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2018 DIGILAW 274 (GAU)

Khirod Gogoi v. State of Assam

2018-02-13

HITESH KUMAR SARMA

body2018
JUDGMENT AND ORDER : 1. This revision petition is filed, under Section 397, read with section 401 of the Code of Criminal Procedure, 1973 against the judgment and order dated 23-05-2006, passed by learned Chief Judicial Magistrate, Golaghat, in GR Case No. 620/2003, convicting the accused petitioner, under Sections 279/337/304(A) of the IPC and sentencing him to pay a fine of Rs. 1,000/- in default, to suffer further simple imprisonment for 15 (fifteen) days, for the offence punishable under Section 279 of the IPC; to pay a fine of Rs. 500/- in default, to suffer further simple imprisonment for 15 (fifteen) days for the offence punishable under Section 337 of the IPC and to suffer simple imprisonment for 1 (one) year, for the offence punishable under Section 304(A) of the IPC as well as the judgment and order, dated 28-08-2006, passed by the learned Sessions Judge, Golaghat, in Criminal Appeal No. 22/2006 dismissing the criminal appeal and upholding the judgment and order, dated 23-05-2006 of the learned trial Court. 2. I have heard Ms. P. Bhattacharyya, learned counsel appearing on behalf of accused revision petitioner and Mr. P.S. Lahkar, learned Additional Public Prosecutor, Assam. 3. The facts leading to the prosecution case is that a 709 mini bus, bearing registration No. AS-05-7575 was coming from Nagaon to Golaghat, met with an accident at Haldhibari. The passengers in the bus got injured. One of the passengers, namely, Abdul Malik died at the spot. The aforesaid mini bus, while proceeding towards Golaghat, the driver of the said bus noticed a Maruti car coming from the opposite side and it was about to collide with the bus. To avoid the collision, the driver of the mini bus took left turn, while the bus was on move, and it rolled down on the road. The passengers sustained injuries and one of the passengers died as a result of the accident. 4. On the above facts, the brother of the deceased, Majibur Rahman, lodged an FIR with Kohora Police Outpost, which forwarded the same to Bokakhat Police Station, and the same was registered as Bokakhat Police Station Case No. 114/2003, under Sections 279/304(A)/337/338 of the IPC, investigated into it, collected evidence, and then, submitted charge-sheet under Sections 279/304(A)/337/338 of the IPC against the accused-revision petitioner. 5. 5. On appearance of the accused-petitioner, a formal charge, under Sections 279/304(A)/ 337/338 of the IPC was framed to which he pleaded innocence. Therefore, the trial commenced. In the statement recorded under Section 313 Cr.P.C. 1973 the accused- petitioner denied the allegations made against him and also declined to adduce any evidence from his side. 6. In this case, the prosecution examined as many as 7 witnesses, including the Investigating Police Officer and the defence examined none. Thereafter, vide judgment and order, dated 06-07-2003, the learned trial Court convicted the accused-revision petitioner, as stated above. On appeal, the learned Sessions Judge, Golaghat, affirmed the judgment of the learned trial Court convicting and sentencing the accused-revision petitioner, as indicated above. 7. I have meticulously scanned the evidence on record and it appears therefrom that the accident took place involving the aforesaid mini bus No. AS-05-7575 is an admitted position. There is also clear evidence on record to show that some of the passengers of the said mini bus got injured in the accident and one of them died. 8. Now, the question to be decided by this Court is whether it is due to negligent driving on the part of the accused-revision petitioner that some passengers got injured and one passenger died. 9. The evidence of PW-3, PW-4 and PW-5 makes it appear that they were travelling in the vehicle when the accident occurred and they were heard saying in their evidence that while the accused-revision petitioner tried to avoid the head on collision with the Maruti car, turned the bus towards the left, and due to high speed, it rolled down on the road itself. As regards the speed, none of the witnesses were found to be definite in their evidence. But the evidence reveals that the accident, resulting in the injuries and the death, took place when the accused revision petitioner tried to avert head on collision with a Maruti car. 10. In the considered view of this Court, this can be an error of judgment and not negligence; rather, the attempt of the accused-revision petitioner to turn the vehicle towards the left to avert an accident with the Maruti car coming from the opposite side, can best be said to be an error of judgment. 10. In the considered view of this Court, this can be an error of judgment and not negligence; rather, the attempt of the accused-revision petitioner to turn the vehicle towards the left to avert an accident with the Maruti car coming from the opposite side, can best be said to be an error of judgment. Therefore, negligence cannot be attributed to the action of the accused-revision petitioner in turning the bus towards the left of the road to avert the impending head on collision with the Maruti car. 11. The offences under Sections 337 and 304(A) of the IPC, in the instant case, is dependent on the decision of the alleged offence under Section 279 of the IPC. There is no instance in the evidence on record to show that the vehicle was driven in a rash and negligent manner in a public way by the accused-revision petitioner. Merely saying that it was in excessive speed does not necessarily mean that the accused-revision petitioner had driven the vehicle in a rash and negligent manner. In the absence of any definite evidence as regards the speed of the vehicle, on the basis of the observation of the passengers, it cannot be assumed that it was in excessive speed. 12. In the considered view of this Court, the evidence led by the prosecution is completely insufficient to rope the accused-revision petitioner with the commission of the alleged offences, particularly, when there is an admission that accident took place while the accused-revision petitioner tried to avert head on collision with the Maruti car coming from the opposite direction. 13. The revision petition is, therefore, allowed. The judgments of the learned trial Court as well as the learned appellate Court are set aside. 14. Send down the LCR along with a copy of this judgment and order.