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2011 DIGILAW 816 (GAU)

Krishna Debnath v. State of Tripura

2011-09-28

C.R.SARMA

body2011
1. This revision petition is directed against the judgment and order, dated 15.4.2004, passed by the learned Sessions Judge, North Tripura, Kailashahar, in Case No. Criminal Appeal 12(4) of 2002. Aggrieved by the said judgment and order, the convict-appellant, as petitioner, has come up with this revision petition, under sections 401 and 397 read with section 482 of the Code of Criminal Procedure, 1973 ('Cr.PC'). 2.1 have heard Mr. I. Chakraborty, learned counsel, appearing for the petitioner and Mr. A. Ghosh, learned Addl. Public Prosecutor, appearing for the State-respondent. 3. The prosecution case, as revealed during the trial, in brief, may be stated as follows : - The Betcharra Madhyamik Vidhyalay ('the School'), is a school situated on a hilly area, on the western side of the main road (A.A. Road). The road coming from the school, down the hill, joins the main road on its western side. On 9.2.2001, at about 3 O'clock, the petitioner was driving his vehicle (Jeep), bearing Registration No.TRT-1982, from the south to the north of the said main road. At that time, after the break of the said school, Sri Nehamia Darlong, (since deceased) a student of Class-VT and Sri' Rinsanga Darlong, a student of Class-VII, were coming towards the main road by riding a bicycle. As soon as they reached the main road, the said Jeep, coming from the northern side, dashed against them as a result of which they had fallen down on the road. In the said accident both the students aforesaid, sustained injuries and they were immediately taken to the Kumarghat Gramin Hospital and, thereafter, referred to the R.G.M. Hospital, Kailashahar. On the next day of the said accident, out of the two injured persons, one Nehamia Darlong ('the deceased) succumbed to the injuries sustained by him. The offending vehicle was detained by the students, who gathered in the place of occurrence. The Headmaster of the said School lodged the FIR (Ext.P/4) with the O/C, Fatikray Police Station, Kumarghat, North Tripura. 4. On receipt of the FIR, police registered a case under sections 279/338 of the Indian Penal Code ('IPC') and launched investigation into the matter. Police also made a prayer before the learned Chief Judicial Magistrate, North Tripura, Kailashahar, to add the offence under section 304A, IPC and the said prayer was allowed. 4. On receipt of the FIR, police registered a case under sections 279/338 of the Indian Penal Code ('IPC') and launched investigation into the matter. Police also made a prayer before the learned Chief Judicial Magistrate, North Tripura, Kailashahar, to add the offence under section 304A, IPC and the said prayer was allowed. At the close of investigation, police submitted charge sheet, under sections 279/3387 304A IPC, against the present petitioner and forwarded him to the court of the learned Chief Judicial Magistrate, Kailashahar to stand trial. During trial, the petitioner was examined under section 251, Cr.PC, to which he pleaded not guilty and claimed to be tried. The plea of the defence is a denial one. 5. In order to prove its case, prosecution examined as many as 12(twelve) witnesses including the Medical Officers and the Investigating Police Officer. At the close of evidence for the prosecution, the accused person was examined under section 313, Cr.PC. He denied the allegations brought against him and declined to adduce any defence witness. 6. The learned Chief Judicial Magistrate, Kailashahar by his judgment and order, dated 31.10.2002, convicted the accused-petitioner, under sections 279/338/304A, IPC and sentenced him to suffer simple imprisonment for two months, for his conviction under section 279, IPC, simple imprisonment for one year, for his conviction under section 338, IPC and simple imprisonment for two years, for his conviction under section 304A, IPC. It was also directed that, all the sentences shall run concurrently. 7. Aggrieved by the said conviction and sentence, the convict, as appellant, preferred an appeal, being Criminal Appeal No. 13(4)72002, before the learned Sessions Judge, North Tripura, Kailashahar, and the learned Sessions Judge, by the impugned judgment and order, dated 15.4.2004 aforesaid, while upholding the conviction under section 304A, IPC, modified the conviction under sections 279 and 338, IPC to one under section 337, IPC. Accordingly, the learned Sessions Judge modified the sentences, requiring the appellant to suffer simple imprisonment for six months for his conviction under section 304A, IPC and simple imprisonment for one month for his conviction under section 337, IPC. It was also directed that both the sentences shall run concurrently. Dissatisfied with the said judgment and order of conviction and sentence, the convict-appellant, as petitioner, has come up with this revision petition. 