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2011 DIGILAW 106 (GAU)

Bajlu Miah v. State of Tripura

2011-02-09

A.C.UPADHYAY

body2011
JUDGMENT A.C. Upadhyay, J. 1. This revision petition is directed against the judgment dated 11.07.2003 passed by the learned Additional District Judge, Court No. 3, Agartala, West Tripura in Criminal Appeal No. 42(3)/2003, confirming the order of conviction and sentences dated 16.06.2001 passed by the learned Judicial Magistrate First Class, Court No. 3, Agartala, West Tripura in G.R. Case No. 776/1997, whereby convicting the present Petitioner under Sections 279/338/427 of IPC. 2. I have heard Mr. H.K. Bhowmik, learned Counsel appearing for the Petitioner and Mr. A. Ghosh, learned Additional P.P. for the State-Respondent. 3. The prosecution case, as stated in the FIR, reveals that on 24.09.1997 at about 5'00 O'clock in the evening the first informant (victim) was going towards Post Office Chowmuhani from Kaman Chowmuhani along the Hariganga Basak Road. On reaching in front of 'Bata Shoe Stores', the first informant was dashed from behind by a Truck bearing No. TRL-3811. Immediately after dashing the complainant, the offending Truck fled away. As a result of the accident, the victim sustained severe injuries on his person and was taken to G.B. Hospital for necessary medical treatment. 4. On receipt of the Ejahar, as stated by the first informant, a case was registered and investigation was launched and on completion of investigation, the Investigating Officer submitted the charge sheet under Sections 279/338/427 of IPC. 5. During trial, the offence alleged against the accused was explained to which the accused-Petitioner pleaded not guilty and claimed to be tried. As many as 9(nine) witnesses were examined by the prosecution, during trial, to bring home the charge levelled against the accused-Petitioner. On conclusion of the trial, the learned trial court convicted the accused-Petitioner as aforesaid. 6. The judgment passed by the learned Trial Court was carried on appeal to the Court of Additional Sessions Judge, Court No. 3, Agartala, West Tripura, which confirmed the judgment passed by the learned Trial Court, giving rise to this revision petition. 7. Learned Counsel for the Petitioner has submitted that he would concentrate his submission in this revision petition only on the sole ground of non-identification of the accused-Petitioner as a driver of the vehicle, which was involved in the accident. Drawing attention of this Court to the evidence on record submitted that only witness P.W.9 apparently indicated the name of the accused-Petitioner as a driver of the vehicle. Drawing attention of this Court to the evidence on record submitted that only witness P.W.9 apparently indicated the name of the accused-Petitioner as a driver of the vehicle. Learned Counsel for the accused Petitioner submits that even if the statement given by the witness is accepted to be true in its entirety, the accused-Petitioner cannot be convicted for the offence alleged against him. Admittedly, except the evidence of P.W.9, who was neither the owner nor was present at the place of occurrence, there is no evidence on record to show that the accused-Petitioner was the driver of the offending vehicle at the relevant point of time. 8. On careful scrutiny of the evidence of P.W.9, it appears that the father of P.W.9, Upendra Debnath, was the owner of the Truck bearing registration No. TRL-3811. In his statement P.W.9 categorically stated that he used to look after the vehicle in the absence of his father. From the evidence of P.W.9 it reveals that the accused-Petitioner Bajlu Miah was their permanent driver. In his cross-examination P.W.9 categorically stated that though the accused-Petitioner was their permanent driver, but he did not see the driver driving the vehicle at the time of occurrence and further confirmed that his father as a owner of the vehicle did not issue any appointment letter to the accused-Petitioner as a driver of his vehicle. 9. Apart from the above statement, to implicate the accused-Petitioner, the Investigating Officer of the case (P.W.8), stated in his deposition that the accused-Petitioner had surrendered in the police station on the next date of occurrence. However, in his cross-examination he denied to have called the accused-Petitioner on a false pretext and also for arresting him in connection with this case. P.W.8 also stated in his cross-examination that he did not seize the driving licence of the accused-Petitioner. 10. Admittedly, the Truck, which met with the accident, was carried two dead bodies at the relevant time. If the Truck was driven by the accused-Petitioner at the relevant point of time, the persons who accompanied the dead bodies in the offending Truck could have clarified the situation or else the relatives of the deceased could have thrown light in the matter. Unfortunately, the person, who engaged the Truck for carrying the dead bodies could have easily thrown light in the prosecution case. Apparently, there is no evidence on record to aforesaid fact. Unfortunately, the person, who engaged the Truck for carrying the dead bodies could have easily thrown light in the prosecution case. Apparently, there is no evidence on record to aforesaid fact. In the absence of the above, it would not be safe to rely on the testimony of a witness, who did not see the accused-Petitioner driving the vehicle at the relevant time. 11. On the other hand, there is apparent risk in believing the plain information given by the owner of the vehicle fixing responsibility on the driver of the vehicle in question without further proof in this regard. It may so happen, if the owner was himself driving the vehicle at the relevant time of the accident and having met with the accident, in order to save himself from the wrath of prosecution, he might have given false information to the police putting the blame on the accused. This situation, which is probable in the facts and circumstances of the case, cannot be ignored. In my considered view the attendant facts and circumstances clearly reveal that complicity of the accused-Petitioner in the commission of offence as a driver of the offending vehicle in the facts and circumstances is absolutely doubtful. 12. In view of the above discussions, it appears that the learned trial Court as well as the appellate Court could not properly appreciate the evidence on records in right perspective and, accordingly, found the accused-Petitioner guilty of offence alleged and subsequently sentenced him as aforesaid. 13. The revision petition filed by the Petitioner is, accordingly, allowed and the judgment dated 11.07.2003 passed by the learned Additional District Judge, Court No. 3, Agartala, West Tripura in Criminal Appeal No. 42(3)/2003, confirming the order of conviction and sentences dated 16.06.2001 passed by the learned Judicial Magistrate First Class, Court No. 3, Agartala, West Tripura in G.R. Case No. 776/1997, is hereby set aside and quashed and the accused-Petitioner is set at liberty forthwith. 14. The bail bond furnished on behalf of the accused-Petitioner, stands discharged. Send down the Lower Court Records. Petition allowed.