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2019 DIGILAW 173 (GAU)

MONORANJAN KONWAR v. STATE OF ASSAM

2019-02-07

RUMI KUMARI PHUKAN

body2019
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. Heard Mr. U Dutta, learned counsel for the petitioner and Mr. BJ Dutta, learned Addl. Public Prosecutor for the State. None appears for the respondent no.2. 2. This revision is directed against the order of the learned Sessions Judge, Morigaon dated 19.12.2013 in criminal appeal 27/2013 whereby the order of the learned CJM, Morigaon dated 8.7.2013 in GR case 1028/2011 u/s 304(A) of the IPC is upheld. 3. The prosecution case in brief is that the respondent no.2 (informant) on 5.11.2011 lodged an ejahar at Mikirbheta Police Station alleging that on 31.10.2011 at about 10.45 AM a Pulsar motorcycle bearing number plate AS-21A-2499 coming from Mikirbheta at a high speed in negligent manner knocked down one Smt. Jamuna Devi from her front side and she sustained grievous injury and was taken to Morigaon Civil Hospital where she succumbed to her injury. 4. On the basis of this ejahar Mikirbheta PS case 191/2011 u/s 279/338/304(A) of the IPC was registered followed by GR case 1028/2011. The police investigated the case and submitted chargesheet under the said Sections of law against the petitioner. On receiving summons petitioner appeared before the learned trial court. The charge was explained to him. He pleaded not guilty and demanded a trial. 5. The prosecution examined six witnesses. Petitioner was examined u/s 313 of the CrPC. The defence did not adduce any evidence. The learned trial court after hearing both sides held the petitioner guilty u/s 279/304(A) of the IPC and sentenced him to s/i for three months u/s 304(A) of the IPC and s/i for two months u/s 279 of the IPC by the order dated 8.7.2013 in GR case 1028/2011. The sentences were directed to run concurrently. Aggrieved, petitioner filed an appeal. 6. The learned Sessions Judge after hearing the parties set aside the conviction u/s 279 of the IPC and upheld conviction u/s 304(A) of the IPC and directed the petitioner to surrender before the trial court within a month to serve the sentence by the impugned order. Hence this revision. 7. The learned counsel for the petitioner submits that the learned courts below wrongly appreciated the evidence on record by holding the petitioner guilty u/s 279/304(A) of the IPC as, there was no such evidence about rash and negligent driving of the vehicle by the petitioner. Hence this revision. 7. The learned counsel for the petitioner submits that the learned courts below wrongly appreciated the evidence on record by holding the petitioner guilty u/s 279/304(A) of the IPC as, there was no such evidence about rash and negligent driving of the vehicle by the petitioner. Secondly, in their evidence PW2, PW3 and PW5 contradicted each other about the time of the accident and the vehicle involved and so their evidence is unreliable. Thirdly, as per the FIR the incident took place at about 10:45 AM on 31.10.2011 and the victim succumbed to her injury on the same day at the said hospital, whereas the IO(PW7) stated in his evidence that he was informed by the O-C at about 1:00 PM on 30.10.2011 about the death of the victim and then he reached the spot, recorded statement of witnesses, prepared inquest report and seized the motorcycle but no document indicating that the motorcycle was seized was produced by the prosecution and so the evidence of PW7 is also unreliable. 8. Heard the argument put forward by Mr. U Dutta for and on behalf of the petitioner who has led the Court through the evidence on record in support of his contention as stated above. The learned counsel for the state-respondent has however submitted that there is no illegality or irregularity in the findings of both the forums and it contends that even in absence of specific averments by the witnesses about the rash and negligent driving by the petitioner but the circumstances under which the victim died on the road when the vehicle of the accused hit against her, itself reveals the rash and negligent driving. 9. I have considered the submission of learned counsel for both the parties and the impugned judgment and order and the evidence on record. It is to be noted that there are three eye-witnessed to the occurrence i.e. 2, 3 and 5 and all of them have given evidence that death of victim Jamuna Devi occurred as soon as she was knocked down by the motor-cycle driven by the accused. Their evidence remains unshaked even in the cross-examination also and they have denied the suggestion of the defence side that deceased sustained injury by falling on the road due to her illness. Their evidence remains unshaked even in the cross-examination also and they have denied the suggestion of the defence side that deceased sustained injury by falling on the road due to her illness. All these three witnesses were along with the deceased at the time of occurrence and they have given a clear evidence that it was the accused who coming from opposite side knocked down the deceased on the road as a result of which she sustained injury and subsequently died. In such eventuality the suggestion by the defence that the victim died due to the injury sustained by her by falling on the road will not help the defence of the accused. The defence has not denied the occurrence nor the presence of the accused at the relevant time. The medical officer/PW-4, who conducted the post-mortem examination on the body of deceased also opined that death was due to hemorrhage and shocked and as a result of injury sustained by the deceased. The IO/PW-7 has also stated in his evidence that at the time of investigation, the witnesses stated before him that the accused/appellant drove the vehicle with high speed and knocked down the deceased by his vehicle and she succumbed to her injury. 10. From the overall assessment of the evidence on record, there can be no other conclusion other than the fact that it was the accused/appellant who drive the vehicle without proper care and attention and hit the deceased women on the road resulting death of women. The submission of learned counsel for the petitioner that there is lack of evidence regarding rash and negligent driving of the vehicle is not sustainable in the parlance of law. The meaning of the negligence is lack of proper care and attention and the rashness indicates doing certain acts in haste, in a recklessness manner. In the given case, three women were proceeding on the road and the accused coming from the front side hit the women and it itself reveals that he was driving the vehicle in the public road without due care and caution and in a haste. Had there been proper care and attention on the part of the accused, certainly he could have avoided the accident and in the given circumstances it can be attributed with the rash and negligent driving of the vehicle. 11. Had there been proper care and attention on the part of the accused, certainly he could have avoided the accident and in the given circumstances it can be attributed with the rash and negligent driving of the vehicle. 11. It is describable that both the Courts below have duly appreciated the matters on record while arriving at the guilt of the accused. Minor omission herein there and discrepancy regarding mentioning of time of occurrence etc is not destructive of prosecution case as it does not go to the root of the matter. The learned counsel for the petitioner however prayed some leniency on the matter as the incident is of 2011 and the petitioner is in legal battle, facing a lot of trouble and was a young boy at the time of occurrence and have no any earlier criminal antecedent. 12. Having regard all entirety of the matter and the submission made on behalf of accused petitioner, while upholding the conviction and modifying the sentence, the accused is hereby directed to pay a sum of Rs. 10,000/- (Rs. Ten thousand) as fine, in default R/I for 2 (two) months and the same to be deposited before the Court within a period of 2 (two) months from today. The amount so deposited be given to the informant and in his absence to the legal heir of the deceased. Return the LCR forthwith.