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2014 DIGILAW 265 (TRI)

Sudip Das v. State of Tripura

2014-07-09

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. This revisional application under Section 397 read with Section 401 of CrPC is directed against judgment and order of conviction and sentence dated 26.03.2012 passed by learned Addl. Sessions Judge, Court No. 4, West Tripura, Agartala in case No. Criminal Appeal 35(3) of 2011, whereunder the learned Addl. Sessions Judge upheld the judgment and order of conviction and sentence dated 29.08.2011 passed by learned Judicial Magistrate, First Class, Court No. 4, Agartala, West Tripura in case No. PRC 406 of 2010. Learned Magistrate found the accused petitioner guilty of committing offence punishable under Sections 279 and 304A of IPC and sentenced him to suffer RI for three months and to pay a fine of Rs.500/- in default of payment of fine to suffer SI for five days for commission of offence punishable under Section 279 of IPC and again to suffer RI for one year and to pay a fine of Rs.1,000/- in default of payment of fine to suffer SI for ten days under Section 304A of IPC. In the appeal, learned Addl. Sessions Judge upheld the judgment and order of conviction and sentence and dismissed the appeal and, hence, this revisional application. 2. Heard learned counsel, Mr. H.K. Bhowmik for the petitioner and learned P.P., Mr. A. Ghosh for the State respondent. 3. It is submitted by Mr. Bhowmik, learned counsel that the accused petitioner has been wrongly and falsely implicated in the case, which is evident from the FIR and the statement of PW7, i.e. the informant of the case. In the FIR it was clearly mentioned that TR-01-H-5112, a Pulsar motor bike was involved in the accident, but subsequently, in the evidence PW7 has stated that he lodged a second FIR on 29.04.2010 where he mentioned that the motor bike was having with registration number--TR-01-H-7272. It is, therefore, clear that the petitioner has been subsequently implicated in the case with a false allegation that he committed the accident of motor bike and therefore the mother of the informant Bijli Baruah received injury and died. It is also submitted by Mr. Bhowmik, learned counsel that there is no iota of evidence that the petitioner was riding the motor bike rashly and negligently to arrive at a conclusion that the offence committed is punishable under Sections 279 and 304A of IPC. 4. Learned P.P., Mr. It is also submitted by Mr. Bhowmik, learned counsel that there is no iota of evidence that the petitioner was riding the motor bike rashly and negligently to arrive at a conclusion that the offence committed is punishable under Sections 279 and 304A of IPC. 4. Learned P.P., Mr. Ghosh, with all his fairness, has submitted that in the FIR lodged on 18.04.2010, on the basis of which police started investigation, the number of offending motor bike was mentioned as TR-01-H-5112 but subsequently the informant submitted a petition stating the number of the offending vehicle as TR-01-H-7272, and therefore the police started investigation against the rider of that motor bike and it was found that Sudip Das, the accused petitioner was the man in the steering of the motor bike and the accident was committed. It is, however, admitted by learned P.P. that all the witnesses stated that the accident occurred when the victim woman suddenly was trying to cross the road and there was no specific evidence that the motor bike was running rashly and negligently. 5. I have carefully gone through the evidence and materials on record. The accident occurred on 18.04.2010 at 7.00 pm on Jail Ashram Road at Dhaleswar. It is one of the busiest roads of Agartala city. The FIR was lodged by Amit Barua, PW7 in writing on 25.04.2010 at 1110 hrs. alleging that on 18.04.2010 at 7.00 pm his mother Smt. Bijli Barua was passing through Jail Ashram Road near the house of Dr. Sukhendu Bhattacharjee and at that time a motor bike(Pulsar) bearing registration No. TR-01-H-5112 knocked down his mother coming from backside and, as a result his mother sustained grievous injury and she was thereafter taken to G.B. Hospital where she died on that night itself. Admittedly, in the FIR, which is proved as Exbt. 6, the informant, i.e. PW7 stated nothing as to from whom he came to learn about the number of the vehicle. However, police registered the case on the basis of the FIR lodged by PW7 and in course of investigation on 29.04.2010 he submitted an application to the police that the number of the motor bike involved in the accident was TR-01-H-7272. In his deposition he stated that he submitted the second FIR on 29.04.2010 changing the registration number of the motor bike. In his deposition he stated that he submitted the second FIR on 29.04.2010 changing the registration number of the motor bike. This raises a serious doubt about the authenticity of the prosecution case as a whole. FIR was lodged after seven days of the accident. Reason for the delay in lodging the FIR was not at all satisfactorily explained. It is apparent that initially one vehicle was involved in the accident but later on registration number the vehicle was changed for the reasons which can be understood from the evidence of the eye witnesses. 6. PWs 8, 9 and 10 are the eyewitnesses of the accident. From the evidence of those witnesses it is found that those witnesses were passing through the road riding three motor bikes. One motor bike, bearing registration No. TR-01-H-7272 belonged to PW1, mother of the accused petitioner, was riding by the accused petitioner. 