Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 962 (GAU)

Sadhan Bhattacharjee v. State of Tripura

2011-12-07

S.C.DAS

body2011
1. This revisional application under section 397 read with section 401 of Cr.PC is directed against the judgment, dated 21.5.2004, passed by learned Addl. Sessions Judge, North Tripura, Dharmanagar, in Criminal Appeal No. 3(1)/2004, whereby and where under the learned Addl. Sessions Judge affirmed the judgment and order of conviction and sentence, dated 26.2.2004, passed by learned SDJM, Dharmanagar, North Tripura in Case No. G.R. 132/2001. The petitioner was found guilty of committing offence punishable under sections 279, 337 and 304A of IPC. 2. Heard learned counsel, Mr. P.K. Biswas, assisted by learned counsel, Mr. P. Majumder, for the petitioner and learned Special Public Prosecutor, Mr. R.C. Debnath, for the State-respondent. 3. The brief fact, leading to the institution and trial of the criminal case, against the accused-petitioner, is that on 24.5.2001, at about 9.00 p.m. the informant, Sri Kami Das (PW9) along with some others namely, Akhil Roy (PW8), Pran Kanta Das (PW1), Raju Das (PW7) and another Raich Ali boarded a Truck, vehicle bearing No.AS-25-B-5781, along with their goods (Jackfruit, Pineapple and Litchi, etc.,) for a journey to Badarpur/Silchar, Assam. The accused-petitioner, Sri Sadhan Bhattacharjee was driving the vehicle. Besides the petitioner, there was another second driver and an assistant in the vehicle. The accused petitioner from the very beginning was driving the vehicle rashly and negligently and with a very high speed, even defying the request of the informant and other witnesses. At about 12.30 p.m. of the night, the vehicle met with an accident at a place named Lalchhara and it went out of the road fell in the road side and as a result, the informant and other passengers sustained severe injuries and they were taken to Panisagar Hospital where one of the passengers namely, Raich Ali died. It has been alleged that the accident occurred for rush and negligent driving of vehicle by the accused-petitioner. 4. Based on the FIR, lodged by PW9, Officer-in-charge of Panisagar Police Station registered Panisagar PS Case No. 24/2011 under sections 279, 337 and 304A of IPC and an Investigation was taken up. In course of Investigation the vehicle was examined mechanically by the Motor Vehicle Inspector and report was collected. Injury report of all the injured passengers, who were carrying goods, was also collected from hospital. In course of Investigation the vehicle was examined mechanically by the Motor Vehicle Inspector and report was collected. Injury report of all the injured passengers, who were carrying goods, was also collected from hospital. Post mortem was done over the dead body of Raich Ali and the report was collected by the I.O. The vehicle was seized in course of Investigation and the documents of the vehicle along with the driving licence of the accused-petitioner was also seized on production by the owner of the vehicle namely, Shishu Kumar Saha. The accused-petitioner was arrested and subsequently, released on bail, on 26.5.2001. On completion of Investigation, I.O. submitted charge sheet against the accused-petitioner for commission of offence punishable under sections 279, 337 and 304A of IPC. Cognizance was taken on the basis of police report and in due course of conclusion of trial, learned SD JM, Dharmanagar, found the accused-petitioner guilty of offence under sections 279, 337 and 304A of IPC and sentenced him as aforesaid. The accused-petitioner challenged the judgment and order of conviction and sentence in the court of Additional Sessions Judge, Dharmanagar and by the impugned judgment and order, dated 21.5.2004, learned Additional Sessions Judge affirmed the judgment and order of conviction and sentence, passed by the learned SDJM, Dharmanagar and dismissed the appeal, hence this revisional application. 5. While exercising power of revision, the revisional court is to see the correctness, legality and propriety of an order, passed by inferior court and to see the regularity of the proceeding before such inferior court. The revisional court is not required to reassess or re-appreciate the evidence on record, which has already been considered by the trial court and the appellate court. The revisional court should not interfere with the concurrent finding of fact given by the trial court and the appellate court unless it is shown apparently that the finding is perverse and without legal evidence. 