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2011 DIGILAW 959 (GAU)

Apu Bhattacharjee v. State of Tripura

2011-12-07

SWAPAN CHANDRA DAS

body2011
JUDGMENT S.C. Das, J. 1. This revisional application under Section 397 r/w Section 401 of Cr.P.C. is directed against the judgment dated 21.06.2004, passed by learned Sessions Judge, West Tripura, Agartala, in Criminal Appeal No.18(1) of 2004, affirming thereby the judgment and order of conviction and sentence dated 16.02.2004, passed by learned Judicial Magistrate, 1st Class, Agartala, in G.R. Case No.161 of 2002, whereby the learned Magistrate convicted the accused petitioner under Sections 279/304(A) of IPC and sentenced him to suffer RI for two years and to pay a fine of Rs.2,000/-, in default of payment, to suffer further RI for one month. 2. Heard learned counsel, Mr. H.K. Bhowmik for the petitioner and learned Spl. P.P. for the State respondent. 3. Briefly stated, the fact leading to the institution and trial of the criminal case against the accused petitioner is that on the intervening night of 05.03.2002 and 06.03.2002 the accused petitioner was the engaged driver of Mini bus vehicle, bearing registration No. TR-01-1239, belonged to one Bimal Kanti Debnath (PW.5) and the vehicle was hired for the journey of a groom party from Agartala to village Bhogjore (Bamutia) and the vehicle carried the groom party numbering about 35 persons and the marriage ceremony was solemnized in the house of one Biswanath Paul of village Bhogjore where the groom party attended and after the marriage ceremony was over, the members of the groom party were waiting for the vehicle in front of the house by both sides of the road as the vehicle was parked at a little away. At about 01.30 am of the night the vehicle, being driven with high speed, arrived in front of the house and knocked down a minor girl, namely Sanjukta Barman, aged about eight years, standing by the road side. The accident alleged to have occurred for rash and negligent driving of the vehicle and immediately after the accident the driver of the vehicle, fled away from the spot. The injured girl Sanjukta was taken to G.B. Hospital where she was declared dead. Postmortem examination was done over the dead body and it was opined that the death was due to head injury as a result of contact with strong and heavy object, pressing the head against a strong surface. FIR was lodged on 06.03.2002 at 11.35 hrs. The injured girl Sanjukta was taken to G.B. Hospital where she was declared dead. Postmortem examination was done over the dead body and it was opined that the death was due to head injury as a result of contact with strong and heavy object, pressing the head against a strong surface. FIR was lodged on 06.03.2002 at 11.35 hrs. with the O/C Sidhai P.S. by PW.1 Ratan Paul, who was an eye witness of the accident, narrating the fact alleging rash and negligent driving by the driver of the vehicle, and accordingly, Sidhai PS Case No.14/2002 under Sections 279/304(A) of IPC was registered and an investigation was taken up. The vehicle was seized in course of investigation and was brought to the P.S. and mechanical examination of the vehicle was done by the M.V. Inspector at P.S. compound on 09.03.2002 and the report was collected by I.O. The owner of the vehicle (PW.5) appeared at P.S. with all documents of the vehicle including the driving licence of the driver (accused petitioner) and those were seized by I.O. by preparing seizure list. The accused petitioner surrendered before the P.S. on 11.03.2002 and he was accordingly arrested and forwarded to the Court, wherefrom he was released on bail. On conclusion of investigation, I.O. submitted charge sheet on the basis of which cognizance was taken and in due course after conclusion of trial learned Magistrate convicted the accused under Sections 279 and 304(A) of IPC and sentenced him as aforesaid. 4. Being aggrieved, the accused petitioner preferred the appeal before the Court of Sessions and the learned Sessions Judge by the impugned judgment dated 21.06.2004 affirmed the judgment and order of conviction and sentence and dismissed the appeal. The present revisional application has been preferred challenging the judgment and order of conviction and sentence and the judgment passed by the learned Sessions Judge affirming the judgment and order of conviction and sentence passed by the learned Magistrate. 5. The revisional Court is to see correctness, legality and propriety of the order and legality of the proceeding. While exercising power of revision, the revisional Court cannot reassess and re-appreciate the evidence on record unless it is apparently shown that the judgment and order passed by the Court below was perverse or that such judgment and order was passed without any legal evidence. While exercising power of revision, the revisional Court cannot reassess and re-appreciate the evidence on record unless it is apparently shown that the judgment and order passed by the Court below was perverse or that such judgment and order was passed without any legal evidence. If there is no illegality, impropriety or incorrectness in the order impugned, the revisional court shall not interfere in the concurrent finding of fact made by the trial Court and the appellate Court. 