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2012 DIGILAW 362 (GAU)

Abhijit Konwar v. State of Assam

2012-03-20

UTPALENDU BIKAS SAHA

body2012
JUDGMENT U.B. Saha, J. 1. The instant criminal revision petition is filed by the petitioner, conductor of the offending vehicle under Section 397 read with Section 401 Cr PC, 1973 challenging the judgment and order dated 25.02.2004 passed by the learned Sessions Judge, Sivasagar in Criminal Appeal 47 (3) of 2002 whereby and whereunder learned Sessions Judge while setting aside the order of conviction under Section 279 IPC, upheld the conviction under Section 304(A) IPC and reduced the sentence of RI from six months to three months and also set aside the order to pay a fine of Rs. 2,000/- passed by the learned SDJM, Sonari vide his judgment dated 24.06.2002 in GR Case No. 307 of l996. Heard Mr. P Bora, learned counsel for the petitioner as well as Mr. BS Sinha, learned Addl. PP for the State. 2. Prosecution case in brief is as follows:-That, the deceased Jagot Phukan boarded the bus being No. ASN 7727 at a place known as Mahmora in which the present accused petitioner was the conductor. After covering a distance of hardly about one and half kilometer, the deceased suddenly fell down from the bus and was run over by the said bus and died on the spot. After the accident, the bus was stopped and hearing the sound of the accident people residing nearby the place of the occurrence also rushed to the place of accident. Passengers of the bus also got down and all of them saw that one person was run over by the said bus. Thereafter, the driver was advised to go to the police station and accordingly the driver went to Kakatibari Police Station which was situated at a little distance. Soon after the accident, PW 4 Bhupen Borgohain, one of the nephew of the deceased, went to the police station and lodged an FIR which was registered as Kakatibari PS Case No. 40 of 1996 under Sections 279/304(A)/336 IPC. On receipt of the FIR the police investigated the matter and ultimately filed charge sheet under Section 279/304(A) IPC against the driver of the said vehicle, namely, Sri Dinanath Tipomia and the present petitioner, Abhijit Konwar. To prove its case, the prosecution examined as many as 8 witnesses including the official witnesses and the defence case before the trial court was of total denial. 3. To prove its case, the prosecution examined as many as 8 witnesses including the official witnesses and the defence case before the trial court was of total denial. 3. On consideration of the evidence on record, the learned trial court examined the accused persons including the present petitioner under Section 313 Cr PC and finally after hearing the parties convicted both the accused persons under Section 279/304(A)/ 34 IPC and sentenced each of them to undergo RI for three months with a fine of Rs. 1,000/- i.e. to undergo SI for one month under the first count and RI for six months with a fine of Rs. 2,000/- i.e. to undergo SI for two months under the second count. Both the sentences would run consecutively. 4. Being aggrieved by the judgment of the learned trial court both the accused persons preferred appeal before the learned Sessions Judge, Sivasagar which was registered as Criminal Appeal No. 47(3) of 2002 and the learned Sessions Judge after hearing the parties and considering the evidence on record while upheld the judgment of the learned trial court so far the conviction and sentence of the driver, Dinanath Tipomia, but modified the order of conviction relating to the conductor, Abhijit Konwar, i.e. the petitioner herein, by way of setting aside the order of conviction under Section 279 IPC, and upholding the conviction under Section 304(A) IPC and the sentence was also modified, as stated supra. 5. Being aggrieved by the aforesaid judgment of the learned Sessions Judge, Sivasagar, the petitioner preferred the instant criminal revision petition. 6. Mr. Pran, learned counsel for the petitioner submits that both the trial court as well as the appellate court failed to consider the facts on record and came to a wrong conclusion regarding the involvement of the present petitioner in the alleged offence. He further contended that the failure to discharge the duties by a conductor while the offending vehicle is moving cannot and would not come within the purview of the penal offence, rather, the same can be treated as tortious liability. He further submits that none of the prosecution witnesses even named the petitioner herein while deposing their statements before the trial court. He further submits that none of the prosecution witnesses even named the petitioner herein while deposing their statements before the trial court. According to him, except PW 6, no other passenger of the offending vehicle was examined by the investigating agency to prove as to whether it was the conductor who allegedly allowed the deceased passenger to travel by way of standing near the door of the offending vehicle or the deceased himself flouted the direction of the conductor and stood near the door of the vehicle. He finally contended that merely because a passenger fell down from the bus while boarding the bus, no presumption of negligence can be drawn either against the driver of the bus or against the conductor of the bus, as the possibility of falling down of a passenger from a moving vehicle, either due to his own negligence or to the negligence of others, is to be specifically proved by the prosecution. To show that the deceased passenger might have fallen down due to his own wrong and if such wrong is committed by him, that would not come within the purview of negligence, as stated in Section 304(A) IPC, he placed reliance on a decision of the Apex Court in Mohammed Aynuddin @ Miyam vs. State of Andhra Pradesh, (2000) 7 SCC 72 wherein the Apex Court while considering the offence of rash and negligent driving noted inter alia, that:- What is the culpable negligence on the part of the bus driver in the above accident? A passenger might fall down from a moving vehicle due to one of the following causes: it could be accidental; it could be due to the negligence of the passenger himself; it could be due to the negligent taking-off of the bus by the driver. However, to fasten the liability with the driver for negligent driving in such a situation there should be the evidence that he moved the bus suddenly before the passenger could get into the vehicle or that the driver moved the vehicle even before getting any signal from the rear side. 7. Relying on the aforesaid observation of the Apex Court, Mr. Pran further urges that to fasten a person with the liability for negligent driving, the Court has to see what was the relevant situation at the time of alleged incident and what evidence is available against the accused person. 