6. Keeping in mind the above principles, let us see the points raised by the learned counsels in support and against the revisional application : The first point argued by learned counsel, Mr. Biswas, appearing for the petitioner, is that rash and negligent driving of the vehicle has not been established. Mere driving with a high speed cannot be termed as a rash and negligent driving. Biswas, appearing for the petitioner, is that rash and negligent driving of the vehicle has not been established. Mere driving with a high speed cannot be termed as a rash and negligent driving. Referring to the depositions of PWs 1, 7, 8 and 9 and the time spent for the journey of the vehicle from Kumarghat to place of accident, learned counsel submits that the allegation of rash and negligent driving is unfounded and, therefore, the finding of the trial court and the appellate court were wrong and should be interfered. On the other hand, learned Special Public Prosecutor, Mr. Debnath, appearing for the State-respondents submits that all the witnesses made categorical statements that the accused-petitioner was driving the vehicle rashly and negligently with excessive speed, even defying the request of the witnesses and the accident occurred in a mild turning of the Assam-Agartala road, which is known to be very spacious road and the vehicle went out of the road and fell in the road side which suggest that only for rash and negligent driving of the vehicle the accident has occurred and nothing else. 7. It is an undisputed fact that the vehicle met with an accident and it fell on the left side of the road and as a result, PWs 1, 7, 8 and 9 and Raich Ali, all suffered injuries. The vehicle was seized by the I.O. on the spot in the position as it was lying in the road side and was examined by the Motor Vehicle Inspector. Ext.5 is the report of the Motor Vehicle Inspector which says that the vehicle had no mechanical disorder and he has opined that the accident occurred not for any mechanical disorder of vehicle No.AS-25-B-5781 (Truck). The accused did not adduce any defense evidence. In the statement of the accused while examination under section 313 of Cr.PC the accused explained nothing as to why the accident had occurred and the vehicle went off the road and fell in the road side. PWs 1, 7, 8 and 9, who are eye witnesses of the accident and had no personal animosity with the accused made categorical statements that the accused was driving the vehicle with excessive speed, rashly and negligently even defying the their request. Referring to the cross-examination of the witnesses learned counsel Mr. PWs 1, 7, 8 and 9, who are eye witnesses of the accident and had no personal animosity with the accused made categorical statements that the accused was driving the vehicle with excessive speed, rashly and negligently even defying the their request. Referring to the cross-examination of the witnesses learned counsel Mr. Biswas submits that the vehicle started from Kumarghat at 9.00 p.m. The distance between Kumarghat and the place of accident is about 20/25 km. The vehicle reached at Uptakhali at about 12.00 p.m. and Uptakhali to place of accident is one and half km. The accident occurred at 12.30 p.m. of the night. So, if the time is taken into consideration, it cannot be said that the vehicle was driven with high speed. The vehicle started from Kumarghat at 9.00 p.m., so far the witnesses made categorical statement, but it appears that the vehicle stopped at Uptakhali and from Uptakhali it again started at about 12.00 p.m., which means the vehicle was not continuously running from Kumarghat and during a time-span of three and half hours it only run 20/25 km. can in no way be believed. In the absence of any cogent evidence to that effect it will be totally unfair to hold that the vehicle was not driven rashly or negligently, for the reason that during a time-span of 31/2 hrs. the vehicle only run 20/25 kms. The words 'rash' and 'negligent' has not been defined in the Code. The Judgment Laws has now well defined the same. A 'rash' act is an over-hasty act done without due deliberation and caution. 'Negligent' 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 case in hand, the accused was on the steering of the vehicle. Admittedly, the vehicle met with an accident and fell in the road side. It had no mechanical disorder. The witnesses, who were mere passengers, carrying their goods in the vehicle, stated that it was running with high speed and the driver was driving it rashly and negligently. So from the facts and circumstances a presumption is to be drawn that definitely the driver was driving the vehicle rashly and negligently which has occasioned the accident and I find no merit in the argument advanced by the learned counsel for the petitioner. 8. So from the facts and circumstances a presumption is to be drawn that definitely the driver was driving the vehicle rashly and negligently which has occasioned the accident and I find no merit in the argument advanced by the learned counsel for the petitioner. 