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2019 DIGILAW 627 (GAU)

Gofur Ali v. State of Assam

2019-05-20

RUMI KUMARI PHUKAN

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JUDGMENT : 1. This Revision is preferred against the concurrent finding of the Court below, whereby the petitioner has been convicted under Section 279 and 337 of IPC in connection with GR Case No.394/2009 and by the trial court the said conviction has been affirmed. 2. I have heard Mr. A Roshid, learned counsel for the revision petitioner and also heard Mr. B.J. Dutta, learned counsel for the State. 3. On 25.03.2009, the present accused/petitioner was driving an auto rickshaw and on the way at BOC, Goalpara, the accused/petitioner dashed against one Sri Subudh Pathak and also another Manoj Kumar Das his wife and child as well as his mother in law, Rina Mogor, who were returning from nearby hospital. All these persons sustained injury in the said accident and they were provided medical treatment. After the incident formal FIR was filed by one of the injured, Subudh before the O/C, Goalpara PS against the accused petitioner, who caused the incident by driving the auto rickshaw bearing No. ML-07-A-0319 alleging about rush and negligent driving. 4. The aforesaid FIR was registered as Goalpara PS Case No. 82/2009 under section 279 and 338 IPC corresponding to GR Case No. 394/2009. At the end of investigation, police submitted charge-sheet against the accused/petitioner under Section 279/337/338/427 IPC. 5. The accused petitioner faced the trial and denied the charge that has been framed under Section 279/337/338/427 IPC. During the course of trial the prosecution examine eight witnesses and defence examine none. Plea of defence is of total denial. At the end of the trial, the learned trial court on the basis of the evidence on record find the accused/petitioner guilty under Section 279/337/338 IPC and acquitted him from the liability under Section 427 IPC. The accused/petitioner was convicted under Section 279 IPC and sentenced him to suffer SI for three months and fine of Rs.500/- in default SI for 15 days. Further, he was sentenced SI for three months and fine of Rs.200/- (in default SI for three months) under Section 337 IPC. He was also sentenced for six months RI and fine of Rs.500/- in default further SI for 15 days under Section 338 IPC. 6. Further, he was sentenced SI for three months and fine of Rs.200/- (in default SI for three months) under Section 337 IPC. He was also sentenced for six months RI and fine of Rs.500/- in default further SI for 15 days under Section 338 IPC. 6. On being challenge, the appellate court by its order dated 30.06.2011 affirmed the conviction and uphold the sentence under Section 279/337 IPC and he was sentenced for imprisonment for 20 days and fine of Rs.500 in default SI for five days under Section 279 IPC and sentence for imprisonment for 20 days and fine of Rs.500 in default, SI for 5 days under Section 337 IPC. The legality and validity the aforesaid judgment has been challenged by way of this revision petition. 5. I have considered the submission of the learned counsel for both the parties and also the evidence on record and the impugned orders. 6. At the very outset, the learned counsel for the petitioner has submitted that the petitioner has faced the proceeding under Motor Vehicle Claims Tribunal and compensation has been awarded to the injured persons and that being so the petitioner being the auto driver only this case may be considered leniently also in view of old pendency of the case. 7. On perusal of the evidence on record it reveals that PW-1 was proceeding on a bicycle and PW-2 to PW-4 was proceeding by foot on the road at the time of occurrence and the accused/petitioner by driving his auto rickshaw in high speed and negligent manner knocked down PW-1, who fell down from his bicycle and also hit other witnesses PW-2 to PW-6 by his auto rickshaw, as a result of which, three of them sustained injuries on his person. All these persons has stated that they sustained injuries on different parts of the body for which they were also taken to the hospital for treatment and the medical treatment was provided to them. All the witnesses has specifically stated that the accused/petitioner drove the vehicle in a rush and negligent manner for which the accident has occurred. As it appears the accused/petitioner failed to shake the evidence on record. There was no denial that on the day of occurrence, the accused/petitioner drove his vehicle in rush and negligent manner. All the witnesses has specifically stated that the accused/petitioner drove the vehicle in a rush and negligent manner for which the accident has occurred. As it appears the accused/petitioner failed to shake the evidence on record. There was no denial that on the day of occurrence, the accused/petitioner drove his vehicle in rush and negligent manner. From the manner of the incident itself it reveals that because of his rush and negligent driving the incident took place on a public road which is a busy area. It was incumbent on the part of the petitioner to take due care and caution while there was pedestal and other person ahead him, so as to avoid any such untoward incident on the road. Lack of such proper care is indicative of rash and negligent driving on the part of the accused/petitioner. Although, all the witnesses could not identify the accused/persons by face but it has been asserted that the aforesaid vehicle was involved in the accident and the fact that the accused/petitioner drove the vehicle is clearly made out by the evidence of PW-6, who is the owner of the vehicle who has supported the fact that the accused/petitioner drove the auto rickshaw belonging to PW-6. PW-7 is seizure witness, who happened to sign the seizure list at the time of seizure of that particular auto rickshaw involved in the incident. 8. The Medical Officer/PW-5, who happened to examine the injured persons has also testified and he found two cut injury upon the injured and Subudh (PW-1), Manoj (PW-2) and Sipriha aged about three years, who is the daughter of PW-2, (who is not examined in the present case as one of the injured) PW-5 has stated that one of the injury is grievous and other injuries are simple in nature. 9. The evidence on record has fairly established the offence against the accused/petitioner and as it appears there is no any illegality and irregularity in the decision affirmed by the learned courts below. The accused/petitioner failed to rebut the prosecution case in any material aspect. 10. 9. The evidence on record has fairly established the offence against the accused/petitioner and as it appears there is no any illegality and irregularity in the decision affirmed by the learned courts below. The accused/petitioner failed to rebut the prosecution case in any material aspect. 10. Having regard to the evidence on record and also the submission of the learned counsel for the petitioner while maintaining the conviction under 279/337 IPC, as the matter is old pending of 2009 and the accused/petitioner is on the legal battle since long, this Court is of the considered opinion that sentence of fine will met ends of justice. Accordingly, the accused/petitioner is hereby sentenced to pay a fine of Rs.1000/- under each section in default RI for three months. (Totally Rs.2000/- (two thousand) and amount of fine be deposited before the court within two months from today. 11. Send down the LCR along with a copy of this order.