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2012 DIGILAW 81 (GAU)

Haridhan Biswas v. State of Tripura

2012-01-20

SWAPAN CHANDRA DAS

body2012
JUDGMENT The Hon'ble Mr. Justice S.C. Das 1. This criminal revision petition U/S 397 read with Section 401 of Cr.P.C., is directed against the judgment and order dated 31.05.2004, passed by learned Addl. Sessions Judge, West Tripura, Agartala, in Criminal Appeal No.8 (1)/2001, whereby and whereunder learned Addl. Sessions Judge upheld the judgment and order of conviction and sentence, dated 12.01.2001, passed by learned Chief Judicial Magistrate, West Tripura, Agartala, in case No. G.R. 911 of 1997. Learned Chief Judicial Magistrate found the petitioner guilty of committing offence punishable U/S 304(A) and sentenced him to suffer RI for 1(one) year and also found him guilty of committing offence under Section 279 of IPC and sentenced him to suffer RI for 3(three) months. 2. Heard Learned Counsel, Mrs. N. Guha, appearing for the petitioner and learned Spl. P.P., R.C. Debnath for the State respondent. 3. The revisional court is to see the correctness, legality and propriety of the judgment/order passed by the inferior court and the regularity of the proceeding before such court. Ordinarily, revisional court is not required to enter into the evidence and to re-appreciate it, unless it is alleged and shown apparently that the finding on any particular point was perverse or beyond the evidence and materials on record. 4. I have examined the judgment and order of conviction of sentence dated 12.01.2001, passed by the learned Chief Judicial Magistrate, in case No. G.R. 911 of 1997, and also the impugned judgment dated 31.05.2004, passed by learned Addl. Sessions Judge, in Criminal Appeal No. 8 (1) of 2001. I find learned Chief Judicial Magistrate as well as learned Addl. Sessions Judge appreciated the evidence on record in proper direction and arrived at a finding of guilt of the accused petitioner. 5. Prosecution case was that on 02.11.1997 at about 16.20 hrs, Sanjoy Debnath, aged about four years, son of informant, Shyamal Debnath(PW.1) was knocked down by a speeding vehicle, bearing No. TRT 1379(Jeep), and as a result, Sanjoy Debnath received severe injury and was shifted to G.B. hospital, where he was declared dead. 5. Prosecution case was that on 02.11.1997 at about 16.20 hrs, Sanjoy Debnath, aged about four years, son of informant, Shyamal Debnath(PW.1) was knocked down by a speeding vehicle, bearing No. TRT 1379(Jeep), and as a result, Sanjoy Debnath received severe injury and was shifted to G.B. hospital, where he was declared dead. On the basis of FIR, lodged by PW.1, Shyamal Debnath, the father of the deceased boy, East Agartala P.S. case No. 189/1997 was registered U/S 279/304(A) of IPC, and on investigation, police submitted charge sheet against the accused petitioner for commission of offence punishable U/S 279/304(A) of IPC, and accordingly, cognizance was taken by learned Chief Judicial Magistrate and trial was taken up against the accused. The accused was examined U/S 251 of Cr.P.C. to which he pleaded not guilty, and in the course of trial, prosecution examined as many as 9(nine) witnesses, and also proved the material documents, including Motor Vehicle Inspector's report and the post-mortem report of the deceased boy. 6. The trial court, considering the evidence on record, found the accused guilty and convicted and sentenced him accordingly as aforesaid, which has been affirmed by the appellate court. 7. Learned Counsel, Mrs. Guha has submitted that the identity of the accused was not established as driver of the vehicle beyond reasonable doubt, and therefore, the judgment and order of conviction and sentence, passed by the trial court and the judgment of the appellate court was wrong, and therefore, in revision, this Court should interfere in the judgment. Learned Spl. P.P., on the other hand, has submitted that the accused himself surrendered at P.S., being produced by the owner of the vehicle along with the offending vehicle and the vehicle was released on bail and the accused was forwarded to the court. All the documents, including the driving licence of the accused, were seized. The owner of the vehicle also submitted a written declaration that the accused was the driver of the vehicle at the time of the accident and that document has been marked as Exbt.P.5, and under such circumstances, there is no scope to interfere in the judgment passed by the trial court. 8. The prosecution case is that the speeding vehicle knocked down the infant on the roadside. The rash and negligent driving of the vehicle has been established on the oral evidence of the witnesses. 