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2010 DIGILAW 939 (GAU)

Nilamoni Hazarika v. State of Assam

2010-12-16

I.A.ANSARI

body2010
1. Having found the accused-petitioner herein guilty of the offence under section 279, IPC in GR Case No.687/2007, the learned Chief Judicial Magistrate, Jorhat, convicted the accused-petitioner accordingly and sentenced him to suffer rigorous imprisonment for three months and pay fine of Rs. 1,000 and, in default of payment of fine, undergo simple imprisonment for 15 days. Aggrieved by his conviction and the sentence, passed against him, the petitioner preferred an appeal, which gave rise to Criminal Appeal No.13/2010. By judgment and order, dated 20.8.2010, the learned Sessions Judge, Jorhat, has, having upheld the conviction of the accused and the sentence passed against him, dismissed the appeal accordingly. Against his conviction and the sentence, passed against him, the petitioner has impugned the same in this revision. 2. I have heard Mr. D. Talukdar, learned counsel, for the accused-petitioner, and Mr. V.S. Singh, learned Additional Public Prosecutor, Assam. 3. The case of the prosecution, as unfolded at the trial, may, in brief, be described, thus : On 13.6.2007, at about 7.30 p.m., while the informant, Mr. A. Moatoshi Aao of Mokokchung, Nagaland, was proceeding from Dimapur towards Tuli, in his official vehicle, bearing Registration No.NL-10/3966, one TATA Mobile Vehicle, bearing Registration No.AS-03/3044, which was coming from opposite direction, driver by the accused-petitioner, turned, suddenly, on the right side at Malow Chariali, Jorhat. Consequently, the vehicle, driven by the informant, dashed against the vehicle of the accused-petitioner causing thereby injuries to Ms. Thejunla, an occupant of the informant's vehicle. The informant's vehicle too was badly damaged. The informant accordingly lodged an FIR, which gave rise to Jorhat Police Station Case No. 354/2007 under sections 279/338/427, IPC. On completion of investigation, a charge sheet was accordingly laid against the accused-petitioner. 4. During trial, particulars of offences, under sections 279/338/427, IPC, were explained to the accused-petitioner, who pleaded not guilty thereto. 5. In support of their case, prosecution examined six witnesses including the Medical Officer. The accused-petitioner was, then, examined under section 313, Cr.PC. In his examination aforementioned, the accused-petitioner denied that he had committed the offences alleged to have been committed by him, the case of the defence being that the accused-petitioner had, indeed, driven the vehicle, in question, but the occurrence was an accident, which was not due to the fault of the accused- petitioner; rather, the accident was due to the fault of the informant, whose vehicle got damaged. 6. 6. Having, however, found the accused-petitioner guilty of the offence under section 279, IPC only, the learned trial court has convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction, and the sentence passed against him, the accused-petitioner preferred an appeal, which has also been dismissed by judgment and order, dated 20.8.2010, passed by the Sessions Judge, Jorhat, in Criminal Appeal No. 13/2010. Hence, thus, revision has been filed by the convicted person challenging his conviction and also the sentence passed against him. 7. While considering the present revision, it needs to be noted that it is PW5, who is both informant and the driver of the vehicle, which had dashed against the vehicle of the accused-petitioner. According to the evidence of PW5, on 13.6.2007, at about 7.30 p.m., while he was driving the official vehicle of the Additional Deputy Commissioner, Tuli, and proceeding from" Dimapur towards Tuli, a TATA mobile vehicle, suddenly, turned, at Malow Ali Chariali, towards the right side of the road and in consequence thereof, the informant's vehicle dashed against the said TATA mobile vehicle and in consequence whereof, the said accident took place, Ms. Thejunla, who was traveling in his (informant's) vehicle, sustained injuries and he (PW5), therefore, filed an FIR. 8. In his cross-examination, PW5 has denied the suggestion of the defence that the accused-petitioner, while driving his vehicle, gave signal for moving towards the right side of the road, but PW5 did not notice the signal and dashed against the vehicle of the accused-petitioner and, hence, the accident had not taken place due to the fault of the accused-petitioner. The suggestion, so offered, shows that, while the vehicle of the informant was coming from the opposite direction, the accused-petitioner turned his vehicle to the right side of the highway and, as a result thereof, the informant's vehicle came from the opposite direction and dashed against the vehicle of the accused-petitioner causing thereby not only injury to one of the occupants, but damaging the