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2011 DIGILAW 792 (GAU)

Paresh Chandra Barman v. State of Tripura

2011-09-22

UTPALENDU BIKAS SAHA

body2011
JUDGMENT U.B. Saha, J. 1. The instant criminal revision petition is filed by the convict petitioner under Section 397 read with Section401, Cr. PC, challenging the judgment dated 15.04.2004 passed by the learned Sessions Judge in Criminal Appeal No. 41 (4) of 2003 whereby and whereunder learned Sessions Judge upheld the judgment dated 29.09.2003 passed by the learned Addl. Chief Judicial Magistrate, West Tripura, Agartala in Case No. GR 93812001 whereby and whereunder the petitioner was convicted under Section 279 and 304-A, IPC and sentenced to undergo RI for six months for commission of offence punishable under Section 279, IPC and also to suffer RI for one year for commission of offence punishable under Section 304-A, IPC. Heard Mr. S. Deb, learned senior counsel assisted by Mr. Somik Deb, learned counsel for the petitioner as well as Mr. A Ghosh, learned Addl. PP for the State respondent. 2. The prosecution case in brief is that on 10.11.2001 at 1305 hours, PW. 1 Gopal Das lodged a written ejahar with the Officer In-Charge of Champak Nagar Police OP alleging inter alia, that on the same day at about 9.30 a.m. his nephew, Shri Subrata Das, aged about 5 years was knocked down by a speeding Teliamura bound truck bearing registration No. AS-01-F-2176 on Assam-Agartala road at Chandra Sadhu Para, as a result of which, said Shri Subrata Das died on the spot. It was also alleged that the aforesaid accident driver. 3. On receipt of the ejahar, the Officer-in-Charge of the Champak Nagar OP entered the gist of the information in GD Book vide Champak Nagar GD Entry No. 228 dated 10.11.2001 and thereafter forwarded the FIR to the Jirania PS for registration of a specific case. 4. Upon receipt of the FIR, the police registered Jirania P.S. case No. 101/2001 under Sections 279/304-A, IPC and set the criminal law in motion. After investigation of the case, the investigating officer, PW 13 Shri Priti Ranjan Laskar, Officer-in-Charge of the Champak Nagar OP filed charge-sheet against the accused petitioner, Paresh Chandra Barman under Section 279/304-A of the IPC. 5. On receipt of the charge sheet, learned CJM, West Tripura, Agartala took cognizance of the offence and thereafter transferred the case to the Court of the learned Addl. CJM, West Tripura, Agartala for disposal of the case in accordance with law. The accused-petitioner was examined under Section 251, Cr. 5. On receipt of the charge sheet, learned CJM, West Tripura, Agartala took cognizance of the offence and thereafter transferred the case to the Court of the learned Addl. CJM, West Tripura, Agartala for disposal of the case in accordance with law. The accused-petitioner was examined under Section 251, Cr. PC for commission of offence punishable as stated supra, and the accused-petitioner while answering to the questions put to him pleaded not guilty and claimed to be tried. 6. To bring home the offence under Section 279/304-A, IPC against the accused-petitioner, the prosecution examined as many as 13 (thirteen) witnesses, including the official witnesses, and also exhibited certain documents, namely, ejahar, Sunthal Report, Motor Vehicle Inspection Report, Post Mortem Report, Seizure List, etc, On examination of the witnesses and recording of their evidence, learned Addl. CJM examined the accused- petitioner under Section 313, Cr. PC. The accused-petitioner did not adduce any evidence in support of his defence as his case was of total denial. 7. After hearing the parties and taking note of the evidence on learned trial Court convicted the accused-appellant and sentenced him, as stated supra. 8. Against the order of conviction and sentence passed by learned Addl. CJM, accused-petitioner preferred an appeal before the learned Sessions Judge, West Tripura, Agartala which was registered as Criminal Appeal 41 (4) of 2003. After hearing the parties learned Sessions Judge upheld the judgment of the learned Addl. CJM vide his judgment dated 15.04.2004 which is ultimately challenged before this Court in the instant revision petition. 9. Mr. Deb, learned senior counsel while urging for setting aside the order of conviction and sentence passed by the learned trial Court and upheld by the appellate Court, submits that though the prosecution was able to prove the alleged accident but failed to connect the present petitioner with the said accident, particularly, regarding his status as a driver of the offending vehicle. He further contended that the prosecution also failed to prove that the death of the deceased Subrata Das was caused due to the direct result of the rash and negligent act of the accused-petitioner. He further contended that to prove the negligence of the driver of a vehicle, particularly in an offence under Section 279/304-A prosecution is liable to prove what the actual speed of