8. The next point argued by learned counsel Mr. Biswas, is that owner of the vehicle has not been examined and, therefore, identity of the accused is doubtful and the accused-petitioner is entitled to get benefit of doubt. Learned Special Public Prosecutor, Mr. Debnath, submits that all of the witnesses identified the accused in the dock, at the time of trial and his driving license was seized by I.O., on production by the owner and he surrendered before the Police Station, produced before Court and subsequently, released on bail and the plea taken during revision petition that identity was not established should not be considered and should be rejected at the threshold. I have considered the submissions of learned counsel of both side and the evidence and materials on record. The FIR of the case, lodged by, PW9, is very specific and clear. As it happens in all ordinary motor accident cases, the informant could not name the accused-driver in the FIR. It is the common knowledge that no passenger ordinarily record the name and address of the driver of a vehicle, while boarding the vehicle and entertain the journey. This case is also not an exception to such general perception. Record shows that after the vehicle was seized the owner of the vehicle produced all documents including the driving license of the accused-petitioner and those were seized by the I.O. Accused surrendered and he was arrested and released on bail from the court of learned SDJM. Ail the eye witnesses of the accident, i.e., PWs 1, 7, 8 and 9, identified the accused in the dock. PW7 identified him by name and face. Identity of the accused has not been challenged in any manner in the evidence on record. In his statement recorded, while cross-examination, under section 313 of Cr.PC also, the accused stated nothing regarding his identity. Under such circumstances, non-examination of the owner of the vehicle is found to be of no consequence on the prosecution case. I, therefore, find no reason at all to interfere of the concurrent finding of fact in respect of identity of the accused. 9. Learned counsel, Mr. Under such circumstances, non-examination of the owner of the vehicle is found to be of no consequence on the prosecution case. I, therefore, find no reason at all to interfere of the concurrent finding of fact in respect of identity of the accused. 9. Learned counsel, Mr. Biswas, also drawn my attention to some other insignificant discrepancies here and there in the evidence on record which do not go to the root of the matter and shake the basic version of the witnesses and, therefore, is not attached with any importance. In all criminal cases prosecution evidence does suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is, whether those inconsistencies and discrepancies etc. go to the root of the matter or pertain to insignificant aspect thereof. In the former case, the defense may be justified in seeking benefit in all the incongruities obtaining the evidence. In the later, however, no such benefit may be available to it. 10. Learned counsel, Mr. Biswas, further submits that there is nothing on record that the accused was guilty of any such offence before or after the present case and the trial court as well as the appellate court considering the facts and circumstances would afford the benefit of section 360 of Cr.PC to the accused and non-consideration of that aspect was a serious wrong done by the trial court and the appellate court and prayed for considering the same. I have considered the submission of the learned counsel for the petitioner. Road traffic accidents taking away lives of lakhs of people every year. The hon'ble Apex Court in the case of Dalbir Singh v. State of Haryana, AIR 2000 SC 1667 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. 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. In view of the above, the petitioner does not deserve a consideration of benefit under section 360 of Cr.PC. However, as I find, the accident occurred on 25.5.2001 and the accused suffered a long mental suffering from the date of accident till today. Taking into consideration the time already passed since the accident occurred, I think that rigorous imprisonment for three months and a fine of Rs.2,000 only for commission of offence punishable under sections 279, 227 and 304(A) of IPC shall meet the ends of justice. Accordingly, the petitioner is sentenced to suffer rigorous imprisonment for 3(three) months and pay a fine of Rs.2,000 (Rupees two thousands) only, in default, suffer further simple imprisonment for one month. 12. The revisional application stands dismissed with the modification of sentence, as aforesaid. 13. The petitioner is directed to surrender and to serve out the sentence immediately. 14. Send back the LC records along with a copy of this judgment.