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2021 DIGILAW 201 (TRI)

Sukanta Paul @ Suman v. State of Tripura.

2021-11-10

S.G.CHATTOPADHYAY

body2021
JUDGMENT By means of filing this criminal revision petition, petitioner has challenged the judgment and order dated 04.06.2020 passed by the Session Judge, South Tripura, Belonia in Criminal Appeal No.04 of 2020. The Chief Judicial Magistrate, South Tripura, Belonia by his judgment and order dated 11.12.2019 passed in Case No. PRC(SP) 91 of 2014 convicted the petitioner under Section 279 and 338 IPC and sentenced him to R.I for one year and fine of Rs.1,000/- with default stipulation for offence punishable under Section 338 IPC without passing any separate sentence under Section 279 IPC. The learned Session Judge by the impugned judgment modified the sentence to R.I for three months and fine of Rs.1,000/- with default stipulation. [2] Aggrieved petitioner has challenged the impugned judgment passed by the learned Session Judge by means of filing this criminal revision petition mainly on the following grounds: (i) The appellate Court did not take into consideration the infirmities appearing in the prosecution evidence. (ii) The appellate Court did not appreciate the fact that the road conditions and mismanagement of traffic movements were wholly responsible for the said accident and driver had no fault at all. (iii) The appellate Court did not take into consideration the age and antecedents of the accused and other relevant factors while deciding the quantum of sentence. [3] The factual background of the case is as under: Swapan Bhowmik of Laxmichara, Baikhora lodged a written complaint with the Officer-in-Charge of Baikhora police station alleging that an Auto Rickshaw bearing registration No.TR-03-A-3040 hit his younger brother Parimal Bhowmik from his back when his brother was walking to Baikhora bazaar from home. Immediately after the accident, his brother was brought to AGMC and GBP Hospital, Agartala in critical condition. It was alleged by the informant that the accident took place as a result of rash and negligent driving of the offending vehicle. [4] Based on the said FIR, Baikhora Police Station Case No.12 of 2014 under Sections 279 and 338 IPC was registered and the case was taken up for investigation. Having completed investigation police submitted charge sheet against the accused for having committed offence punishable under Section 279 and 338 IPC. [5] Initially trial commenced in the Court of the Judicial Magistrate of the First Class where the accused was examined under Section 251 Cr. P.C. Accused pleaded not guilty to the accusation. Having completed investigation police submitted charge sheet against the accused for having committed offence punishable under Section 279 and 338 IPC. [5] Initially trial commenced in the Court of the Judicial Magistrate of the First Class where the accused was examined under Section 251 Cr. P.C. Accused pleaded not guilty to the accusation. Prosecution witnesses were then summoned by the trial court. [6] In the course of trial, as many as eight prosecution witnesses were examined and four documents were introduced as Exbt.1 to Exbt.4 on behalf of the prosecution. After the recording of prosecution evidence was over, the learned Chief Judicial Magistrate had taken up the trial of the case in his court. Accused was examined under Section 313 Cr. P.C. He pleaded innocence and claimed that the charge was foisted on him. Accused petitioner declined to adduce any evidence on his defence. [7] The learned Chief Judicial Magistrate on appreciation of evidence held that on the material day when the victim was going to the house of his sister at Baikhora from his home, the offending vehicle hit him from behind and caused fatal injuries to him. The trial court held that accident occurred as a result of rash and negligent driving of the vehicle which could be avoided by a careful driving. Learned Trial court held the accused petitioner guilty of offence punishable under Section 279 and 338 IPC, but he sentenced the petitioner as aforesaid only for the offence committed under Section 338 IPC. No separate sentence was awarded to the petitioner under Section 279 IPC in view of Section 71 IPC. [8] In appeal, the learned Sessions Judge did not find any fault with the judgment of the learned Trial court however the sentence was modified from R.I for one year to R.I for three months by the appellate court without making any change in the amount of fine. The learned Sessions Judge recorded the grounds on which he upheld the judgment of the trial court in paragraph-12 of his judgment which is as under: “12. In this case I/O is not examined by the prosecution. But evidence of PW-8, owner of the offending vehicle under whom the appellant was serving admitted the fact that he knew about the fact of accident involving his vehicle and that on the relevant date and time he entrusted appellant to drive the vehicle. In this case I/O is not examined by the prosecution. But evidence of PW-8, owner of the offending vehicle under whom the appellant was serving admitted the fact that he knew about the fact of accident involving his vehicle and that on the relevant date and time he entrusted appellant to drive the vehicle. During his cross-examination except denial defence did not make out anything thereto that the evidence of PW-8 could not be believable. It is true that FIR was delayed by