8. The prosecution case is that the speeding vehicle knocked down the infant on the roadside. The rash and negligent driving of the vehicle has been established on the oral evidence of the witnesses. While the speeding vehicle knocked down the boy and left the place, it was not possible for the witnesses to identify the driver of the vehicle. Therefore, disclosure of the identity of the driver by the owner has been taken into consideration with the other attending circumstances. Learned Counsel, Mrs. Guha, referring to the evidence of PW.6, the owner of the vehicle, has submitted that what PW.6 has stated in his examination-in-chief, he went back to it at the time of cross-examination, and therefore, his evidence cannot be relied in respect of identity of the accused. On perusal of the evidence of PW.6, I find that PW.6 in his examination-in-chief has made categorical statement that the accused was the driver of the vehicle on the date of accident, engaged by him at the relevant date and time and in his cross-examination he made a statement that he cannot say, who was the driver of the vehicle at the time of accident. PW.6, in my considered opinion, rightly made the statement. He was not present at the time of accident, and so, he rightly answered the question that he cannot say as to who was driving the vehicle at the time of accident but in his examination-in-chief, he clearly stated that accused was the engaged driver of his vehicle on the relevant date and time of the accident. So, it was for the accused to say as to whether he was the driver of the vehicle at that point of time or not. The accused did not adduce any defence evidence. He also stated nothing in his examination-in-chief U/S 313 Cr.P.C. that at the time of accident he was not the driver of the offending vehicle and that someone else was driving the vehicle. If the accused was not the driver of the vehicle, he would not surrender before the police and at the very inception, when he was produced before the court, he stated nothing that he was not the driver at the time of accident and that someone else was the driver of the vehicle. If the accused was not the driver of the vehicle, he would not surrender before the police and at the very inception, when he was produced before the court, he stated nothing that he was not the driver at the time of accident and that someone else was the driver of the vehicle. Even in the bail application filed before the court, on the date he was produced i.e. on 07.11.1997, he stated nothing of the sort. Under such circumstances, the trial court and the first appellate court rightly considered the evidence and material on record regarding identity of the accused, and therefore, the argument advanced by Learned Counsel has no merit. 9. It is further submitted by Learned Counsel that the Motor Vehicle Inspector's report has been exhibited but the Motor Vehicle Inspector was not examined. Learned Spl. P.P., Mr. Debnath has submitted that there was no defence plea that the vehicle was having with any mechanical disorder. No objection was raised at the time when the report was exhibited and was considered. So, regarding an evidence, which has already been accepted, objection cannot be raised before the revisional court. On perusal of the records I find that the Motor Vehicle Inspector's report was put in evidence, which shows that the vehicle had no mechanical disorder at the time of accident and there was no prayer on the part of defence for cross-examination of the Motor Vehicle Inspector on any ground. Under such circumstances, non-examination of the Motor Vehicle Inspector cannot be a ground for drawing any adverse inference. 10. No other point has been raised on behalf of the petitioner before this Court. 11. On careful perusal of the judgments, I find nothing to interfere in the finding. However, I find that the accident occurred in the year 1997 and about fourteen years elapsed in the meantime. The accused definitely has undergone tremendous mental pain for the pendency of the criminal case against him before the court. Under such circumstances, the period of sentence may be reduced with imposition of fine. Accordingly, the convict petitioner is sentenced to suffer RI for 1(one) month and to pay a fine of Rs. 1,000/- (rupees one thousand), in default of payment, to suffer further SI for 15(fifteen) days U/S 279 of IPC. Under such circumstances, the period of sentence may be reduced with imposition of fine. Accordingly, the convict petitioner is sentenced to suffer RI for 1(one) month and to pay a fine of Rs. 1,000/- (rupees one thousand), in default of payment, to suffer further SI for 15(fifteen) days U/S 279 of IPC. Again for commission of offence U/S 304(A) of IPC, the convict petitioner is sentenced to suffer RI for 3(three) months and to pay a fine of Rs. 5,000/- (five thousand), in default of payment, to suffer further SI for 45(forty five) days. 12. With modification of sentence as aforesaid, the revision petition is dismissed. 13. Send back the L.C. records along with a copy of the judgment. Petition dismissed