informant's vehicle too. In fact, the learned trial court has rightly pointed out that a driver, who wants to go to his right side of a busy road, like National Highway, has the duty to wait and see that the vehicles, coming from the opposite direction, have passed and it is safe for him to turn his vehicle to his right side, because, ordinarily, a vehicle cannot take right turn, particularly, on the highway. It needs to be borne in mind that a driver cannot, by merely giving signal, turn his vehicle to his right side of a busy road or a highway; whereas the accused-petitioner has exactly done the same. 9. It has been pointed out by Mr. Talukdar, learned counsel for the accused-petitioner, that PW5, who is the informant, admitted that he was driving his vehicle at the speed of 80 km per hour. It is because of the high speed of the informant's vehicle that the accident according to Mr. Talukdar, had taken place. There can be no doubt that PW5 was driving his vehicle at high speed. This does not, however, absolve the accused-petitioner from being responsible for the damage caused to the informant's vehicle and the injury, which was, admittedly, sustained by one of the occupants of the vehicle. There can be no doubt that the informant's vehicle dashed against the vehicle of the accused-petitioner not because the informant was driving his vehicle at high speed, but because of the fact that the accused-petitioner, suddenly, turned his vehicle to his right side of the highway and the informant came from the opposite direction and dashed against the vehicle of the accused-petitioner. It is in the evidence of PW5 that while he was driving the vehicle of the Additional Deputy Commissioner, Nagaland, a TATA mobile coming from opposite direction, suddenly, took right turn and his vehicle dashed against the said TATA mobile and, as a result thereof, Ms. Thejunla, one of the occupants, sustained injury and the vehicle was also badly damaged, whereupon he lodged an FIR at Jorhat Police Station. The evidence, so given by PW5, has remained wholly unshaken. There is no reason, therefore, to doubt the veracity of the evidence of PW5. 10. Thejunla, one of the occupants, sustained injury and the vehicle was also badly damaged, whereupon he lodged an FIR at Jorhat Police Station. The evidence, so given by PW5, has remained wholly unshaken. There is no reason, therefore, to doubt the veracity of the evidence of PW5. 10. Coupled with the above, the learned trial court has correctly pointed out that though the said injured was not examined, the fact remains that the evidence of the doctor (PW4) shows that he examined Ms. Thejunla at Jorhat Civil Hospital and found as follows : (i) Abrasion over right elbow, (ii) Tenderness and swelling over both the knees, (iii) Tenderness and swelling over left frontal region. 11. The learned trial court has correctly pointed out that the defence did not dispute the evidence given by the doctor that Ms. Thejunla had sustained injuries and also did not adduce any evidence to sustain their suggestion that she had sustained injuries by fall. A suggestion, by itself, is not evidence. A suggestion has no meaning unless the suggestion offered is proved or is, at least, probabilised by either eliciting necessary evidence in support of such suggestion, by cross-examining the opponent's witness or by giving evidence by the party, which offers the suggestion to the opponent's witness. [See S. Nalaya v. State of Assam, 2004 (2) GLJ 133]. 12. At any rate, as the prosecution did not, in the present case, examine the injured woman, the learned trial court refrained from holding the accused guilty of causing hurt to Ms. Thejunla. Against this finding, there is no appeal by the State. This revision, therefore, requires this court to determine if, in the face of the evidence on record and the law relevant thereto, the accused-petitioner has been correctly held to be guilty of the offence under section 279 IPC? 13. While answering the question posed above, it may be noted that when a person fails to take, while doing an act, precaution, which a reasonable and prudent person is expected to take or ought to take, it amounts to negligence. When a person, conscious of the fact that his action may cause harm or damage, takes the action with utter indifference to the consequences, which may ensue from his such act, he is said to have done the act rashly. When a person, conscious of the fact that his action may cause harm or damage, takes the action with utter indifference to the consequences, which may ensue from his such act, he is said to have done the act rashly. In other words, when a person fails to take, while doing an act, such precaution, which a reasonable and prudent person is expected to take or ought to take, before doing the act, such doing of the act would amount to negligence. On the other hand, when a person, who is aware of the risk, which his action involves, does the act with utter indifference to the consequences, which his action is likely to entail, such an act is a rash act. 14. Describing as to what is a rash and negligent act, this court, in Haider Islam v. State of Assam, 2007 (1) GLT 428 it was observed as under: "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 knowing the risk involved. If the accused-petitioner had not seen PW1 being in the process of disembarking from the bus, his (accused-petitioner) 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." 