6.1. PW8 stated that he was passing through the road riding a motor bike as a pillion rider and his friend Sadip Das(accused petitioner) was also riding a motor bike at the relevant time through the road. Suddenly an old lady came in front of the motor bike and she was dashed by the bike of Sudip Das. As a result she sustained injury and she was shifted to G.B. Hospital. Later on he heard that doctor declared her dead. In cross examination he stated that at the relevant time his motor bike bearing registration No. TR-01-H-5112 had all its relevant documents except insurance certificate. At first, the case was instituted against his motor bike bearing registration No. TR-01-H-5112 and he stated to the police that the offending motor bike bearing registration No. TR-01-H-5112 at the relevant time was driven by his friend and he was the pillion rider. From the evidence of PW8 it appears that he was the owner of motor bike No. TR-01-H-5112 and he was also passing through the road riding the motor bike as a pillion rider and at that time the accused petitioner was also riding by another motor bike and an old woman was dashed by the motor bike of the accused petitioner. Implicit reliance cannot be placed in the statement of this witness since the informant, i.e. PW7 implicated the motor bike of PW8 as the offending vehicle in the FIR and that fact is admitted by PW8 also. 6.2. Implicit reliance cannot be placed in the statement of this witness since the informant, i.e. PW7 implicated the motor bike of PW8 as the offending vehicle in the FIR and that fact is admitted by PW8 also. 6.2. PW9 also stated that he along with his other friends were passing in three numbers of motor bikes at the place of occurrence and he was present as a pillion rider in the motor bike of TR-01-H-7272 and Sudip Das was riding the motor bike. He and Sudip were only present on that bike and none else. Suddenly, at the place of occurrence one lady fell in front of the bike and Sudip and he(witness) fell down and the accident occurred and the lady sustained injury and she was shifted to G.B. Hospital by the members of the local club and Sudip was also taken to G.B. Hospital. 6.3. PW10 stated that he was also passing through the place of occurrence along with his other friend on a motor bike and at the relevant time three numbers of motor bikes were passing and he(witness) was on the third motor bike, i.e. the last motor bike. The first motor bike was driven by accused Sudip Das and the registration number of the motor bike was TR-01-H-7272 and the second motor bike was driven by Jibitesh Deb and the number of the motor bike was TR-01-H-5112. Suddenly, at the place of occurrence he saw a lady fell in front of the bike of Sudip Das and Sudip also fell down on the road and he(Sudip) was shifted to hospital by an ambulance. 7. The other witnesses examined by the prosecution are not the eyewitnesses of the occurrence. From the evidence of PWs 8, 9 and 10, it appears that three motor bikes were passing through the road at the relevant time and out of those motor bikes, TR-01-H-5112 belonged to PW8 which was initially mentioned in the FIR and he was a pillion rider in that motor bike. PW9 was a pillion rider of TR-01-H-7272 in which the accused petitioner was the driver. The number of another motor bike is not in picture but according to the evidence of PW10 he was on the 3rd motor bike. PW9 was a pillion rider of TR-01-H-7272 in which the accused petitioner was the driver. The number of another motor bike is not in picture but according to the evidence of PW10 he was on the 3rd motor bike. The evidence of PW8 makes it clear that his motor bike had no insurance at the time of accident and so it cannot be ruled out that after the FIR was lodged, to search out an insured motor bike subsequent motor bike bearing registration No. TR-01-H-7272 has been involved in the accident. Moreover, all those three witnesses, i.e. PWs 8, 9 and 10 stated that the lady was suddenly trying to cross the road when the accident occurred. There is no specific evidence that the motor bike was with abnormal speed or it was driven rashly and negligently. 8. A rash act is primarily an overhasty act done without due deliberation and caution. Negligence is the absence of such care and caution which an ordinary prudent man in the ordinary course would take or would not take. A mechanically propelled vehicle must be driven with speed and one cannot expect that a mechanically propelled vehicle will be driven in a tortoise speed. What is required to be proved is that the vehicle was driven rashly or negligently, as a result of which the accident had occurred. There is no iota of evidence that the motor bike bearing registration No. TR-01-H-7272 was driven rashly or negligently at the time of accident. This is a clear case where benefit of doubt ought to be given to the accused petitioner which was not given by the trial Court as well as the appellate Court. In the facts and circumstances, I am constrained to hold that prosecution has failed to prove the case beyond reasonable shadow of doubt and therefore the accused petitioner is entitled to get an order of acquittal of benefit of doubt. Accordingly, the revisional application is allowed. The accused petitioner is acquitted on benefit of doubt and his surety is also discharged. 9. Send back the L.C. records along with the copy of the judgment.