Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 658 (GAU)

Madhu Sudhan Debnath v. State of Tripura

2012-06-02

SUBHASIS TALAPATRA

body2012
JUDGMENT Subhasis Talapatra, J. 1. By this petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 the judgment and order dated 24.07.2004 as passed by the learned Sessions Judge, West Tripura, Agartala in Criminal Appeal No. 46(3) of 2001 affirming and upholding the judgment and order dated 29.06.2001 as passed by the learned Judicial Magistrate 1st Class, Agartala, West Tripura, in Case No. G.R.365/1999, convicting the petitioner herein under Section 279 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for three months and also convicting him under Section 304A of IPC and sentencing him to suffer rigorous imprisonment for one year has been put under challenge. The prosecution case as available from the records in brief is that, on 13.05.1999 at about 7.00 am, Satish Debnath while going to Krishna Tally, Nalgaria was dashed by one vehicle bearing Registration No. TR-01-2220 which was proceeding with a high speed. Said Satish Debnath was immediately shifted to G.B. Hospital for treatment of the grievous injuries that he received in the said accident. After few days of the occurrence the matter was informed to the Ranirbazar Out Post, which forwarded the same to the Jirania Police Station. On the basis of the said complaint, Jirania P.S. Case No. 34/1999 was registered under Sections 279 and 338 of IPC. After the said case was registered, Satish Debnath succumbed to his injuries and on obtaining leave from the court, Section 304A of IPC was added for the purpose of investigation. On completion of investigation, the charge sheet was filed and the petitioner having been examined under Section 251 of Cr. P.C. pleaded not guilty and claimed to be tried. 2. It appears that during trial as many as 12(twelve) witnesses including the Investigating Officer were examined by the prosecution to establish the substance of accusation. After evidence was recorded and argument was heard the learned trial court on appreciation of the evidence returned the finding of conviction against the petitioner under Section 279 and 304A of IPC. The petitioner was sentenced to suffer RI for three months for the offence committed under Section 279 of IPC and RI for one year for the offence committed under Section 304A of IPC. 3. The petitioner was sentenced to suffer RI for three months for the offence committed under Section 279 of IPC and RI for one year for the offence committed under Section 304A of IPC. 3. Being aggrieved by the said judgment and order dated 29.06.2001 as passed by the learned Judicial Magistrate 1st Class, Agartala, West Tripura, in G.R. No. 365/1999, an appeal under Section 374 of Cr. P.C. was filed by the petitioner in the Court of the Sessions Judge, West Tripura, Agartala, being Criminal Appeal No. 46(3)/2001. After hearing, the learned Sessions Judge, West Tripura, Agartala, dismissed the appeal, affirming the judgment and order dated 29.06.2001 as passed by the learned Judicial Magistrate 1st Class, Agartala, West Tripura. To question that judgment dated 24.07.2004 as passed by the learned Sessions Judge, West Tripura, Agartala, in Criminal Appeal No. 46(3)/2001, this petition has been filed. 4. Mr. P.K. Biswas, learned counsel appearing for the petitioner submitted with sufficient vehemence that there is no component of rash and negligent driving in the evidence as laid by the prosecution. The learned appellate court failed to exercise its jurisdiction as conferred upon it under Section 374 read with Section 386 of Cr. P.C. In support of his contention, Mr. Biswas, learned counsel for the petitioner relied a decision in State of Karnataka vs. Satish, reported in (1998) 8 SCC 493 , where the Apex Court held : Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur." There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case. In the same case, the Apex Court further observed:- "There being no evidence on the record to establish "negligence" of "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. 5. On the other hand, Mr. D. Sarkar, learned Public Prosecutor appearing for the State seriously contested the proposition as advanced by Mr. P.K. Biswas, learned counsel for the petitioner by contending that the evidence is overwhelming to establish the substance of accusation of rashness. He categorically submitted that if the evidence is surveyed it would be apparent without any ambiguity or without any shred of doubt that the driver of the offending vehicle was driving the vehicle in such a speed that he lost control of the vehicle. This component itself is indicative of rashness. No more or further evidence is required to be established by the prosecution. 