15. In either way, therefore, the act of the accused-petitioner amounts to an offence under section 279, IPC." 15. In the case at hand, it was inherently dangerbus to take right turn on the high way, when a vehicle was coming driven from the opposite direction and unless he (accused-petitioner) was careful, the vehicle coming from the opposite direction was likely to dash against his (accused-petitioner's) vehicle; yet the accused-petitioner, with utter indifference to the consequences, which were likely to ensue from his own act, suddenly, took right turn and it was because of this rash act on the part of the accused-petitioner that the vehicle, driven by PW5, dashed against the accused-petitioner's vehicle causing thereby damage to the vehicles and injuries to one of the occupants of the vehicle, which PW5 was driving. 16. It is, now, time to note that section 279 punishes a person, who drives his vehicle or rides, on any public way in a manner so rash and negligent as to endanger human life or to be likely to cause hurt or injury to any other person. The questions, therefore, are as to whether the act of driving of the vehicle by the accused-petitioner was rash or negligent and whether the accused-petitioner's act of driving was so rash or negligent as to endanger human life or was likely to cause hurt or injury to any other person? In the case at hand, since the informant was coming from the opposite direction, there is no impediment in drawing the inference that the accused had noticed the informant's vehicle coming from the opposite direction, he knew that if right turn was taken by him on the highway, there was every reasonable possibility of the vehicle coming from the opposite direction dashing against his own vehicle; yet with utter indifference to the consequences, which were likely to flow from his act of taking right turn on the highway, the accused-petitioner turned his vehicle to his right without having exhibited the time of ensuring that the vehicle, coming from opposite direction, comfortably passes. The act of the accused-petitioner cannot, but be described as rash driving of the vehicle endangering human life. The accused-petitioner cannot, but be held, therefore, to have committed an offence under section 297, IPC. The act of the accused-petitioner cannot, but be described as rash driving of the vehicle endangering human life. The accused-petitioner cannot, but be held, therefore, to have committed an offence under section 297, IPC. In short, because of the fact that the accused-petitioner drove his vehicle on highway in a manner so rash as to endanger human life or when the accused-petitioner's act of driving his vehicle was, in the circumstance aforementioned, likely to cause hurt or injury to any other person, he ought to have been held and he has been rightly held guilty of the offence under section 279, IPC. 17. What crystallizes from the above discussion is that the learned trial court has correctly held the accused guilty, of the offence under section 279, IPC and the learned appellate court has committed no error, legal or factual, in sustaining the conviction of the accused-petitioner. 18. As far as the sentence, passed against the accused-petitioner, is concerned, it becomes, in the face of the materials on record, clear that it is the providence, which saved the occupants of the informant's vehicle or else, the manner in which the accused-petitioner is proved to have driven his vehicle, it could have led to much more serious consequences and might have resulted into death of not only the driver and occupants of the vehicle, which PW5 was driving, but also could pose danger to the life of the accused-petitioner himself. In the circumstances, as indicated hereinbefore, this court does not find that the sentence, passed against the accused-petitioner, is harsh, unreasonable or untenable in law. 19. Because of what have been discussed and pointed out above, this court does not find any merit in this revision. This revision, therefore, fails and the same shall accordingly stand dismissed. The accused-petitioner is hereby directed to surrender, forthwith, in the Court of learned Chief Judicial Magistrate, Jorhat, to suffer the sentence of imprisonment passed against him. 20. With the above observations and directions, this revision shall stand disposed of.