7. Relying on the aforesaid observation of the Apex Court, Mr. Pran further urges that to fasten a person with the liability for negligent driving, the Court has to see what was the relevant situation at the time of alleged incident and what evidence is available against the accused person. In the instant case, the prosecution did not adduce any evidence through its witnesses that the petitioner-conductor was negligent in discharging his duties. Thus, no presumption of negligence can be drawn against him for the alleged offence. 8. He finally contended that a vehicle being driven at a speed of 90 Kmph in an empty road may not amount to rash and negligent driving but a vehicle being driven in a crowded area at a speed of 25 Kmph 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 negligence of the conductor is to be proved only by the people who were the passengers in the offending vehicle at the time of the alleged offence and in this case except PW 6, none of the passengers of the offending vehicle were examined and cited as witnesses. 9. Mr. Sinha while supporting the judgment of the learned appellate court, would forcibly contend that the learned appellate court did not commit wrong in view of the evidence of PW 6, who has specifically stated in his deposition that the deceased passenger was standing near the door of the bus just before the accident and the bus was on excessive speed and there was no shutter on the door for which one could fall He further submits that the deceased passenger died due to sheer negligence of the conductor, petitioner herein, as it was his duty not to allow any passenger in a moving vehicle to stand near the door. 10. Before dealing with the submission of the learned counsel for the parties, it would be proper for this Court to discuss about the salient portion of the evidence of PW 6 as other witnesses are neither the passenger of the bus, nor eye witness of the alleged incident. 11. 10. Before dealing with the submission of the learned counsel for the parties, it would be proper for this Court to discuss about the salient portion of the evidence of PW 6 as other witnesses are neither the passenger of the bus, nor eye witness of the alleged incident. 11. PW 6, Biswajit Hazarika, a passenger of the offending vehicle in his deposition stated that the deceased, Jagot Phukan boarded the bus, "Monikanchan" as a passenger and was standing near the door of the said bus just before the accident. He also stated that the bus was at excessive speed and there was no shutter near the door for which one could fall. He also stated that though in the bus some seats were vacant but the deceased passenger on his own stood near the door. 12. In the case of a vehicular accident, it is ordinarily difficult to get any witness who would be in 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. 13. In Paresh Chandra Barman Vs. State of Tripura, 2011 (5) GLT 687 while this Court was dealing with a case relating to an offence under Section 279/304(A) IPC noted, inter alia, that: 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. 14. In the instant case, the bus was stopped at a place which was not earmarked as a bus-stop due to the raising of voice by the passengers in the vehicle who cried out "stop, stop the vehicle" and fact remains that the driver also slopped the vehicle as alarmed by the passengers. 15. 14. In the instant case, the bus was stopped at a place which was not earmarked as a bus-stop due to the raising of voice by the passengers in the vehicle who cried out "stop, stop the vehicle" and fact remains that the driver also slopped the vehicle as alarmed by the passengers. 15. On proper scrutiny of the evidence of PW 6 it would be very difficult to say whether the deceased passenger was standing near the door on his own even after being cautioned by the conductor, petitioner herein, or the conductor allowed him to stand there. 16. It appears from the judgment of the learned Appellate court that the learned Appellate Court while disbelieving a part of the evidence of the prosecution witnesses relating to an offence under Section 279 IPC has believed the other part of the evidence relating to an offence committed under Section 304(A)/34 IPC only relying upon the evidence of PW6 and ultimately set aside the order of conviction under Section 279 IPC so far the petitioner is concerned and while upholding the conviction under Section 304(A)/34 IPC, set aside the order of fine reducing the sentence to three months instead of six months so far the present petitioner is concerned. 17. As it appears from the record that the prosecution failed to establish how and in what manner the conductor of the offending vehicle, i.e. petitioner herein committed negligence thereof, therefore it would be very difficult to fasten him with the liability of committing an offence even under Section 304(A) IPC read with Section 34 IPC and if the offence under Section 304(A) is not proved by the prosecution, it would be redundant on the part of the Court to fasten the present petitioner with the liability of committing offence even under Section 34 IPC, as to attract Section 34 IPC two postulates are indispensable: (1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person. (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should be in furtherance of the common intention of all such persons. Here in the instant case, the prosecution also failed to prove any intention of committing the offence by the petitioner, far to common intention. 18. (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should be in furtherance of the common intention of all such persons. Here in the instant case, the prosecution also failed to prove any intention of committing the offence by the petitioner, far to common intention. 18. In view of the above, there is no other alternative before this Court except to provide the benefit of doubt to the petitioner. Thus, the order of the learned Sessions Judge is set aside, so far as the petitioner is concerned. In the result, the revision petition is allowed and accordingly disposed of. Petition allowed.