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2011 DIGILAW 328 (GAU)

Babu Singh v. State of Tripura

2011-04-11

A.C.UPADHYAY

body2011
JUDGMENT Arun Chandra Upadhyay, J. 1. Heard Mr. Somik Deb, learned Counsel for the convict-Petitioner, and Mr. A. Ghosh, learned Additional Public Prosecutor, representing the State Respondent. 2. This criminal revision petition is directed against the appellate judgment and order passed by the learned Additional Sessions Judge, Khowai, West Tripura, in Criminal Appeal No. 2(1) of 2003 dated 13.05.2003, affirming the conviction and sentence dated 02.01.2003, passed by the learned Sub-Divisional Judicial Magistrate, Khowai, West Tripura, in G.R. Case No. 23 of 2001, convicting the accused-Petitioner under Sections 279/338 IPC and sentencing him to pay a fine of Rs. 10,000/- with default stipulation to suffer simple imprisonment for six months. 3. The fact, leading to filing of this petition, discloses that on 29.01.2001 at about 12 noon, Sri Sanjit Kumar Datta, was coming home from Tuichindrai Bazar, riding a bi-cycle. On his way home a truck, bearing registration No. AS-25-B-4616, dashed on him with force, from behind. As a result, the victim sustained grievous injuries on his person. The pedestrians, who were present there at the place of occurrence, took the injured person to Teliamura hospital for treatment. The FIR was lodged alleging therein that the incident had taken place due to rash and negligent driving of the vehicle, in question, however, the name of the driver of the offending vehicle was not indicated in the FIR. 4. On the basis of a complaint, filed by one Moti Lal Datta, alleging commission of offence, punishable under Sections 279/338 IPC, the investigation was launched by the Investigating Officer of Teliamura Police Station. 5. On completion of investigation, charge sheet was submitted by the investigating police officer. During the course of trial, the prosecution examined as many as 9(nine) prosecution witnesses. The accused-Petitioner was examined under Section 313 Code of Criminal Procedure In his statement, under Section 313 Code of Criminal Procedure, the accused-Petitioner pleaded not guilty and took the stand of total denial. The learned trial Court, on proper evaluation of the evidence on record, convicted the accused-Petitioner as aforesaid. 6. The accused-Petitioner preferred an appeal against the judgment of the learned trial Court before the learned Additional Sessions Judge, Khowai, West Tripura. The learned appellate Court, after due evaluation of the arguments advanced by the learned Counsel for the parties, affirmed the conviction and sentence, awarded by the learned trial Court, giving rise to this revision petition. 7. Mr. 6. The accused-Petitioner preferred an appeal against the judgment of the learned trial Court before the learned Additional Sessions Judge, Khowai, West Tripura. The learned appellate Court, after due evaluation of the arguments advanced by the learned Counsel for the parties, affirmed the conviction and sentence, awarded by the learned trial Court, giving rise to this revision petition. 7. Mr. Somik Deb, learned Counsel for the revision Petitioner, has mainly raised the question of non-identification of the accused-Petitioner as the driver of the offending vehicle, who allegedly committed the offence alleged. Learned Counsel for the Petitioner has pointed out that none of the witnesses of the prosecution could ascertain with certainty that at the relevant point of time, when the accident took place the accused-Petitioner was driving the offending vehicle, in question. Learned Counsel for the convict-Petitioner, by drawing the attention of this Court to the evidence of the witnesses, submitted that except P.W. 9 (Investigating Officer), no other witnesses came forward to implicate the convict-Petitioner, for the commission of offence alleged against him. 8. On perusal of the evidence of P.W. 9 (Investigating Officer), it appears that the source of information regarding the involvement of the accused, being the driver of the vehicle at the relevant time, is a piece of paper (Exbt. P.5), obtained by the Investigating Officer from the owner of the vehicle. On perusal of Exbt. P.5, it clearly transpires that the owner purportedly had written a letter to the Officer In-Charge, Teliamura Police Station, requesting for release of the vehicle in question stating therein that on the date of occurrence, the driver of the offending vehicle was the Petitioner i.e. Babu Singh. Learned Counsel for the Petitioner has raised the question that the piece of paper (Exbt. P.5), exhibited in the Court by P.W. 9 was purportedly issued by the owner of the vehicle, however, Exbt.P. 5 was not authenticated by the owner by proving the content of the document by proving his signature thereon, and such a piece of document cannot be the sole basis for finding the accused-Petitioner guilty for the commission of offence alleged. 