fifteen days. But it is also true that at the time of lodging of ejahar the informant (PW-1) did not mention the name of the driver in the ejahar and he also admitted during cross-examination that he lodged the case against the Auto rickshaw bearing No. TR-03A-3040. Record shows that the victim sustained grievous injury. He was first taken to Baikhora PHC and from there he was referred to TSD Hospital, Udaipur and thereafter he was taken to AGMC & GBP hospital, Agartala. Report of the medical officer clearly proved that the injury was grievous in nature. In the FIR explanation was given that delay was occasioned as he was engaged in treatment of his brother and that explanation is quite justified as because the injured sustained grievous injuries and he had to be shifted thrice in hospital. So, delay in lodging the ejahar cannot be fatal to the prosecution when the owner of the offending vehicle under whom the appellant was serving clearly supports involvement of his vehicle in this case stating that accused was driver of his vehicle at the time of accident and evidence of PW-3, Sri Sanjib Biswas clearly shows that he is an independent witness and he has got no enmity with the appellant and he also identified the accused person and he witnessed the entire incident and his evidence clearly shows that the Auto rickshaw came in a very high speed and dashed the victim from behind who was going in the same direction. Driving of a vehicle in the same direction and dashing a person from behind prima facie proves that accident could be avoided if the driver of the offending vehicle coming from the back side was cautious. So, it is a clear case of negligent driving of the vehicle. There is no evidence that the injured at that point of time suddenly tried to cross the road. So, it is a clear case of negligent driving of the vehicle. There is no evidence that the injured at that point of time suddenly tried to cross the road. Defence also did not suggest anything in this regard. As such, non-examination of I/O is also not fatal to this case, as the defence did not dispute the place of occurrence also. So, I find no error in the findings of learned trial Court who convicted the appellant under Sec. 279 and 338 of IPC.” [9] Heard Mr. D. Datta, learned counsel appearing for the petitioner. Also heard Mr. S. Debnath, learned Additional Public Prosecutor representing the State. [10] It is contended by Mr. Datta, learned counsel that the accused-petitioner is a very poor man who lives hands to mouth. Counsel submits that he drives a rented auto rickshaw and maintains a family consisting of his parents, wife and children. Counsel submits that the whole family of the petitioner will be starving if he is sent to jail. Counsel further submits that neither the trial court nor the appellate court had taken into consideration the fact that the accident occurred in a very crowded area in front of the Maruti stand where there are frequent movements on huge number of vehicles. Counsel contends that the accident actually occurred due to mismanagement of traffic movements at the place of occurrence. Without cogent and reliable evidence accused should not have been held guilty only because he was driving the vehicle. Counsel submits that there was no investigation to ascertain as to whether the injured had any fault. Even the investigating officer has not been examined. As a result accused was denied opportunity to cross-examine him on vital issues to rebut the prosecution case. Under the said premises counsel urges for setting aside the impugned order. [11] Mr. S. Debnath, learned Additional Public Prosecutor on the other hand submits that there is clear proof of negligence on the part of the accused petitioner in driving his vehicle. He did not exercise due care to the pedestrians as a result of which an innocent pedestrian received injuries in the accident. Counsel submits that his conviction may be upheld. S. Debnath, learned Additional Public Prosecutor on the other hand submits that there is clear proof of negligence on the part of the accused petitioner in driving his vehicle. He did not exercise due care to the pedestrians as a result of which an innocent pedestrian received injuries in the accident. Counsel submits that his conviction may be upheld. With regard to sentence, counsel submits that in view of the age and occupation of the accused petitioner and other facts and circumstances of the case appropriate order, as this Court may deem fit and proper, may be passed. [12] In the course of their arguments learned counsel referred to the evidence of the prosecution witnesses. [13] PW-1, is the informant brother of the injured who did not witness the occurrence. After the accident took place, he received the information at home and rushed to the place of occurrence where he found his injured brother lying on road. With the help of local people he brought the injured to the district hospital at Udaipur from where he was referred to AGMC and GBP hospital at Agartala for treatment. Later, the PW lodged written FIR at the police station based on which the case was registered. In his cross examination lot of suggestions were put to the witness by the cross-examiner. The PW however, stuck to his statement made out in his examination in chief. [14] PW-2, is the injured himself. In his examination-in-chief he asserted that on 16.02.2014 at about 6.30 PM for going to the house of his sister