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2014 DIGILAW 44 (SIK)

Bikram Pradhan v. State of Sikkim

2014-07-16

SUNIL KUMAR SINHA

body2014
Judgment Sinha,J. 1. The applicant/accused is a driver. On 04.02.2009 he was driving a Maxx vehicle bearing registration number SK-04/6784. There were many occupants in the vehicle including the two deceased persons. The said vehicle was coming from Siliguri to Gangtok. On the way, the applicant tried to overtake the vehicle driven by one Kumar Chettri (PW-3). He rashly and negligently overtook the said vehicle by his Maxx, which ultimately dashed against a wall and, thereafter, fell down 130 feet below from the road. 2. The prosecution came with the case that, on account of the rash and negligent driving of the said vehicle by the applicant/accused on National Highway, many persons received grievous injuries and two of them had lost their lives, therefore, the applicant was liable for punishment under Sections 279/338 and 304A of the Indian Penal Code (for short ‘IPC’). There were two eye witnesses to the incident, namely, Kumar Chettri (PW-3) and Dadiram Sharma (PW-4). Kumar Chettri, as we have said, was driver of the vehicle which was overtaken by the vehicle of the applicant/accused and Dadiram Sharma (PW-4) was occupant of the vehicle of the applicant. 3. The learned Judicial Magistrate, First Class, East Sikkim at Gangtok, recorded the findings in G.R.Case No.37/2009 vide judgment and order dated 24.11.2012 that the applicant had driven the vehicle rashly and negligently due to which many persons received grievous injuries and two persons lost their lives, and, therefore, he was liable for punishment under Sections 279/338 and 304A IPC. The applicant, thus, was convicted and sentenced to undergo SI for two months and to pay fine of Rs.1000/-U/S 279 IPC; SI for 4 months and to pay fine of Rs.1000/-U/S 338 IPC and SI for 6 months and to pay fine of Rs.3000/-U/S 304A IPC with direction to run the sentences concurrently. 4. Against the said judgment and findings recorded by the Judicial Magistrate, the applicant filed Criminal Appeal No.4/2014 before the Principal Sessions Judge, East Sikkim, at Gangtok. However, his appeal was dismissed on 05.04.2014. Thus, the conviction and sentences awarded to the applicant were upheld. Hence this Revision. 5. We have heard learned Counsel for the parties. 6. Mrs. Gita Bista, learned Counsel for the applicant/accused has argued that the applicant was not driving his vehicle rashly and negligently and the conviction and sentences cannot be sustained. However, his appeal was dismissed on 05.04.2014. Thus, the conviction and sentences awarded to the applicant were upheld. Hence this Revision. 5. We have heard learned Counsel for the parties. 6. Mrs. Gita Bista, learned Counsel for the applicant/accused has argued that the applicant was not driving his vehicle rashly and negligently and the conviction and sentences cannot be sustained. Alternatively she also argued that the applicant has already undergone for more than three months imprisonment, therefore, in case he is found guilty by this Court, the punishment awarded to him may be reduced to the period already undergone. 7. On the other hand, Mr. J. B. Pradhan, learned Public Prosecutor, has opposed these arguments and supported the judgments passed by the two Courts. 8. The conviction awarded to the applicant is based on eye witnesses, namely, Kumar Chettri (PW-3) and Dadiram Sharma (PW-4). Kumar Chettri, was the driver of the vehicle which was overtaken by the vehicle of the applicant. He has deposed that on the fateful day, while he was coming from Siliguri to Gangtok, near Bhagey Khola, his vehicle was overtaken by the vehicle of the applicant on a turning without blowing horn. After going little ahead, the vehicle driven by the applicant went off the road. He also stopped his vehicle after seeing the incident and helped to evacuate the injured passengers who were occupants of the vehicle driven by the applicant. 9. Dadiram Sharma (PW-4) was one of the occupants of the vehicle. He has corroborated the evidence of Kumar Chettri (PW-3). Dadiram Sharma (PW-4) was a constable in SSB. According to him, the vehicle driven by the applicant had dashed against a wall of the road and, thereafter, he became unconscious and ultimately he gained his consciousness in the hospital at about 12 in the midnight. 10. Kumar Chettri (PW-3) and Dadiram Sharma (PW-4) were put to lengthy cross-examination by the defence, but nothing material could be elicited in their cross examination on which either the testimonies of these witnesses may be discarded or it may be said that they were falsely implicating the applicant in the above incident. They have deposed about the manner in which the incident had taken place. They have deposed about the manner in which the incident had taken place. On appreciation of evidence of these two witnesses and other evidence on record, it is clear that at the relevant time the applicant, who was driving a Maxx, had overtaken the vehicle of Kumar Chettri (PW-3) on a sharp turn without blowing horn and ultimately when he lost control over his vehicle, it dashed against a wall and thereafter fell down 130 feet deep from the road. This shows that the applicant was driving his vehicle rashly and negligently. I am of the view that the learned Judicial Magistrate was fully justified in holding the applicant guilty of the offences punishable under Sections 279/338 and 304A IPC. 11. Now we shall consider the next argument advanced by Mrs. Bista. 12. It comes on record that the applicant had also sustained injuries in the incident. According to learned Counsel for the applicant, he was admitted in the hospital for 49 days. He has no past criminal record. The applicant has a wife and a female child aged about 6-7 years. The applicant has already undergone for more than three months as he was taken into custody on 05.04.2014 and was released on bail on 04.07.2014 vide order of suspension dated 02.07.2014. 13. Considering the facts and circumstances of the case, I am of the view that no truthful purpose would be served in sending the applicant to the jail once again and the ends of justice would be served if the sentences awarded to the applicant under Sections 338 and 304A IPC are reduced to the period already undergone. 14. The Criminal Revision Petition is partly allowed. While maintaining the conviction awarded to the applicant under Sections 279/338 and 304A IPC, the jail sentences awarded to him under Sections 338 and 304A IPC are reduced to the period already undergone. However, the fine amount imposed against the applicant under each Court are maintained. The direction to run the jail sentences concurrently is also maintained. 15. Records of the Courts below be sent back along with a copy of the judgment to each Court.