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2017 DIGILAW 1238 (GAU)

SHEW MANGAL MAHATO v. STATE OF ASSAM

2017-09-05

HITESH KUMAR SARMA

body2017
JUDGMENT : Hitesh Kumar Sarma, J. This Criminal Revision Petition, before this court, is under Section 397/401 Cr.P.C., challenging the legality and propriety of the judgment and order, dated 3.10.2007, passed by the learned Sessions Judge, Sonitpur, Tezpur, in Criminal Appeal No. 7(S-1)/2007, dismissing the appeal and upholding the judgment and order passed by the learned Judicial Magistrate, 1st Class, Sonitpur, Tezpur, in GR Case No. 1534/2003, convicting the accused revision petitioner under Section 279/304(A)/427 IPC, and sentencing him to suffer rigorous imprisonment for 3 months under Section 279 IPC, rigorous imprisonment for 1 year under Section 304 (A) IPC and to pay a fine of Rs. 300/-, in default, simple imprisonment for 10 days under Section 427 IPC with a further order to run the sentence concurrently. 2. Heard Mr. D. Talukdar, learned counsel for the accused revision petitioner as well as Mr. N.K. Kalita, learned Additional Public Prosecutor for the state. 3. The fact of the prosecution case is that, on 24.10.2003, at about 10:30 am, a bus bearing Reg. No. AS-25-A/8881, driven by the accused revision petitioner, was proceeding from Tezpur side towards Kaliabor side, in a very high speed and knocked down a minor girl, Hashnara Khatoon, causing her instant death and hit another cyclist Abdul Kalam, who died later on, in the hospital due to the injuries sustained by him in the accident. The accident occurred near Kalia Bhumura bridge on 31(A) National Highway. 4. On receipt of the FIR on the above facts, the Tezpur Police Station registered a case under Sections 279/304(A)/427 IPC, investigated into it, collected evidence, seized the bus involved in the accident along with the documents and got the said bus examined by the Motor Vehicle Inspector, arrested the accused person, and finally, submitted charge-sheet against the accused revision petitioner under Section 279/304(A)/427 IPC. 5. In this case, the prosecution examined as many as 7 (seven) witnesses. The learned trial court as well as the learned appellate court examined the evidence on record and have convicted and sentenced the accused revision petitioner as aforesaid. 6. It appears from the judgment of both the lower courts that both the said courts relied upon the evidence of PW2, PW3 & PW5. The learned trial court as well as the learned appellate court examined the evidence on record and have convicted and sentenced the accused revision petitioner as aforesaid. 6. It appears from the judgment of both the lower courts that both the said courts relied upon the evidence of PW2, PW3 & PW5. Therefore, this court has decided to scan the evidence, relied upon by the learned trial court, to see whether the evidence justifies the findings of learned courts below in recording the order of conviction of the accused revision petitioner. 7. The evidence of the PW2, Arman Ali is that he was waiting for a bus for going to Tezpur and at that time the offending bus came at a high speed towards Nagaon, hit the deceased Hashnara Begum, causing her instant death, and also hit another cyclist Abdul Kalam who died in the hospital because of the injuries sustained in the accident. The evidence of PW3 Hazira Khatoon is also similar that she was also waiting for a bus near the place of occurrence, and at that point of time, she noticed that a bus was coming from Tezpur side in excessive speed and had hit a minor girl Hashnara Begum causing her death on the spot and also hit a cyclist, who later on died in the hospital due to injury sustained by him. The evidence of the PW5 is that he was also, like PW2 and PW3, was waiting for a bus to travel to Tezpur at about 6-8 meter away from the place of occurrence. He noticed at that time that deceased Hashnara Begum was crossing the road from north to south, and a speeding bus hit her, causing her instant death and then hit another cyclist, Abdul Kalam, who also died later on in the hospital. 8. The evidence of PW2, PW3 & PW5 makes it appear that there took place an accident and two persons died. According to them, the bus which was involved in the accident, was being driven, at the relevant point of time, in a very high speed, which is the cause of the accident. 9. It appears from the evidence of all the aforesaid 3 witnesses that none of them was passenger of the vehicle and all of them were rather standing near the place of occurrence waiting for a bus to travel to Tezpur. 9. It appears from the evidence of all the aforesaid 3 witnesses that none of them was passenger of the vehicle and all of them were rather standing near the place of occurrence waiting for a bus to travel to Tezpur. One of the witnesses, i.e. PW5, even deposed that the vehicle was plied at a high speed of about 140 km./hr. in the National Highway at about 10:30 am. It is seen that on the National Highway, at about 10:30 am, to ply a vehicle in 140 km./hr. speed is more than impossible. That apart, the speed of the vehicle could not be assessed otherwise also as none of the passengers of the bus was examined. The MVI report also suggest that the vehicle was mechanically in order at the relevant time of accident. In the absence of any specific evidence, as to how the accident occurred, particularly, the speed of the vehicle could not be ascertained and the bus was mechanically in a fit condition. It seems to be a case of negligence on the part of the driver so far his failure to stop the vehicle at the relevant time of the accident in the place of occurrence is concerned. He would have been able to prevent the accident had the vehicle been driven not in a high speed. While the deceased Hashnara was crossing the road, he could have stopped the bus had it been in normal speed. 10. Such being the evidence on record, and as the findings recorded by the learned trial court as well as the appellate court, is based on proper evaluation of the evidence on record, in the considered view of this court, no interference from this court is called for so far the order of conviction is concerned. 11. That being so, in the considered view of this court also, considering the fact that this is an old pending case of the year 2003, if the substantive punishment of the accused revision petitioner is set aside and punishment by way of fine imposed, it will meet the ends of justice. 12. Accordingly, the substantive sentence of the accused revision petitioner is set aside. 13. The accused revision petitioner is sentenced as follows : The commission of offence under Section 279 IPC, fine of Rs. 12. Accordingly, the substantive sentence of the accused revision petitioner is set aside. 13. The accused revision petitioner is sentenced as follows : The commission of offence under Section 279 IPC, fine of Rs. 1,000/-, in default, 15 days rigorous imprisonment, for the commission of offence under Section 304(A) IPC a fine of Rs.5,000/-, in default, 1 month rigorous imprisonment, and, for the commission of offence under Section 427 IPC, a fine of Rs.300/-, in default, 10 days simple imprisonment. 14. Accordingly, the accused revision petitioner is sentenced to fine as indicated above. 15. The accused revision petitioner will surrender before the learned trial court for serving out the sentence within 1 (one) month. 16. Send back the LCR along with a copy of this judgment.