Research › Search › Judgment

Gauhati High Court · body

2013 DIGILAW 378 (GAU)

Nasir Uddin v. State of Assam

2013-06-06

A.C.UPADHYAY

body2013
A.C. Upadhyay, J.:- This revision is directed against the judgment and order passed by the learned Sessions Judge Hailakandi in C.R. Appeal No.29 of 2003, whereby the conviction of the petitioner recorded by the learned Chief Judicial Magistrate, Hailakandi in GR. Case No.203 of 1996 was affirmed. The petitioner was convicted under Section 279 and 337 IPC and was sentenced to undergo SI for 15 days and to pay a fine of Rs.500/- on each count and in default to undergo SI for 7 days. 2. 1 have heard Mr. A.M. Barbhuiya, learned counsel appearing for the petitioner and Ms. B. Saikia, learned Addl. P.P. appearing for the State of Assam. 3. Learned counsel appearing for the petitioner referring to the ingredients of offence under Section 279/337 IPC has submitted that even if the facts alleged by the prosecution are taken to be true, the ingredients of offence under Section 279/337 IPC have not been made out against the petitioner, since the prosecution witness could not prove rash and negligent driving of the vehicle by the petitioner. Learned counsel for the petitioner also pointed out that the prosecution has miserably failed even to establish the complicity of the accused petitioner in the commission of offence alleged. 4. The facts leading to the filing of this revision application may be enumerated below as follows - On 7.3.1996, an FIR was lodged alleging therein that at about 11.30A.M., one Ambassador Car bearing Registration No.As-24-0104 driven by Md. Nasir Uddin Laskar in a rash and negligent manner knocked down and injured Sri Aton Nayak, the younger brother of the first informant at Manipur T.E. near culvert adjacent to Jamadar Basti, when he was passing by the PWD road. As a result of the incident, Aton Nayak sustained injuries on his person, but the vehicle did not stop after knocking down the injured. The vehicle speedily left the place of occurrence. Thereafter, the injured was taken to the Katlicherra Public Health Centre, for treatment, from where he was referred to the Silchar Medical College Hospital. The police registered a case on the basis of the FIR lodged by the brother of the victim and launched investigation and on completion of the investigation submitted charge sheet against the accused petitioner alleging commission of offence under Section 279/338 IPC. The trial ensued in which the accused was convicted and sentenced as aforesaid. The police registered a case on the basis of the FIR lodged by the brother of the victim and launched investigation and on completion of the investigation submitted charge sheet against the accused petitioner alleging commission of offence under Section 279/338 IPC. The trial ensued in which the accused was convicted and sentenced as aforesaid. As against the aforesaid order of conviction, the petitioner preferred an appeal before the learned Sessions Judge, Hailakandi which affirmed the conviction, however reduced default stipulation of the sentence of fine from 30 days to 7 days imprisonment. 5. Learned counsel for the petitioner submitted that there were mainly two eye witnesses to the prosecution case, namely, PW-2, Premji Gowala and PW-4, Sri Monoranjan Maji. PW-2 in his evidence stated that on 7.3.1996 at about 11.30 A.M. he was proceeding towards Lalpani from his house by bicycle for purchasing bricks. At that time he found one ambassador car bearing registration No.AS-24-0104 of blue colour proceeding from Karicherra side to Lala. As soon as he arrived in front of a culvert in Jamadar Basti area, he found Atan proceeding by the road with a spade by the left side of the path towards Lalpani side while the alleged vehicle as mentioned above knocked down. Atan Nayak fell injured and became unconscious. Then immediately he rang up to the PS. from a nearby house. Accordingly, police tried to catch the vehicle but failed, subsequently they caught the vehicle in front of the house of one T. A. Laskar at Krishnapur. However, PW-2 in his cross examination fairly conceded that he could not identify the accused on the spot. 6. PW-4, Monoranjan Maji, who was an eye witness to the occurrence, deposed that at about 6/7 years ago one day at about 11-30 A.M. when he was returning to his house with sand by handcart from Lalpani, while he arrived at Jamadhar Basti in front of culvert, he saw an ambassador car coming towards Katlicherra side and was coming at a high speed and knocked down a boy named Aton from back side. The said injured was proceeding by the side of PWD road on grass area when accident took place. PW-4 could not recollect the number of the alleged vehicle. 7. In the mean time many people gathered then we all carried the injured to hospital. The said injured was proceeding by the side of PWD road on grass area when accident took place. PW-4 could not recollect the number of the alleged vehicle. 7. In the mean time many people gathered then we all carried the injured to hospital. Later on he could know that the injured was forwarded to Silchar Medical College Hospital. PW-4 in his examination in chief as well as in his cross examination fairly stated that he could not identify with certainty the driver and the vehicle in question at the relevant time. PW-4 stated that neither he could identify the vehicle nor the driver at the place of occurrence. 8. None of the prosecution witnesses could establish with all certainty that the petitioner as well as the vehicle driven by him was involved in the accident. 