the vehicle was at the time offending vehicle was negligent in his act. He further contended that to prove the negligence of the driver of a vehicle, particularly in an offence under Section 279/304-A prosecution is liable to prove what the actual speed of the vehicle was at the time offending vehicle was negligent in his act. He finally contended at a vehicle being driven at a speed of 50 Kmph in an empty road may not amount to rash and negligent driving but a vehicle being driven in crowded area at a speed of 30 Km per hour may amount to rash and negligent driving and in the instant case none of the witnesses made any statement as to what was the actual speed of the vehicle and what was the condition of the road. He again contended that the prosecution case is mainly based on the evidence of PW 1, Gopal Das, PW 3 Khalak Mian and PW 8, Ashit Ranjan Barman. 10. PW 1, Gopal Das in his evidence did not name the present accused-petitioner and he identified the petitioner for the first time in the dock and such identification cannot be accepted by the Court. He also contended that though PW 3, Khalak Miah in his chief stated that he saw the driver of the truck when he was driving the truck and ultimately identified him in the dock, but in his cross he deposed that he did not state to the Darogababu that after the accident the driver of offending truck came back to the spot after the said truck had been detained by the local people on the road. Therefore, the said PW also cannot be believed. PW 8, Ashit Ranjan Barman, the owner of the vehicle, in his chief stated that on receipt of the notice of the case he has informed the name of the accused-petitioner as driver but in his cross he stated that he did not receive any formal notice in writing from the I.O. asking him to furnish the name and address of the driver of the offending vehicle and he also could not say who drove the truck bearing registration No. AS-01-F-2176, i.e. the offending vehicle, at the time of the accident on 10.11.2001. 11. 11. He further contended that in absence of evidence to establish negligence or rashness in driving, the order of conviction passed by the learned trial Court and upheld by the appellate Court is required to be interfered with. In support of his aforesaid contention he placed reliance on a decision of the Apex Court in State of Karnataka v. Satish, (1998) 8 SCC 493 . 12. He finally contended that if this Court comes to a conclusion that both the learned trial Court as well as the appellate Court convicted the petitioner rightly, then this Court may consider what should be the sentence after 10 years of occurrence of the incident, as for the last ten years the accused-petitioner is on bail. 13. Mr. Ghosh, while supporting the judgment of the trial Court as well as the judgment of the appellate Court, as impugned in the instant appeal, would contend that the accused appellant, driver of the offending vehicle, whose loathly hands at the wheel of a heavy automobile has taken the life a child, son of PW 6, Kumud Ch. Das would be punished and the order of conviction and sentenced passed by the learned Court below should be maintained. He further submits that traffic accident is nowadays increasing more and more due to negligence of the drivers of the vehicles. The provisions of Sections 279 and 304, IPC are enacted only to impose a duty upon the driver of a vehicle so that they should be more careful while driving the vehicle and should always try to avert the risk on human life. He again contended that our country is not so developed that it can provide speed sync in every part of the State to assess the speed of the vehicle but in every vehicle there is a speedometer from which the driver can easily read the speed of the vehicle and see as to whether he is moving rashly or not. 14. In the instant case also it was the driver who was negligent and was driving the vehicle rashly, as evident from the evidence of the informant, PW 1, Gopal Das the uncle of the deceased 5 year old PW 3, Khalah Miah, a Rickshaw Puller and PW 8, Ashit Ranjan Barman, owner of the vehicle. 15. While resisting the contention of Mr. 15. While resisting the contention of Mr. Deb that the petitioner could not be connected with the accident and also with the offending vehicle, he placed reference on the 313 statement of the accused-petitioner recorded by the trial Court, wherein the accused- petitioner has stated that he did not drive the vehicle negligently, meaning thereby, that he was driving the vehicle. 16. Before dealing with the submission of the learned counsel for the parries, it would be proper for this Court to discuss about the salient portion of the evidence of PW 1, Gopal Das, PW 3, Khalak Miah, and PW 8, Ashit Ranjan Barman. 