8. Mr. It was also directed that both the sentences shall run concurrently. Dissatisfied with the said judgment and order of conviction and sentence, the convict-appellant, as petitioner, has come up with this revision petition. 8. Mr. I. Chakraborty, learned counsel, appearing for the petitioner, taking this court through the evidence on record, has submitted that the prosecution failed to establish that the petitioner drove the vehicle rashly and negligently endangering human life and as such the conviction under sections 304A and 337, IPC is bad in the eye of law. 9. Mr. A. Ghosh, learned Addl. Public Prosecutor, referring to the evidence on record, has submitted, that there is sufficient evidence on record to show that the accident took place due to rash and negligent driving by the petitioner and, therefore, the learned Sessions Judge committed no error by recording the conviction and sentences as indicate above. 10. There is no dispute that the accident had taken place involving the vehicle driven by the petitioner and the injured as well as the deceased sustained injuries in the said accident, involving the said vehicle. Now, the question is, as to whether the petitioner had driven the vehicle so rashly and negligently endangering human life or personal safety of others and whether the death of the deceased and the injury in respect of Mr. Rinsanga Darlong was caused by rash and negligent act, i.e., rash and negligent driving of the offending vehicle by this petitioner. 11. Section 304A, IPC, which relates to causing death by negligence, reads as follows: "304A. Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 12. In order to establish the charge of negligence, under section 304A, IPC, the prosecution is required to establish that the accident was the direct result of negligence or rashness on the part of the accused person. A vehicular accident resulting death of one and injury to others can't itself lead to conclude that the driver of the vehicle is guilty of the offence under section 304A, IPC, unless rash and negligent driving on his part is proved. A vehicular accident resulting death of one and injury to others can't itself lead to conclude that the driver of the vehicle is guilty of the offence under section 304A, IPC, unless rash and negligent driving on his part is proved. In a case under section 304A, IPC, the following essential ingredients are required to be established : - "(i) That the accused caused the death of any person; (ii) That such death was caused by the accused doing any rash act; Or That such death was caused by the accused doing any negligent act; and (iii) Such a death did not amount to culpable homicide." Unless the rashness or negligence on the part of the driver, in a vehicular accident is established, such driver can't be held guilty, under section 304A, IPC. 13. Section 337, IPC, which relates to causing hurt by an act endangering life or personal safety, reads as follows : - "337. Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees." To constitute an offence under section 337, IPC, it must be established that the hurt caused is the direct result of rash and negligent act. In a case under section 337, IPC, the existence of the following ingredients must be established : - "(i) Some act was done rashly or negligently; (ii) That the act endangered human life or the personal safety of others; (iii) That hurt was cause to any person in the doing of such an act." Therefore, to hold a driver of an offending vehicle guilty of the offence under section 337, IPC, it must be proved that there was negligence or rashness on the part of the driver of the offending vehicle. 14. In a criminal proceeding the burden to prove the charge lies on the prosecution and the standard of proof is very high i.e., beyond all reasonable doubt. Therefore, in such a case, prosecution is required to prove that rashness and negligence is the cause of the accident resulting injury or death of the victim. 15. 14. In a criminal proceeding the burden to prove the charge lies on the prosecution and the standard of proof is very high i.e., beyond all reasonable doubt. Therefore, in such a case, prosecution is required to prove that rashness and negligence is the cause of the accident resulting injury or death of the victim. 15. In view of above, in order to appreciate the arguments, advanced by the learned counsel for both the parties and to examine the correctness of the impugned judgment and order, I feel it appropriate to, briefly, scan the evidence on record. 