9. Mr. A.M. Barbhuiya, learned counsel for the petitioner submitted that there is no iota of evidence to prove the rash of negligence driving of the vehicle of the accused petitioner. In support of his contention, Mr. A.M. Barbhuiya, learned counsel for the petitioner relied on the decision of the Supreme Court reported in (2009) 7 SCC 353 (Braham Dass vs. State of Himachal Pradesh), where the Hon'ble Supreme Court observed as follows - 8. Section 279 deals with rash driving or riding on a public way. A bare reading of the provision makes it clear that it must be established that the accused was driving any vehicle on a public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. Obviously the foundation in accusations under Section 279IPC is not (sic) negligence. Similarly, in Section 304-A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304-A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved. 10. Similarly, in Section 304-A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304-A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved. 10. hi the case of 2005 (2) GLT274 (Kriti Singh vs. State of Assam), it was observed in para 12,13 and 15 reads as follows - In order to find a person guilty under Section 279 IPC prosecution is to establish that the accused was driving the vehicle in a public way and that he was driving in a rash or negligent manner. Similarly, to constitute offence under Section 304 (A) IPC, the prosecution is to establish the rash or negligent act of the accused which was responsible in resulting to death of the victim and such act of rash or negligence do not amount to culpable homicide. Thus, in order to constitute either of these two offences, the proof of rashness or negligence is essential. The term "rash" and "negligence" has not been defined in the code and both the words are not synonymous. Rashness is an act done in the hope that no untoward consequence will ensue though the person is aware of the likelihood of such consequence. On the other hand, negligence is acting with the awareness that harmful or mischievous consequences will follow. If a person does an act with utter indifference of the consequence of which he may be conscious, which he hoped may not take place, he is said to be rash. Negligence is failure to take that precaution, which a reasonable and prudent person is expected to take. Even if an act is found to be negligent, it may not be construed to mean as rash in a given case. Culpable rashness is acting with consciousness that mischievous consequences are likely to follow although the accused hoped, even though he hoped sincerely, that consequences might not follow. Criminality lies in not taking the precaution to prevent the happening of the consequences in the hope that they may not happen. Culpable rashness is acting with consciousness that mischievous consequences are likely to follow although the accused hoped, even though he hoped sincerely, that consequences might not follow. Criminality lies in not taking the precaution to prevent the happening of the consequences in the hope that they may not happen. On the other hand, negligence is an act done without doing something, which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do, or an act, which a prudent or reasonable man would not do in the circumstances attending it. The Apex Court in the case of Bhalchandra vs. State of Maharashtra, reported in AIR 1968 SC1319, approving what was said by Straight in Empress of India vs. Indu Beg, (1881) ILR 3 ALL 776 held that criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. 11. In order to convict a person under section 279 IPC the following ingredients are to be proved- (a) that the accused was driving the vehicle; (b) that the accused was driving the vehicle on a public way; (c) that the accused was driving the vehicle rashly or negligently and (d) that it endangered human life or to likely to cause hurt or injury to any other person. Similarly, in order to convict a person under Section 337 IPC the prosecution is to prove- (a) same act was done rashly or negligently (b) the act endangered human life (c) hurt was caused to any person in doing such act. 12. In the present case, the evidence of the only eyewitness to the occurrence has stated that the offending vehicle was moving very fast and hit the deceased. There is no iota of evidence regarding rashness or negligence of the driver of the truck either in the statement of the eye witness or other witnesses. Even it is doubtful whether the accused was involved in the incident as driver. Since none of the witness could roundhead presence of the accused in the occurrence. 13. There is no iota of evidence regarding rashness or negligence of the driver of the truck either in the statement of the eye witness or other witnesses. Even it is doubtful whether the accused was involved in the incident as driver. Since none of the witness could roundhead presence of the accused in the occurrence. 13. In the light of the above discussions, on scrutiny of the materials and evidence on record, it is found that in the instant case none of the prosecution witness have failed to prove rashness or negligence of the accused/petitioner in driving the offending vehicle on the fateful day. The trial court thus came to a finding different from the proved facts and illegally convicted the accused/petitioner. The learned Appellate Court also tailed to consider that the prosecution has failed to prove and establish beyond reasonable doubt the vital ingredients regarding rashness or negligence of the petitioner in driving the offending vehicle and also thus improperly upheld the findings of the learned trial court.8 14. In the case of State of Karnataka vs. Satish, reported in (1998) 8 SCC 493 . the Apex Court held that - 4. 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. 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. 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. 15. In the result, the revision is allowed. The judgment and order passed by the learned Court below in the aforenoted case is set aside and the accused is acquitted of the offences under Section 279/337IPC and he is set at liberty forthwith. 16. Send back the L.C.R.