6. In the present case, as I find, the trial Court and the appellate Court appreciated the evidence on record on all material points argued and raised by the defense and the learned counsel again raised those points which were already answered by the learned Magistrate and learned Sessions Judge. 7. It is argued by learned counsel, Mr. Bhowmik that there is no evidence of rash and negligent driving and both the Courts below were wrong in holding the accused guilty of rash and negligent driving. On the contrary, learned Spl. P.P. has submitted that from the evidence of PWs.1, 2 and 3, it is clear that the accused was driving the vehicle rashly and negligently. The accused was supposed to carry the passengers from the spot where the accident occurred. There was no necessity for the accused to drive the vehicle with high speed while arriving at the spot. A driver must be very cautious while on the steering and the accused abruptly had taken away the life of the minor girl because of his rash and negligent driving and the revisional Court should not interfere in the concurrent finding of fact. On perusal of the evidence on record, I find that the vehicle was hired by the groom party and the members of the groom party were waiting by both sides of the road in front of the house where the marriage solemnized and it was about 01.30 am of the night. The vehicle was brought there by the driver to facilitate the groom party boarding the vehicle. PWs.1, 2 and 3 are the eye witnesses of the accident. They have no animosity with the accused to involve him with a false allegation of rash and negligent driving. They were standing at the road sides. They were made categorical statements that the vehicle with high speed arrived there and knocked down the girl on the road side. PWs.1, 2 and 3 are the eye witnesses of the accident. They have no animosity with the accused to involve him with a false allegation of rash and negligent driving. They were standing at the road sides. They were made categorical statements that the vehicle with high speed arrived there and knocked down the girl on the road side. It is true that mere driving with high speed cannot be termed as rash and negligent driving. A vehicle while on long route through highway cannot be expected to be driven with a speed of 10/15 KMs per hour. In this case, the vehicle was before the house wherefrom the passengers were supposed to board and there was absolutely no necessity for the driver to drive the vehicle with high speed when it already reached the point. The words 'rash' and 'negligent' as used in Section 279 of IPC have not been defined in the section itself or in the Code. The judgment laws, by now, has defined it well, which has been perfected. A 'rash' act is an over-hasty act done without due deliberation and caution. 'Negligence' is the absence of such care and caution which an ordinary man in the ordinary course of nature would take or would not take. In the facts and circumstances and the evidence on record of this case, I find nothing to disbelieve PWs.1, 2 and 3 and the appreciation of their evidence has been rightly made by the trial court. The accused in his examination under Section 313 of Cr.P.C. stated nothing as to under what circumstances the accident had occurred. There is nothing before us that the minor girl was let loose by her mother or her companions and suddenly she ran through the road and the driver could not control the vehicle. In the absence of any such evidence or at least an explanation advanced by the accused, the observation made by the trial Court and affirmed by the appellate Court does not deserve interference. 8. The next point argued by learned counsel, Mr. Bhowmik is that the identity of accused petitioner as driver has not been established but still he has been convicted by the trial Court. Learned Spl. P.P. has submitted that the identity of the accused has been established on his surrender itself and no further evidence is required. 8. The next point argued by learned counsel, Mr. Bhowmik is that the identity of accused petitioner as driver has not been established but still he has been convicted by the trial Court. Learned Spl. P.P. has submitted that the identity of the accused has been established on his surrender itself and no further evidence is required. On perusal of the evidence of PWs.1, 5 and 7, I find that the driver after the accident fled away from the spot. Ordinarily, a passenger boarding a vehicle does not see the face of the driver and normally remains indifferent of the person in the steering of the vehicle. Almost in all cases of vehicular accident identity of the driver is to be established by the prosecution by examining the owner of the vehicle and the documents of the vehicle including driving licence of the driver. In this case also I.O. has done it. PW.1 has identified the accused in the witness box by face that he was the driver. Since it was a vehicle hired by the groom party and PW.1 was the leader of the groom party he might remember the face of the accused and identified him. However, since it was the identification at first point of time it needs corroboration. Such corroboration is available in the evidence of PWs.5 and 7. PW.5, the owner of the vehicle in his examination-in-chief categorically stated that the accused was the driver of the vehicle for 41/2 years continuously. But in cross-examination he made a statement that during night time, for duty, driver was engaged by the