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2014 DIGILAW 379 (TRI)

Dulal Das v. State of Tripura

2014-11-14

U.B.SAHA

body2014
JUDGMENT Utpalendu Bikas Saha, J. 1. The challenge in this revision petition is the judgment and order dated 14.07.2008 passed by the learned Additional Sessions Judge, West Tripura, Agartala in Criminal Appeal No. 45(4) of 2007 upholding the judgment and order of the learned Chief Judicial Magistrate dated 26.10.2007 in GR 497 of 2004 whereby the petitioner has been convicted under Section 279/304(A) of the Indian Penal Code and sentenced to suffer rigorous imprisonment for a period of four months for commission of offence under Section 279 IPC and also sentenced to suffer rigorous imprisonment for a period of six months for commission of offence under section 304(A) IPC respectively with a direction that both the aforesaid sentences shall run consecutively. 2. Heard Mr. Sekhar Dutta, learned counsel appearing for the petitioner as well as Mr. RC Debnath, learned Additional Public Prosecutor. 3. The prosecution case, in brief, is that:- "On 12.08.2014 (Thursday) one Ananta Das was returning to home at village- Mongkurai, Sadhupara under Champaknagar from Teliamura by travelling vehicle bearing No. TR-01-1256 (mini bus) and when reached at Chandrasadhupara bus stand he asked the driver of the vehicle to stop the vehicle and accordingly the driver stopped the vehicle and when he was about to get down from the vehicle, the driver without giving any signal suddenly started the vehicle to move it to a certain distance and as a result said Ananta Das fell down on the road and sustained grievous injuries on his person. Immediately, after the accident he was taken to GB hospital where he succumbed to his injuries. Sri Becharam Das S/O aforesaid deceased Ananta Das made complaint at Jirania Police Station vide No. 41 of 2004 under Sections 279/304(A) IPC and the case was endorsed to S.I. Jhunulal Das (PW-10) for investigation. After investigation, said Sri Das submitted charge sheet against the convict petitioner who was allegedly the driver of the offending mini bus bearing No. TR-01-1256 under Sections 279/304(A) IPC." 4. The prosecution in order to prove its case had examined as many as 10 (ten) witnesses including the official witnesses. The accused in his defence examined none. The defence of the accused is of total denial of the allegation and it is stated that a false case has been initiated against him. The prosecution in order to prove its case had examined as many as 10 (ten) witnesses including the official witnesses. The accused in his defence examined none. The defence of the accused is of total denial of the allegation and it is stated that a false case has been initiated against him. Learned Chief Judicial Magistrate, West Tripura, Agartala after appreciating both oral and documentary evidence came to a conclusion that the prosecution has established its case beyond reasonable doubt and accordingly he convicted the accused convict petitioner under Sections 279/304(A) IPC and sentenced him, as stated supra. 5. Being aggrieved by the judgment of the learned Chief Judicial Magistrate, West Tripura, Agartala i.e. the trial Court, the convict petitioner preferred an appeal being Criminal Appeal No. 45(4) of 2007 which was heard by the learned Additional Sessions Judge, West Tripura, Agartala and the learned appellate Court i.e. the learned Additional Sessions Judge dismissed the appeal affirming the judgment of the learned trial Court. Hence, the instant revision petition. 6. Mr. Dutta, learned counsel appearing for the convict petitioner submitted that mere identification of the driver of the vehicle does not ipso facto prove the offence under Section 279 of the Code. He has further submitted that if a person dies or somebody gets injury in course of moving by a vehicle it in no way makes the driver of the said vehicle liable unless the prosecution establishes by way of evidence that the driver was negligent while driving the offending vehicle and also the vehicle was driven rashly and due to such rash and negligent driving, some persons were injured or died. 7. In the instant case, the prosecution mainly relied upon the evidences of P.W. 1 (Sri Siddhartha Narayan Datta), the owner of the vehicle, PW-3(Sri Dulal Mia), PW-7 (Smt. Jyotsna Banik) and PW-8 (Sri Pramod Chandra Das) but none of those witnesses identified the convict petitioner as the driver except PW-1 and even PW-1 also stated inter-alia that he is the owner of three mini buses and he has five drivers and they used to drive all the mini buses mutually. On the date of the accident in the morning driver Dulal Das came out with the mini bus but he could not say whether he had driven the said mini bus on that day. On the date of the accident in the morning driver Dulal Das came out with the mini bus but he could not say whether he had driven the said mini bus on that day. Therefore, it cannot be said that the convict petitioner was the driver of the offending vehicle. In cross-examination of this witness he also stated that the bus might be driven by another driver even it was taken by one particular driver. 