17. PW 1, Shri Gopal Das, uncle of deceased, who is an eyewitness of the incident, noticed that his nephew Subrata Das aged about 5 years was standing on the grass on the southern side of the road and at that time one truck bearing No. AS-01-F-2176 came in at a high speed from Agartala side and dashed his nephew. He also stated that the vehicle ran over his nephew and went away towards Teliamura and the said vehicle was detained by the local people. He further stated that as a result of the accident his nephew succumbed to the injuries on the spot. He also stated that he knew the driver of the offending truck who was there in the truck and also identified the person. In cross, defence failed to shatter his evidence in chief. 18. PW 3, Khalak Miah, a Rickshaw Puller, who was coming with his Rickshaw from Champak Nagar side towards Jirania side along Assam-Agartala road has stated in his chief that he noticed one truck bearing No. AS-01-F-2176 came from Agartala side at a high speed and dashed one boy namely, Subrata Das who was standing on the southern side of the road on the grass portion. He also stated that he saw the driver of the truck while he was driving the truck and he also identified the present petitioner as the driver of the truck. 19. He also stated that he saw the driver of the truck while he was driving the truck and he also identified the present petitioner as the driver of the truck. 19. In his cross, though he stated that he did not state to the Darogababu that after the incident the driver of the offending truck came back to the spot after it had been detained by the local people on the road but he specifically stated in the cross that the offending truck later came back to the spot of the accident and then he identified the driver properly. 20. PW 8, Ashit Ranjan Barman though stated in his evidence that he informed the name of the accused-petitioner as driver of the offending vehicle, but in his cross he stated that he cannot say who drove the offending vehicle at the time of accident. 21. In a case of road accident by moving vehicles, it is ordinarily difficult to find witness who would be in a position to firmly narrate the sequence of the vital events during the few moments immediately preceding the actual incident from which its true cause can be ascertained, far to the speed. In our country, people using the road who may happen to be in the vicinity are normally busy in their own preoccupations and in the normal course their attention is attracted by the noise or by the disturbance caused by the accident. It is only after the accident that people raise their voice and create noise. Therefore, only after the accident the people come to know what happened actually. But there are cases where the people even at the time of accident saw the accident and the case in hand in one of those where the PW 1 and PW 3 saw the driver of the offending vehicle as well as they could imagine what was the speed. Being they are village people they are not aware of the legal terms like rash and negligent act, and for that reason they said the vehicle was in high speed. The defence even did not suggest to any of the witnesses that the deceased child was on the wrong side of the road or even in the middle of the road and for his contributory negligence the incident happened. Trend of the defence case is total denial. 22. The defence even did not suggest to any of the witnesses that the deceased child was on the wrong side of the road or even in the middle of the road and for his contributory negligence the incident happened. Trend of the defence case is total denial. 22. It also appears from the evidence of the aforesaid witnesses and other witnesses that the local people detained the vehicle and the accused-petitioner himself surrendered to the police after sometime of the accident. Therefore, it cannot be said that the accused-petitioner was not the driver of the offending vehicle, more so when in his statement under Section 313, Cr. PC he specifically stated that he did not drive the vehicle negligently, meaning thereby he was the driver of the vehicle being driven negligently. 23. Now question remains whether the deceased died due to rash and negligent driving of the vehicle or not. As PW 1, Shri Gopal Das and PW 3, Khalak Miah, specifically stated that the offending vehicle was at a high speed and the said vehicle knocked down deceased Subrata Das, it cannot be said that the driver was not driving the vehicle negligently. Once rash and negligent driving is proved, Section 279, IPC is proved and as in the instant case, the death of the deceased child was caused due to the rash and negligent driving of the offending vehicle run by the accused-petitioner, Section 304-A is also established. Therefore, according to this Court, the learned trial Court as well as the appellate Court rightly convicted the accused-petitioner. 24. There are two parts of the Section 304-A, IPC. First part relates to death of any person by a rash act of the accused. The second part comes in operation when the death is caused due to negligent act; but in both cases, it should not amount to culpable homicide. The prosecution has either to prove the first part or the second part but there may be cases where both the parts may come in operation simultaneously if the evidence suggests that the act of the accused was not only rash but also negligent which resulted in death of someone. 