16. Sri Subal Ch. Barman, who was a Junior Engineer of the PWD, Manu, was travelling in the offending Jeep. He deposed as PW1. According to this witness, he was returning from Kumarghat to Manu, i.e., from north to south. He stated that, when the vehicle reached Betcharra, i.e., the place of occurrence, two students of Betcharra school, who were coming from up of the hill, very speedily, in a bicycle, dashed against their vehicle, as a result of which they had fallen down on the road. He also stated that the said two students, who sustained bleeding injuries, were shifted to the hospital. PW1 further stated that, on the next day of the accident, he heard that one of the injured students succumbed to his injures. In his cross-examination, this witness denied the suggestion that the injured students did not dash against his vehicle. He also denied the suggestion that their vehicle wae- moving in a very high speed and that the vehicle had dashed against the said bicycle. According to this witness, the bicycle, which was coming down the main road, was in high speed and that the same dashed against the offending vehicle, resulting the accident. 17. Sri Pintu Debnath, who deposed as PW2, was a student of the said school. He stated that, when he was returning home, two students, i.e., the deceased and the injured, who were riding in a bicycle. According to this witness, when the said two students, riding bicycle, reached the main road the offending vehicle, coming from the northern side, dashed them, as a result of which, both the bicycle riders had fallen down on the road. He stated that the accident had taken place due to negligence on the part of the Jeep. According to this witness, when the said two students, riding bicycle, reached the main road the offending vehicle, coming from the northern side, dashed them, as a result of which, both the bicycle riders had fallen down on the road. He stated that the accident had taken place due to negligence on the part of the Jeep. He did not state anything about the manner of driving the vehicle by the driver of the said vehicle. His evidence is silent about the speed of the vehicle and the manner of driving. 18. Sri Lalnuna Darlong, another student of the said school, deposed as PW3. He stated that, as soon as the deceased and the injured, who were riding in a bicycle, reached the A.A. Road, a vehicle coming from the northern side, dashed their bicycle. He further stated, that the said vehicle i.e. the Jeep was coming in a high speed and that the same was on its wrong side. In his cross-examination, this witness stated that, at the place of accident, there was a drain constructed by the Telephone Department for installing telephone line and that the drain was filled up with mud. He further stated that the road coming from the school towards the main road was downwards and that the deceased and the injured were coming from up to the down side of the road and that the accident took place when the bicycle riders crossed the drain. 19. Sri Rinsanga Darlong, one of the injured in the said accident, deposed as PW4. He stated that, when he and the deceased, coming from the school, reached the left side of the main road, a vehicle coming from Kumarghat direction in high speed, dashed against their bicycle. He stated that the vehicle was on the wrong side and that they sustained injuries due to the said accident. This witness further stated that the accident took place due to the negligence of the driver of the said vehicle. In his cross-examination, this witness stated that the accident took place when he and the deceased directly reached the main road from the school. PW4 also stated that they did not get down from the bicycle till they reach the main road. He denied the suggestion that, when he turned towards the left side, the vehicle had dashed them from the wrong side. PW4 also stated that they did not get down from the bicycle till they reach the main road. He denied the suggestion that, when he turned towards the left side, the vehicle had dashed them from the wrong side. He also denied the suggestion that, there was no negligence on the part of the driver of the vehicle. He denied the suggestion, put to him by the defence, that the accident took place due to failure of break of their bicycle and that they had dashed the vehicle. 20. Sri Neisuazona Darlong, another student of the said school, deposed as PW5. He stated that, when he was coming from the school towards the main road then a vehicle (Jeep), coming from Kumarghat direction, had dashed against the bicycle, ridden by the deceased and the injured. He also stated that the accident took place due to negligence on the part of the driver of the vehicle. In his cross-examination, this witness stated that the school was situated on a high hill and the road to the school was upward from the main road. 21. Sri Samiran Deb, who deposed as PW6, stated that, on the date of the occurrence, at about 3 p.m., he was standing infront of his house and saw that the bicycle, ridden by the deceased and the injured, coming down their school, was dashed, on the main road, by a Jeep. He stated that the accident took place due to the fault on the part of the driver of the offending vehicle. This witness did not state that the vehicle was driven in a rash and negligent manner. According to this witness, the vehicle was coining from the southern side and going towards the north. But, according to PW1, PW3, PW4 and PW5, the vehicle was coming from Kumarghat. As per the sketch map, Ext. No.6, Kumarghat is situated towards the north. PW2 also stated that the vehicle was coming from the north. In view of the evidence of the said witness, as well as the Ext.No.6, the vehicle was coming from the north. Therefore, the evidence of PW6 that the vehicle was coming from south is not true. Hence, the presence of PW6 at the place of occurrence is doubtful. 