at Baikhora he reached near the Maruti Stand where suddenly he was hit by an auto rickshaw from behind. He collapsed on the ground and raised alarm. After hitting him, the driver fled along with his vehicle. He said that as a result a of the accident, he received fracture on his right shoulder and both of his legs. According to him the accident occurred as a result of rash and negligent driving of the vehicle. After the accident, he was treated in the district hospital at Udaipur for four days and thereafter he was referred to AGMC and GBP hospital at Agartala where he was treated as an indoor patient for 17 days. In his cross-examination, he stated that the accident occurred on the National Highway. He denied various suggestions which were put to him by the cross-examiner. In his cross-examination, he stated that the accident occurred on the National Highway. He denied various suggestions which were put to him by the cross-examiner. [15] PW-3, Sri Sanjib Biswas also claimed to be an eye witness. He asserted that he saw the accident from a distance of about 300 cubits away from the place of occurrence. He had seen the offending vehicle hitting the injured. The PW further stated that accident occurred because of offending vehicle was being driven in a “speedy” manner. In his cross-examination, he stated that he reached the spot where the accident took place three minutes after the occurrence. [16] PW-4, did not give any evidence at all. He became hostile to the prosecution and at the instance of the Addl. Public Prosecutor, he was declared hostile witness and he was subjected to cross-examination by the Addl. Public Prosecutor. Nothing could be extracted from him in favour of the prosecution. [17] PW-5, Sri Ranjit Nandi is not an eye witness. He appeared at the place of occurrence after hearing hue and cry and came to know that the accident occurred as a result of rash and negligent driving of the offending vehicle. [18] PW-6, Dr. Samir Das gave evidence with regard to the injuries suffered by the victim. He identified his report as Exbt.3. According to the witness, the injured suffered fracture on his left leg and lacerated injury on his right foot. X-ray was done which confirmed the fracture on his left leg. The doctor told the court that the patient was admitted in the hospital with a history of road traffic accident on 16.2.2014. In his cross-examination he suggested that such injury could have been caused by falling on a hard surface. [19] PW.7 is the scribe of the ejahar who told the court in his testimony that he had written the FIR following the dictation of the informant. [20] PW.8, Sri Sanjoy Chakraborty is the owner of the offending vehicle. He stated that he came to know about the accident in which his vehicle was involved. He also stated that one Parimal Bhowmik (PW-2) sustained injury in the said accident. [21] The evidence discussed hereinabove would demonstrate that only two witnesses claimed to be eye witnesses to the occurrence. Among them, PW-2 is the injured himself. PW-3, Sanjib Biswas claimed to have seen the accident from a distance of 300 cubits. He also stated that one Parimal Bhowmik (PW-2) sustained injury in the said accident. [21] The evidence discussed hereinabove would demonstrate that only two witnesses claimed to be eye witnesses to the occurrence. Among them, PW-2 is the injured himself. PW-3, Sanjib Biswas claimed to have seen the accident from a distance of 300 cubits. With regard to the fault of the driver of the offending vehicle, PW-1 asserted that the vehicle was driven in a rash and negligent manner and PW-3 claimed that he saw the vehicle being driven in a “speedy” manner. There is no evidence as to how the accident took place. Evidently, the accident took place in front of the „Maruti stand? and naturally it would be a crowded place where there would be frequent movements of vehicles. A very shallow investigation has been done in this case. The I.O did not present any material with regard to the exact position of the offending vehicle and the injured when the accident took place. Even the I.O was not examined in the course of trial. There is no reliable evidence to know as to how and from which location PW-3 had witnessed the occurrence. Other than the injured he is the only eye witness to the occurrence who in his cross examination had categorically stated that he appeared at the place of occurrence 03 (three) minutes after the accident. Therefore, his statement in his examination-in-chief that he had seen the occurrence from a distance of 300 cubits appears to be doubtful. Guilt of the accused cannot be presumed merely because he was driving the vehicle. Evidence available on record is not enough to accept the charge against the accused. Accused is charged with a criminal offence which needs to be proved beyond reasonable shadow of doubt for his conviction and sentence. In the case in hand, there is no evidence with regard to the guilt of the accused except the omnibus statement of two witnesses that the accident occurred due to rash and negligent driving. In these circumstances, it would not be safe to convict and sentence the petitioner. [22] For the reasons stated above, the impugned judgment is set aside and the criminal revision petition stands allowed. Convict is set at liberty. [23] In terms of the above, the case is disposed of. Pending application(s), if any, shall also stand disposed of. Send back the LCR.