8. Placing reliance on the aforesaid statement of the owner, PW-1, Mr. Dutta, learned counsel submits that mere coming out with the vehicle does not ipso facto prove that the said vehicle was driven by the convict petitioner on that day. He has also taken us to the deposition of PW-3 who in his deposition stated that he was gossiping under a tree at about 10.00 a.m. and it was found that a mini bus bearing No. TR-01-1256 was coming from Teliamura side towards Agartala and at the time of getting down from the mini bus at Chandrasadhupara a person suddenly slipped and as a result he sustained injuries. This witness also stated that he came to know the number of the bus from one Master. Admittedly the said Master was also not examined and not only that this witness also in his chief stated that he could not say the name of the injured person and also could not identify the driver of the said mini bus. He further submits that PW-7 in his deposition has specifically stated that he could not identify the driver. Therefore, the evidence of the said witnesses has no value, so far the convict petitioner is concerned. 9. According to Mr. Dutta, learned counsel there may be an accident and consequent to the accident some person may be injured but it has to be proved by the prosecution as to whether the accused is liable for such injuries. Taking to the deposition of PW-8 he again pointed out that this witness also in his cross examination stated that he did not state to the I.O. of the case that he could identify the driver if shown to him since he was not asked by the I.O. to that effect. Taking to the deposition of PW-8 he again pointed out that this witness also in his cross examination stated that he did not state to the I.O. of the case that he could identify the driver if shown to him since he was not asked by the I.O. to that effect. He finally has taken us to the evidence of PW-10, the I.O. of the case who stated that he did not record the statement of the informant, S/O of the victim deceased under Section 161 Cr.P.C. and not only that he prepared the hand sketch map of the PO which is situated at Sadhupara under the Chandrasadhupara, as stated in the FIR. Therefore, from the evidence of the prosecution witnesses it cannot be firmly said that it is the convict petitioner who was the driver of the vehicle at the relevant time of the accident and also he drove the vehicle rashly and negligently for which the deceased victim succumbed to injuries. 10. On the other hand Mr. Debnath, learned Additional Public Prosecutor while urging for affirming the judgment of the learned appellate Court wherein the learned appellate Court affirmed the judgment of the learned trial Court would contend that the prosecution proved its case beyond reasonable doubt which would be evident from the evidence of PW-1, PW-3, PW-7 and PW-8. He further submits that PW-1 being the owner informed the investigating agency that the petitioner was the driver at the relevant time. He finally contended that except PW-1 no other witness had identified the present convict petitioner as the driver of the offending vehicle. 11. This Court has gone through the evidence on record and it appears from the record that the deceased father of the informant i.e. PW-5 sustained injury due to rash and negligent driving of the vehicle and ultimately succumbed to injury. But the questions arisen for decision are whether the convict petitioner is liable for such accident which took place, as alleged by the informant and also whether he is liable for the injury caused to the deceased father of the informant who subsequently succumbed to injury in the GBP hospital. 12. But the questions arisen for decision are whether the convict petitioner is liable for such accident which took place, as alleged by the informant and also whether he is liable for the injury caused to the deceased father of the informant who subsequently succumbed to injury in the GBP hospital. 12. In Raghunath Kehera v. State, : 1968 Cri.LJ 851, a learned Single Judge of the Orissa High Court taking note of the decision of the Apex Court in Kurban Hussain Mohmedalli Rangawalla v. State of Maharashtra : (1965) AIR SC 1616 in para 5 stated, inter alia, as follows,- "To constitute either of these offences under section 279 or section 304A of the Code, proof of rashness or negligence is essential. The only distinguishing feature is that in Section 279, the rash and negligent act made punishable relates to the manner of driving or riding on a public way, while the offence under Section 304Aextends to any rash or negligent act falling short of culpable homicide. In the aforesaid judgment, it is also stated that 'Negligence' means breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate conduct of human affairs would do or the doing of something which a prudent and reasonable man would not do. The question for consideration is whether the facts found against the petitioner amount to criminal negligence which would constitute an offence under either of these sections. There is no evidence or suggestion that the petitioner was driving the tractor in question in a rash manner or in a negligent manner which resulted in the accident. All that the prosecution has sought to establish and the