22. PWs 4 and 5 stated that the accident took place due to negligence of the driver. Therefore, the evidence of PW6 that the vehicle was coming from south is not true. Hence, the presence of PW6 at the place of occurrence is doubtful. 22. PWs 4 and 5 stated that the accident took place due to negligence of the driver. They also did not say that there was rashness and negligence in driving. PWS simply stated that the accident occurred due to fault on the part of the driver. He did not state as to what was the fault of the driver. In tune with the evidence of PWS, PW2 also stated that the accident took place due to negligence of the driver of the Jeep.. He did not state that there was rash and negligent driving on the part of the driver of the vehicle. 23. Sri Saktipada Roy, a Junior Engineer of the PWD, Manu, was also travelling in the offending vehicle on the fateful day. He, deposing as PW7, stated that when their vehicle reached near Betchara High School approach road, i.e., the approach road to the school, two students of the said school coming from the school, in a bicycle, had suddenly dashed against their vehicle, as a result of which, both the two students had fallen down on the ground. PW7 further stated that the vehicle was immediately stopped and he along with others shifted the injured boys to the hospital. This witness was declared hostile and cross-examined by the prosecution. In his cross-examination, this witness stated that their vehicle was on the left side of the main road. He denied the suggestion, put to him by the prosecution, that their vehicle had dashed the bicycle. In his cross-examination, made on behalf of the defence, this witness stated that the bicycle had dashed the vehicle on the right side of the seat of the driver. Though this witness was examined by the prosecution, after declaring him hostile, his evidence, that the vehicle was moving on its left side and that the bicycle had dashed the vehicle on the right side, i.e., by the side of the driver's seat, remained unchallenged. Though this witness was examined by the prosecution, after declaring him hostile, his evidence, that the vehicle was moving on its left side and that the bicycle had dashed the vehicle on the right side, i.e., by the side of the driver's seat, remained unchallenged. From his evidence, it appears that the victim and the injured students, who were riding a bicycle, coming from up of the hill, directly reached the main road through which the offending vehicle was moving by its left side and the bicycle had dashed on the right side of the seat of the driver, This suggests that the Jeep vehicle was dashed by the bicycle, ridden by the victim and the injured. The evidence of this witness has been controverted by PW 1. From the evidence of PW 1 and PW 7, it appears that the accident took place due to fall of the bicycle riders and that there was no rash and negligence driving on the part of the petitioner. 24. Dr. Rupamoy Waddedar, who performed the post mortem examination in respect of the dead body of the deceased, deposed as PW8. He opined that the death of the deceased was due to haemorrhagic shock caused by the vehicular accident. There is no dispute that the deceased died due to the said vehicular accident. 25. Dr. Hari Sankar Bhattacharjee, who deposed as PW9, stated that, on 9.2.2001, he had examined the injured Rinsanga Darlong and found injuries on his body. According to this witness, the injuries were simple in nature. Admittedly, the occurrence took place on 9.2.2001. Therefore, there is no dispute regarding the injuries sustained by the said injured person also. 26. Sri Ashim Saha, a Senior Motor Vehicles Inspector, who deposed as PW10, stated that, on 13.2.2001, he examined the vehicle, bearing Registration No.TRT-1982 and found that there was no mechanical disorder in respect of the said vehicle. It is nobody's case that the accident had taken place due to any mechanical disorder of the vehicle. 27. Sri Neituab Darlong, the Headmaster of Betcharra High School, who was the informant in this case, deposed as PW11. He stated that, he had lodged the FIR on being reported about the incident. This witness did not see the accident himself. He had lodged the FIR on the basis of the information received from some of his students. 28. 