syndicate. Prosecution was supposed to controvert the contradictory statement of PW.5 in the witness box itself by contradicting him with his earlier statement but because of the callousness of the prosecution or otherwise that was not done. Therefore, the sole evidence of PW.5 cannot establish the identity of the driver unless corroborated by other evidence. PW.7 stated that the accused surrendered at P.S. on 11.03.2002 and he was forwarded to Court. LC record shows that the accused was released on bail by the learned Chief Judicial Magistrate on that day. Therefore, the sole evidence of PW.5 cannot establish the identity of the driver unless corroborated by other evidence. PW.7 stated that the accused surrendered at P.S. on 11.03.2002 and he was forwarded to Court. LC record shows that the accused was released on bail by the learned Chief Judicial Magistrate on that day. If the accused was not the driver of the vehicle he would not surrender before the P.S. as alleged or that he would make a prayer before the Chief Judicial Magistrate that he was not the driver of the vehicle and that he has been wrongly forwarded before the Court. The evidence on record therefore rightly appreciated by the trial Court and the first appellate Court and I find nothing to reverse the finding on that score. If the accused was not the driver of the vehicle he had the scope to lay evidence to negate the prosecution case but he did not do so. While the accused himself surrendered before the I.O. and he was forwarded before the Court wherefrom he got bail and in the circumstances where the accused did not raise any point that he was not the driver of the vehicle at the time of accident, the incriminating network of evidence clearly support the identification made by PW.1 and the accused cannot get rid of the charge. 9. Another point raised by the learned counsel, Mr. Bhowmik is that after the alleged accident the vehicle was taken to P.S. compound after driving it by some other driver and mechanical examination was done on third day of the accident and in the meantime even if there was any mechanical defects that might have been repaired and at least such a presumption cannot be ruled out and under such circumstances the accused shall get the benefit of doubt. The M.V. Inspector's report is found in the L.C. records. On perusal of the same I find that it was reported by the M.V. Inspector that the vehicle had no mechanical disorder and it was examined in the P.S. compound. It was necessary for the prosecution to arrange examination on the spot but an adverse inference cannot be drawn simply because the vehicle was taken to P.S. compound and examination was done. Rather such fact establishes that the vehicle was in order, having no mechanical disorder. It was necessary for the prosecution to arrange examination on the spot but an adverse inference cannot be drawn simply because the vehicle was taken to P.S. compound and examination was done. Rather such fact establishes that the vehicle was in order, having no mechanical disorder. An adverse inference cannot be drawn simply for the reason that the vehicle was shifted to PS compound. In the absence of any cogent evidence to draw such an inference, I find nothing to hold that the decision taken by the trial Court and the first appellate Court was wrong. This argument also does not stand in the facts and circumstances of the case. 10. On careful consideration of the facts and circumstances and the evidence on record I find nothing to interfere in the finding of conviction arrived at by the learned trial Court and affirmed by the learned Sessions Judge. The Apex Court in the case of Dalbir Singh vs. State of Haryana reported in AIR 2000 SC 1677 has held- When automobiles have become death trap any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All these who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain deterrent element in sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and frolic. 11. The convict was not given the benefit of Section 360 of Cr.P.C. or the Probation of Offenders Act, which in my view was most appropriate in view of the facts and circumstances of the case. However, there is nothing on record that the accused was previously convicted for similar offence. The alleged offence was committed on 06.03.2002. Eleven years has gone. The accused petitioner in the meantime suffered mentally for the sentence so awaiting for him. It took an abnormal time to dispose the revisional application. Under such circumstances, I think imprisonment for 3 (three) months and a fine of Rs.2,000/-shall meet the ends of justice. The revisional application accordingly stands dismissed subject to modification of sentence. 12. The accused petitioner in the meantime suffered mentally for the sentence so awaiting for him. It took an abnormal time to dispose the revisional application. Under such circumstances, I think imprisonment for 3 (three) months and a fine of Rs.2,000/-shall meet the ends of justice. The revisional application accordingly stands dismissed subject to modification of sentence. 12. Accordingly, the convict petitioner is sentenced under Sections 279 & 304(A) of IPC to suffer R.I. for three months and to pay a fine of Rs.2,000/- in default of payment to suffer further S.I. for one month. The petitioner is directed to surrender and to serve out the sentence immediately.