25. The prosecution has either to prove the first part or the second part but there may be cases where both the parts may come in operation simultaneously if the evidence suggests that the act of the accused was not only rash but also negligent which resulted in death of someone. 25. In State of Himachal Pradesh v. Mohinder Singh, 1982 (2) Crimes 159 a Single Judge of the Himachal Pradesh High Court noted that criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause an injury but without intention, to cause injury or knowledge that it will probably be caused. The criminality lies in taking the risk of doing such an act with recklessness or being indifferent as to the consequence. Reckless driving or driving in a manner dangerous to public is rashness. In order to see whether it is so the condition of the road, the amount of traffic at the time and number of persons frequently moving about on the road or expected to be on the road, are some of the factors to be taken into consideration in assessing the rashness or negligence or the driver. It is duty of every man who drives a vehicle on the public way, to drive it which such a care and caution as to prevent, as far as possible, any injury to anyone. 26. In the instant case, the occurrence took place in the year 2001 and by this time more than 10 years have passed. The petitioner is presently on bail and at the time of the incident he was aged about 40 years. Considering the peculiar facts of the case, particularly age of the petitioner and the delay caused in deciding the revision petition, this Court is supposed to relook the order of sentence passed by the learned trial Court and upheld by the appellate Court. 27. In the case of B.C. Goswami v. Delhi Administration, 1974 Cri LJ 243, the Apex Court discussed what should be the proper sentence for an offence and while discussing, their lordships observed, inter alia, that "Now question of sentence is always a difficult question, requiring as it does, proper balancing of various considerations which weigh with judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realize that he has committed an act of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence, it is also designed to reform the offender and re- claim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the 'other may frustrate thereby making the offender a hardened criminal." 28. The aforesaid case of B.C. Goswami (supra) was subsequently followed by the Apex Court in the case of Ramesh Kr. Gupta v. State of Madhya Pradesh, AIR 1995 SC 2121 wherein the sentence of imprisonment was reduced to the period already undergone, in a case where the accused was sentenced under the Prevention of Corruption Act. 29. In the present case a period of more than 10 years has elapsed. In that view of the matter though the conviction is upheld, this Court does not think it desirable to send the accused-petitioner to jail when he has been on bail for 10 years. Therefore, the interest of justice would be met if the accused- petitioner is sentenced to pay a fine instead of jail sentence as awarded by the trial Court as well as by the appellate Court. 30. Accordingly, it is ordered that the sentence to suffer RI for six months for offence committed under Section 279, IPC is modified to a sentence of payment of fine of Rs. 2,000/- and sentence of one year RI for commission of offence under Section 304-A, IPC is modified to a sentence of payment of fine of Rs. 3,000/-, in total Rs 5,000/-. 31. The petitioner is directed to pay the aforesaid amount of Rs. 5,000/- within a period of two months from today, i.e. to pay the fine money thereof, he shall undergo RI for six months. 3,000/-, in total Rs 5,000/-. 31. The petitioner is directed to pay the aforesaid amount of Rs. 5,000/- within a period of two months from today, i.e. to pay the fine money thereof, he shall undergo RI for six months. The fine money, if realized, shall be paid to the parents of deceased Subrata Das. 32. Before parting with the case, this Court would like to observe that number of motor accidents is multiplying enormously and many lives are taken away due to vehicular accidents, particularly for the negligence of the drivers of the vehicle who drive heavy vehicles as well as heavily loaded vehicles like lorry and jeep and in many cases, the victims are either small school going children or senior citizens who make house of the road on a number of occasions during the day time. It is high time for the State Government to come up with some strategy so that the number of vehicular accidents can be decreased and the life of pedestrians can be saved. With the aforesaid observations, the instant revision petition is party allowed.