6. To appreciate the rival contentions, it is necessary that the evidence as laid by the prosecution during the trial be surveyed. One Kamalendu Bhowmik appearing as PW.1 stated that he saw one Commander Jeep bearing No. TR-01-2220 was coming from east to west with high speed. He also stated that he saw that the said vehicle dashed one pedestrian and ran away. On seeing such occurrence he reached the spot and found that the said pedestrian was lying unconscious with injuries. At that time, Kanu and Dilip came with a vehicle bearing No. TRT-2593 and took the injured person by that vehicle to the G.B. Hospital. He also stated that he saw that the said vehicle dashed one pedestrian and ran away. On seeing such occurrence he reached the spot and found that the said pedestrian was lying unconscious with injuries. At that time, Kanu and Dilip came with a vehicle bearing No. TRT-2593 and took the injured person by that vehicle to the G.B. Hospital. Later on he heard that Satish Debnath succumbed to the injuries but he could not identify who was driving the vehicle at the material point of time. In the cross examination, he categorically stated that "Soon after the incident Dilip Debnath and Kanu came to the spot after about 5/10 minutes." 7. The prosecution produced one Uttam Debnath as PW.2 in support of their case, who stated that after hearing hue and cry he came out of his house and found that his maternal uncle namely, Satish Debnath was being taken in a vehicle bearing No. TRT-2593 by Kanu and Dilip. Being asked, they told him that one Commander Jeep bearing No. TR-01-2220 dashed his maternal uncle. He further stated that his maternal uncle namely, Satish Debnath died in the G.B. Hospital after about one month. 8. One Nagendra Debnath, who filed the ejahar before the police station which was marked as Exbt.P/1, appearing as PW.3, stated that he lodged the ejahar which was written by someone as per his dictation. In his statement he did not mention the number of the vehicle but in the ejahar (Exbt.P/1) it is found that he mentioned that the vehicle bearing No. TRT-2593 dashed Satish Debnath. P.W.3 stated that since he was busy with the treatment of his brother-in-law namely, Satish Debnath, he could not lodge the ejahar in time. 9. One of the persons namely, Sri Dilip Debnath as named by PW.1, deposed before the court as PW.4 and stated that he saw one Commander Jeep bearing No. TR-01-2220 coming from eastern side with high speed and dashed a pedestrian in front of the house of Haripada Debnath. At that time, the vehicle stopped for a moment and after hue and cry it fled away. The place of occurrence was at a very short distance from where he was. He stated that the Commander Jeep bearing No. TRT-2593 which was coming from the eastern side was stopped by them and shifted the injured to the G.B. Hospital. At that time, the vehicle stopped for a moment and after hue and cry it fled away. The place of occurrence was at a very short distance from where he was. He stated that the Commander Jeep bearing No. TRT-2593 which was coming from the eastern side was stopped by them and shifted the injured to the G.B. Hospital. The PW.4 stated further that he came to know that the injured died in the G.B. Hospital. He also stated that the petitioner was driving the vehicle at the relevant point of time. In cross-examination, he stated that he did not find the alleged vehicle on the spot when he reached there. 10. One Kanu Debnath who was examined as PW.5 by the prosecution, stated that one Jeep bearing No. TR-01-2220 was coming from the eastern side with high speed and dashed Satish Debnath. For a moment the Jeep stopped and thereafter the vehicle fled away. They arranged shifting of the injured to the G.B. Hospital in the vehicle bearing No. 2593. He stated that the vehicle was being driven by the petitioner. The PW.5 stated that he disclosed the number of the vehicle to the Investigating Officer while he was being examined by the Investigating Officer and the statement is being recorded under Section 161 of Cr. P.C. but no such statement was found in his previous statement as referred. 11. PW.6 namely, Sri Swapan Debnath is an inquest witness and he did not divulge anything of material importance. Similarly, PW.7 namely, Sri Sukhomay Shil is the Recording Officer and he also did not divulge anything of material importance. 12. PW.8 namely, Sri Pradip Kr. Shil was the Assistant Sub-Inspector of Police at East Agartala Police Station, who deposed that as per instruction he proceeded to the G.B. Hospital on 14.06.1999 to prepare the inquest report of the deceased, Satish Debnath. He also did not divulge anything more of material importance. 13. PW.9 namely, Sri Gopal Chandra Ghosh, a Constable at the East Agartala Police Station stood as the witness to the inquest and he accompanied the PW.8. He also handed over the dead body of the deceased for post mortem examination. 14. Dr. He also did not divulge anything more of material importance. 13. PW.9 namely, Sri Gopal Chandra Ghosh, a Constable at the East Agartala Police Station stood as the witness to the inquest and he accompanied the PW.8. He also handed over the dead body of the deceased for post mortem examination. 14. Dr. Ranjit Kumar Das, who conducted the post mortem examination on the dead body of the deceased, deposed as PW.10, who stated that the cause of death to the best of his knowledge and belief is septicaemic shock consequent head injury caused by blunt force. He also stated that the injuries are anti mortem in nature and could be seen in road traffic accident. Apart this, no material of substance was divulged by the said witness. 