27. Sri Neituab Darlong, the Headmaster of Betcharra High School, who was the informant in this case, deposed as PW11. He stated that, he had lodged the FIR on being reported about the incident. This witness did not see the accident himself. He had lodged the FIR on the basis of the information received from some of his students. 28. The Investigating Officer, Sri Sefal Roy Choudhury, deposed as PW12. He stated that, he had visited the place of occurrence and prepared the hand sketch map of the same. He exhibited the said sketch map as Ext.P/6, which indicates that the school was situated on a hill and the road from the school to the main road, i.e., A.A. Road, was from the hill to plain, touching the main road on its western side. 29. From the evidence on record and the sketch map, i.e., Ext. No.P/6, it is found that the deceased and the injured students, who were riding a bicycle, were coming down the said road from the school and they, after reaching the main road, attempted to go towards the north. Fact remains that they came from up of the hill towards the down side of the road. The offending vehicle was coming from the north to south through the main road. The sketch map indicates that the deceased and the injured were required to take a turning towards their left side immediately after reaching the main road. There was a drain also on the main road. The accident took place almost at the meeting point of the said road and towards the north of the main road. 30. From the evidence of PWs 1 and 7, who were the passengers of the offending vehicle, it appears that the injured and the victim were riding their bicycle in speed down the hill and they, immediately after reaching the main road, dashed against the Jeep vehicle, as a result of which, they had fallen down in the place of occurrence. Though PW1 and PW 7 denied the suggestion that the Jeep vehicle was moving speedily and dashed the bicycle, the other witnesses, i.e., PWs 2, 3,4 and 5, who were the students of the said school, stated that the Jeep vehicle was running in a high speed and that the accident took place due to negligence on the part of the driver of the said vehicle. The said witnesses, except making the statement that the vehicle was moving in high speed and that the accident took place due to fault of the driver, stated nothing to show that the vehicle was not driven in proper way i.e., with care. 31. In order to substantiate the allegation of rash and negligent driving, it must be established, by adducing cogent and reliable evidence, that the driver failed to drive the vehicle by taking proper care and precautions. To ascertain as to whether there was rash and negligent driving the speed and manner of driving are relevant factors. In fact, none of the witnesses stated about the speed at which the vehicle was moved. In view of absence of any evidence regarding the manner in which the vehicle was driven as well as the speed at which the vehicle was moving, it will not be safe to conclude that the driver of the vehicle had driven the vehicle rashly and negligently, i.e., without taking due care. The evidence on record does not inspire confidence to hold that the petitioner was driving the vehicle in a rash and negligent manner. Therefore, it cannot be held that the ingredients of the offences under sections 304A and 337, IPC have been established in this case. In view of the contradictory evidence, given by PW Nos.1 and 7 on the one hand and the evidence given by PW Nos.2, 3, 4 and 5 on the other, it is doubtful whether the accident took place due to fault of the said students or the driver. 32. It is settled position of law that, in a criminal case the prosecution is required to prove the allegation, brought against the accused, beyond all reasonable doubt. It is also settled that if two views are possible, i.e., one going in favour of the prosecution and the other in favour of the defence, then the benefit should always go in favour of the defence. 33. In the light of the above, I have no hesitation in holding that the prosecution failed to prove, beyond all reasonable doubt that the petitioner committed the offence under sections 304A and 337 IPC. Therefore, in my considered opinion the accused person, i.e., the petitioner is entitled to be acquitted on benefit of doubt. 34. Hence, I find sufficient merit in this revision petition, requiring interference with the impugned judgment and order. Therefore, in my considered opinion the accused person, i.e., the petitioner is entitled to be acquitted on benefit of doubt. 34. Hence, I find sufficient merit in this revision petition, requiring interference with the impugned judgment and order. Accordingly, the revision petition is allowed. The impugned judgment and order of conviction and sentences are set aside. Accordingly, the petitioner is acquitted and set at liberty. The bail bond of the petitioner shall stands discharged. Return the Lower Court Records.