Courts below have found is, as stated above, that the hitch assembly joint was weak on account of its having been welded earlier; that petitioner should not have negotiated the ghat gradient with a loaded trailer attached to it; that he should not have allowed the deceased persons to sit on the trailer which was intended to carry goods and not passengers; that when the engine stopped, he should have shouted out a warning and that he failed to apply the brakes which if he had done would not have caused the tractor and attached trailer to roll back. In the decision reported in Kurban Hussein Mohd. In the decision reported in Kurban Hussein Mohd. Rangawalla v. State of Maharashtra, : AIR 1965 SC 1616 the interpretation of Section 304A, Indian Penal Code came up for consideration. The observations of Sir Lawrence Jenkins in 4 Bom LR 679 to the effect: "To impose original liability under Section 304A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash or negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans it is not enough that it may have been the cause sine qua non" were quoted with approval and it was held that in order that a person may be guilty under Section 304A, the rash or negligent act should be the direct or proximate cause of the death". 13. In Baijnath Singh v. State of Bihar, : AIR 1972 SC 1485 , the Apex Court in para 5 noted, inter alia, as follows: "It is significant that there was no trace of the corrugated iron sheets and the investigating Officer made no mention of any attempt on his part to find them or discover them nor did not the prosecution care to find out who the owner of the bus and who had loaded the iron sheets. This part of the evidence was very material because unless the driver could be held to be entirely responsible for loading the iron sheets and putting them in negligent manner or not tying them properly it is difficult to sustain his conviction under Section 304A of the Indian Penal code. This part of the evidence was very material because unless the driver could be held to be entirely responsible for loading the iron sheets and putting them in negligent manner or not tying them properly it is difficult to sustain his conviction under Section 304A of the Indian Penal code. Nor could he be convicted for rash driving under Section 279, Indian Penal Code because there is hardly any evidence worth the name from which it could be inferred that the speed of the bus was such that any iron sheets even if it be assumed that they were loaded on the roof of the but fell down because of driving at a high speed." The Apex Court further noted - "Even if we assume that the case of the prosecution is correct that there were some corrugated iron sheets on the roof of the bus we are unable, on the evidence produced in the present case to find that the iron sheets were so loaded that a high degree of negligence could be attributed to the appellant and that it was his rash and negligent act which could be regarded as the efficient cause of the injuries to Latif." 14. In the instant case also, there is a lacuna on the part of the prosecution so far establishment of the fact, inter alia, that the accused petitioner was the driver of the offending vehicle at the relevant time by which the victim Ananta Das died. The learned trial Court also failed to consider the deposition of PW-1 who specifically stated in his chief that he could not say whether the accused convict petitioner had driven the mini bus on that date. Even if for the argument sake, the submission of Mr. Debnath, inter alia, that the prosecution established rash and negligent driving of the vehicle then also the question remains as to whether the convict petitioner was the driver at the relevant time or not and admittedly none of the witnesses identified the petitioner as driver of the offending vehicle except PW-1 who also stated that he could not say whether on that day the convict petitioner was the driver. There is no doubt if a person dies or gets grievous injury while travelling by a vehicle, it does not ipso facto make the driver of that vehicle responsible for such death on injury under Section 279 of the Code unless the prosecution proves that it is the accused who was the driver of that vehicle and drove the vehicle rashly and negligently at the time of the alleged accident and unless rashness and negligence on the part of the driver is proved, offence under Section 304(A) of the Code cannot also be made out as according to the Apex Court to constitute an offence under Section 304(A) of the Code, rash and negligent act should be the proximate cause of death. 15. In view of what has been discussed and observed above, this Court is of considered opinion that this revision petition has merit. Accordingly, the same is allowed. The conviction and sentence, as ordered by the learned trial Court vide its judgment dated 26.10.2007 in GR 497 of 2004 and the judgment of the learned Additional Sessions Judge, West Tripura, Agartala dated 14.07.2008 in Criminal Appeal 45(4) of 2007 are hereby set aside. The petitioner is acquitted of the charge leveled against him. As the convict petitioner is on bail, his bail bond stands discharged. 16. Send down the LCRs forthwith.