15. One Sub-Inspector of Police namely, Sri Chabir Ahmed deposed as PW.11 and stated that he was entrusted with the Jirania P.S. Case No. 34/1999 for investigation on 20.05.1999. On taking up the investigation, he prepared the hand-sketch map and examined the complainant of the case under Section 161 of Cr. P.C. It is stated by the Investigating Officer that while recording the statement under Section 161 of Cr. P.C., the complainant stated that in the ejahar he had wrongly mentioned the number of the vehicle as TRT-2593 but the vehicle involved in the accident was having the Registration No. TR-01-2220. On 23.05.1999 he seized the vehicle No.TR-01-2220 by preparing the seizure list along with the relevant documents of the seized vehicle. Thereafter, the driver of the vehicle, namely, Sri Madhusudan Debnath, the petitioner herein was arrested by him. He also stated that on the death of Satish Debnath, he prayed before the Chief Judicial Magistrate, West Tripura, Agartala for adding Section 304A of IPC. For his transfer to a different station, he could not complete the investigation. 16. Sri Benulal Kar, another Sub-Inspector of Police posted at Ranirbazar Out Post, deposed before the court as PW.12. He did not state anything of relevance except that he submitted the charge sheet after collecting the post mortem report against the petitioner. 17. For his transfer to a different station, he could not complete the investigation. 16. Sri Benulal Kar, another Sub-Inspector of Police posted at Ranirbazar Out Post, deposed before the court as PW.12. He did not state anything of relevance except that he submitted the charge sheet after collecting the post mortem report against the petitioner. 17. What is apparent on appreciation of the evidence that none of the witnesses has stated anything regarding the role of the pedestrian at the time of the accident, whether he was crossing the road or he was in the pedestrian strip or he was waiting for the vehicle on the road etc. Only a bald statement is available to the effect that the vehicle involved in the accident was coming with high speed and dashed the pedestrian. All the witnesses who claimed to have witnessed the occurrence replicated the same statement. The PWs. 4 and 5 only stated that they have identified the petitioner as driving the vehicle though their presence in the place of occurrence was negated by PW.1 at the cross-examination by stating that after about 5/10 minutes of the incident Dilip Debnath and Kanu came to the spot. But the claim of the PWs. 4 and 5 that they had witnessed the occurrence from a different place and from a very short distance is thus shrouded with doubt as there was no re-examination of that statement by the prosecution as recorded by the trial court. As such, in view of this vital contradiction, the required elements for proving the substance of accusation under Sections 279 and 304A of IPC have been squandered by the prosecution. 18. In view of the decision of the Apex Court in Satish (supra), it can be said that the mere proof of 'high speed' is not sufficient to prove rashness and negligence to drive home the accusation under Sections 279 and 304A of IPC. The Supreme Court in no unequivocal terms laid down that it is for the prosecution to bring on record material to establish as to what it meant by 'high speed' in the facts and circumstances of the case. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In absence of any material on record, no presumption of rashness or negligence can be drawn by invoking the maxim res ipsa loquitur. There being no evidence on record to establish rashness or negligence of driving of the vehicle on the part of the petitioner, it cannot be said that the judgment of conviction as returned by the trial court and as affirmed by the appellate court is legal. Moreover, what PW.11, the Investigating Officer has deposed that the PW.3 had stated that he wrongly mentioned in the ejahar the number of the vehicle as TRT-2593 but the vehicle involved in the accident is TR-01-2220 got no support from PW.3. As such this fatal dislocation having not been proved, the investigation against the vehicle No. TR-01-2220 cannot be held regular. 19. On aggregate appreciation of the evidence as laid by the prosecution, this court is of the opinion that there is no evidence whether the alleged accident occurred for negligence and rashness of the driver or the same had occurred for negligence of the pedestrian namely, Satish Debnath who died or for any mechanical failure as it is noticed that the Motor Vehicle Inspector was not examined by the prosecution. Apart that, there is no evidence of negligence or rashness. Mere mentioning of 'high speed' in view of Satish (supra) cannot be held to be the legal evidence of negligence and rashness. 20. Therefore, the findings of conviction as passed by the trial court and affirmed by the appellate court cannot sustain. Hence, the finding of conviction is interfered with and is set aside. Since this court has interfered the finding of conviction, the order of sentence has to be quashed. Accordingly, the same is quashed. For the reasons as stated above, this petition stands allowed and the petitioner as consequence thereof is acquitted from the substance of accusation under Sections 279 and 304A of IPC. The sureties, if any, are discharged from their obligations. Send down the LCRs forthwith. Petition allowed.