9. It seems that piece of paper (Exbt. P.5), would only create a suspicion that the accused-Petitioner may have been the driver on the relevant date of occurrence, when the accident took place. 9. It seems that piece of paper (Exbt. P.5), would only create a suspicion that the accused-Petitioner may have been the driver on the relevant date of occurrence, when the accident took place. However, on careful perusal of the analysis made by the learned trial Court, as well as the appellate Court, it transpires that the Exbt. P.5 has been used as a substantive piece of evidence to identify the vehicle and as well the accused as the sole person responsible for the commission of offence. It may be mentioned here that except the statement in Ext. P.5 made by the owner for release of the vehicle, there was no independent eye witness, who had seen the accused-Petitioner, driving the vehicle at the relevant time. The owner was not brought as a witness to prima-facie show that on the date of occurrence the vehicle was in charge of the accused-Petitioner as a driver. 10. 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. In the facts and circumstances, since the vehicle belonged to the owner, the possibility of the owner himself driving the vehicle at the relevant time of the accident also cannot be ruled out. Having met with the accident, in order to save from the wrath of prosecution, one might be tempted to give incorrect information to the police putting the blame on the accused Petitioner. This situation, which is probable in the facts and circumstances of the case, only creates doubts on the complicity of the accused Petitioner. 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. 11. Apparently, the Exbt. P.5 cannot substitute the requirement of proof beyond all reasonable doubts. As rightly pointed out by the learned Counsel for the convict-Petitioner, the owner of the vehicle, being only interested to gain the possession of the vehicle, would easily name any of the drivers from the fleet of his vehicles, he may be possessing to save his own skin and/or get back the vehicle in his possession. 12. As rightly pointed out by the learned Counsel for the convict-Petitioner, the owner of the vehicle, being only interested to gain the possession of the vehicle, would easily name any of the drivers from the fleet of his vehicles, he may be possessing to save his own skin and/or get back the vehicle in his possession. 12. The learned trial Court, as well as the learned appellate Court, solely based their reliance on the document (Exbt. P.5) to return a finding of guilt of the accused-Petitioner. The prosecution on its part, except placing Exbt. P.5 on the record, could not adduce any other evidence to prove that the Petitioner was driving the offending vehicle in question at the time of the accident. Exhibit P.5 unfortunately, could only create doubt in the mind of the Court. Doubts, after all, howsoever strong it might be, it can not replace the requirement of proof. 13. The evidence of the I.O. P.W. 9, in respect of Ext. P.5 would be thus be no better than any other statement before the police and it could not be legal evidence. I, therefore, find it to be a case, where conviction of the Petitioner was liable to be set aside, as there was no evidence before the court to connect the accused Petitioner with this alleged act of rash and negligent driving, of which he stood charged. 14. In cases where name or description of an accused person is not given in the F.I.R., and no test identification parade was held, and the accused persons was not known earlier to the witnesses, then the identification made in court solely on the basis of the of a letter obtained by the police during investigation is not worthy of reliance and could not be taken as evidence connecting the accused and the crime. 15. In the instant case although, it is a case of unfortunate injury, on account of a road accident, but there is no escape from accepting the plea that on record of the case there was no credible or legal evidence, to connect the present Petitioner with the said rash and negligent driving, justifying his conviction. 16. 15. In the instant case although, it is a case of unfortunate injury, on account of a road accident, but there is no escape from accepting the plea that on record of the case there was no credible or legal evidence, to connect the present Petitioner with the said rash and negligent driving, justifying his conviction. 16. 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 consequently sentenced him as aforesaid. 17. Accordingly, without lingering the discussions any further, I am of the considered view that the judgment and order passed by the learned trial Court as well as the learned appellate Court, warrants interference. Consequently, the judgments of the learned trial Court as well as the learned appellate Court, are set aside and the Petitioner is acquitted of the offence under Sections 279/338 IPC and he is set at liberty forthwith. 18. The bail bond furnished on behalf of the convict-Petitioner, stands discharged. Send down the Lower Court Records immediately. Appeal allowed.