioner only on the basis of suspicion which is not sustainable under the law. The conviction and sentence, in question, are therefore, liable to be set aside and the petitioner is to get the benefit of doubt and he should be acquitted on benefit of doubt. He submits that suspicion, however, grave may be, cannot take the place of proof. The learned Courts below, according to him, should have taken the presumption of innocence in favour of the petitioner for want of sufficient proof against him. On the question of omission to mention in the FIR, the learned counsel for the petitioner relies on the following decisions- (i) Malkhan Singh Vs. State of M. P., reported in (2003) 5 SCC 746 (ii) Krishnan Vs. State, reported in (2003) 7 SCC 56 He also refers to- (iii) Mahabir Vs. State of Delhi, AIR 2008 SC 2343 & (iv) Mangal Debverma Vs. State of Tripura, reported in 2009 (5) GLT 434: (2010) 1 GLJ 560 (DB) On the question of presumption, he refers to- (v) Kali Ram Vs. State of Himachal Pradesh, reported in (1973) 2 SCC 808 . Lastly, on the question of giving benefit of doubt to the accused, he refers to- (vi) State of West Bengal Vs. Orilal Jaiswal & Am, reported in (1994) 1 SCC 73 . 6. I have carefully gone through the records and the evidence adduced by the witnesses of the prosecution. PW-8, Smt. Asha Rani Kar, is the registered owner of the accident vehicle bearing Registration No. TR-01-2706. She deposed that the accused petitioner Ratan Kanti Kar is her son. He possesses a driving licence but she does not remember if she mentioned the name of the driver to the police. She was declared hostile by the prosecution. She was, therefore, cross-examined by the learned Additional Public Prosecutor. In the cross examination, her attention was drawn to her declaration letter addressed to the Officer-in-Charge, Bishalgarh Police Station wherein she mentioned the name of her son Ratan Kanti Kar as the driver of the accident vehicle. She was declared hostile by the prosecution. She was, therefore, cross-examined by the learned Additional Public Prosecutor. In the cross examination, her attention was drawn to her declaration letter addressed to the Officer-in-Charge, Bishalgarh Police Station wherein she mentioned the name of her son Ratan Kanti Kar as the driver of the accident vehicle. The aforesaid letter written by her on 21.08.1998 addressed to the Officer-in-Charge, Bishalgarh Police Station was marked as Exhibit-B. The said PW-8 raised no objection to marking the same as an exhibit and she did not make any statement that it was not written by her. Therefore, the fact of writing the said letter (Exhibit-B) by her stands proved in the eye of law. Undisputedly, PW-8 is the registered owner of the accident vehicle and her son is a driver having a driving licence. For better appreciation, I quote below the said letter (Exh. B) in Bengali rendered into English- "To The O.C. Bishalgarh P. S. West Tripura. Subject:- Prayer for a Declaration. Sir, I beg to state that the Commander Jeep bearing No. TR-01/2706 belongs to me. Unfortunately, my above vehicle met with a tragic accident on 15th August (15/8/96). It took place at 9.35 AM (Approximately). While the vehicle was proceeding from Bishalgarh towards Agartala, a girl child came across in front of the vehicle on the side of the road, the said tragic took place. At that time the driver of Vehicle was Shri Ratan Kanti Kar, S/o Shri Kashi Mohan Kar, Amtoli, West Tripura. Therefore, I shall be grateful to you if my above declaration in connection with above accident is accepted. Dated 2178/98 Yours faithfully, Sd/-Asha Rani Kar W/o Shri Kashi Mohan Kar Ext. 'B' Sd/-Illegible Judicial Magistrate 1st Class, Agartala, West Tripura, 29/4/2000" 7. From the records, it is found that the accident took place on 15.08.1998 at 9.30 A.M. and the FIR was lodged by PW-3 at 10.30 AM of the same day. The accused petitioner surrendered before the police station on 18.08.1998 and the owner of the vehicle PW-8 wrote a letter to the Officer-in-Charge of the Bishalgarh Police Station on 21.08.1998. From the records, it is found that the accident took place on 15.08.1998 at 9.30 A.M. and the FIR was lodged by PW-3 at 10.30 AM of the same day. The accused petitioner surrendered before the police station on 18.08.1998 and the owner of the vehicle PW-8 wrote a letter to the Officer-in-Charge of the Bishalgarh Police Station on 21.08.1998. The police was investigating the matter and was trying to find out who was the driver of the vehicle in question at the time of accident and before getting any clue about the same by the police, the accused petitioner surrendered himself on 18.08.1998 followed by the aforesaid letter dated 21.08.1998 (Exhibit-B) written by his mother. The accused petitioner was not wanted by the police until he surrendered himself. Why he surrendered before the police even before the police wanted him is easily discernible. He knew that police would ultimately find out who was the driver of the accident vehicle and as such, before his arrest, he thought it proper to surrender to show his good conduct. 8. During arguments, Mr. Barman, urges upon this Court that in the FIR the informant did not state that he could recognize the driver. He even did not mention the name of the driver who was driving the accident vehicle. He saw and recognized the accused petitioner for the first time in the dock. According to him, this being the position, the evidence of the informant, PW-3, cannot be relied upon for conviction. This submission is not at all impressive in view of the fact that the accused petitioner surrendered himself before he was wanted by the police and his mother, being owner of the vehicle, addressed a letter to the Officer-in-Charge of the Bishalgarh Police Station on 21.08.1998 (Exhibit-B). It is immaterial to discuss further about the lapse on the part of the informant in mentioning the name of the driver in the FIR and not mentioning that he knew the identity of the driver. 9. There is no manner of doubt in the identity of the driver of the accident vehicle and the same has already stood proved. In my considered view, since the identity of the driver has been proved, the Court is not required to take the aid of presumption under Section 114 of the Evidence Act. 9. There is no manner of doubt in the identity of the driver of the accident vehicle and the same has already stood proved. In my considered view, since the identity of the driver has been proved, the Court is not required to take the aid of presumption under Section 114 of the Evidence Act. The learned Courts below came to the findings and conclusions on the basis of documentary and oral evidence of PW-3 and PW-8 along with the conduct of the convict petitioner and surrendering himself before the police as discussed earlier. In the aforesaid facts and circumstances of the case, I do not find that it is necessary to discuss the case laws referred to by the learned counsel for the petitioner. The principles of law are not in dispute in this case but the same are required to be applied on the facts and circumstances of the particular case. The facts and circumstances of the present case are quite different from those narrated in the above cited cases. 10. In view of the aforesaid discussions and consideration, I have to share the findings and conclusions arrived at by the learned Courts below and I refrain myself from interfering with the impugned judgment and orders passed by the learned Courts below, which are under challenge in this revision petition. 11. This petition accordingly stands dismissed. Bail bond stands cancelled. The convict petitioner is directed to surrender before the Court of learned Judicial Magistrate, 1st Class, Agartala within 10 days from today to serve the sentence failing which, appropriate steps be taken in accordance with law. 12. Send down the LCR to the Court below forthwith.