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2022 DIGILAW 151 (TRI)

Koushik Das v. State of Tripura

2022-03-24

T.AMARNATH GOUD

body2022
JUDGMENT T. Amarnath Goud, J. - Heard Mr. B. Deb, learned counsel appearing for convict-petitioner. Also heard Mr. S. Debnath, learned Additional Public Prosecutor, appearing for the respondent-State. 2. This present petition has been filed under Section-397 of the Criminal Procedure Code, 1973 read with Section-401 of the Criminal Procedure Code against the judgment and order dated 16.08.2019 passed by the learned Sessions Judge, Dharmanagar, North Tripura in Case No. Criminal Appeal No. 01 of 2019 under Section-374 of Cr. P.C. and thereby upholding the judgment and order of conviction and sentence dated 04.01.2019 passed by the learned Assistant Sessions Judge, North Tripura District, Dharmanagar, in case No. ST/T-2/18/2015 convicting the accused petitioner and sentencing him to suffer RI for 5 years and a fine of Rs. 10,000/- with default stipulation. 3. The factual backdrop of the case, in a nut shell, is that on the basis of a complaint lodged by one Sri Rajen Nath to the effect that on 11.07.2014 at about 1800 hrs. while the father of the complainant was proceeding towards Kali Temple located at Dighalbag Chowmuhani on foot at that time, one white colour Tata Nano car bearing registration No. TR-02-D-0457 which was coming from opposite direction in a excessive speed dashed to the father of the complainant. 4. After receiving the aforesaid written complaint, O.C. Dharmanagar P.S. registered with Dharmanagar P.S. Case No. 71 of 2014 under Section-304 Part-II of IPC. After completion of investigation, I.O. of the instant case has submitted charge sheet against the present petitioner under Sections -279/304 Part-II of IPC and Sections-196/187 of M.V. Act. 5. After filing of charge-sheet, cognizance was taken of offence and after fulfilling all formalities, the case was committed to be learned Asst. Sessions Judge, Dharmanagar, North Tripura, and the charge was framed. In course of evidence, the learned trial Court examined as many as 16 prosecution witnesses in connection with aforesaid case. After the closure of the prosecution evidence, the accused-person was examined under Section-313 of Cr. P.C. to which he denied the veracity of all the prosecution evidences and claimed to be tried. 6. After hearing the arguments of both sides, the learned Court below passed the impugned judgment and order of conviction and sentence convicting the accused as aforestated. After the closure of the prosecution evidence, the accused-person was examined under Section-313 of Cr. P.C. to which he denied the veracity of all the prosecution evidences and claimed to be tried. 6. After hearing the arguments of both sides, the learned Court below passed the impugned judgment and order of conviction and sentence convicting the accused as aforestated. Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence, the petitioner has preferred an appeal before the learned Sessions Judge, North Tripura, Dharmanagar being Criminal Appeal No. 01 of 2019 under Section-374 of Cr. P.C. But, the learned Sessions Judge most arbitrarily and erroneously upheld the judgment of conviction passed by the learned trial Court below. Against the judgment and order of conviction dated 16.08.2019, the petitioner has preferred this petition before this Court. 7. Mr. B. Deb, learned counsel appearing for the petitioner has submitted that both Courts below have committed error both in law and facts and the findings arrived at by both the Courts are illegal, erroneous and perverse against the law and as such, the same is liable to be set aside. The courts below without proper appreciation of evidences on record and also without application of judicious mind convicted the petitioner only on the basis of surmise and conjuncture. Mr. B. Deb, learned counsel appearing for the petitioner in support of his case has submitted that the Court below failed to appreciate the evidence on record properly and also brought to light several lacunas in the prosecution version. 8. He has submitted that PW-1 stated in his examination-in-chief that the incident took place on 11.07.2014 at about 6.00 in the evening near Kali Temple of Dighal Bag Chowmuhani at Katamtala Dharmanagar Road. At that time he was standing in front of Kali Bari Temple and he saw one white colour Nano car was coming from Kadamtala side towards Dharmanagar with excessive speed and suddenly that car dashed one Barindra Nath on the road, who was walking in the left side of the Kadamtala Dharmanagar road towards Kali Temple near Dighal Bag Chowmuhani. He also stated that after dashing the victim, the driver of the vehicle went away from the place with his car. He also stated that after dashing the victim, the driver of the vehicle went away from the place with his car. He has stated that due to several devotees and as the car proceeded quickly from the place occurrence, he could not identify the driver but, subsequently he came to learn that the driver was Koushik Das. 9. In his cross-examination by the counsel on drawing attention to his previous statement recorded under Section-161 Cr. P.C., name of Ajay Debnath was found absent and it was also not found that he stated to Daroga Babu that the incident occurred due to rash and negligent driving of the Nano car. 10. PW-2 in his evidence has stated that on 11.07.2014 in the evening he was present at his workshop of two wheelers near the Kali Temple and at that time hearing hue and cry he came out from the workshop and saw that one Nano car dashed Barindra Nath near the Temple. He further stated that after dashing the victim, the car quickly ran away from the spot. In the cross-examination he has stated that he failed to identify the driver but, stated that he came to know that Koushik Das was the driver. Moreover, PW-2 in his cross-examination has categorically stated that he did not state to Daroga Babu that at that time hearing the sound of accident he came out and saw that one Nano car dashed the deceased. He also admitted that he did not state to Daroga Babu that the car quickly ran away from the spot. Ultimately, he denied all the statements as was recorded previously. Mr. Deb, learned counsel has categorically stated that both PWs.1 and 2 failed to say the number of the vehicle. 11. PW-3 has stated in his deposition that about 2-3 years back his Nano car met with an accident at Dharmanagar and his vehicle was managed by his father Niranjan Saha and he did not see who has taken away his Nano car and on that day evening at about 8.00pm he found his Nano car standing in-front of his shop. He has stated in his examination-in-chief that Daroga babu obtained his signature at night on the blank paper and Daroga babu was accompanied with TSR personnel. He has stated in his examination-in-chief that Daroga babu obtained his signature at night on the blank paper and Daroga babu was accompanied with TSR personnel. In his cross-examination he has stated that declaration does not bear by own handwriting and there is no mentioning of date of declaration and to whom it was made. He also stated that he has not made any statement to the police officer. Surprisingly, this witness i.e. the owner of the vehicle was not declared as Hostile by the prosecution side. 12. PW-4 stated in his examination-in-chief that about 2/3 years back he signed on the seizure list of some documents and his signature on the seizure list on identification marked as Exbt.1/1 and he also stated that he cannot say why the police officer obtained his signature and he also stated that he cannot say the contents of documents on which he put his signature. He has further deposed that he has no idea about the registration number of the offending vehicle. 13. PW-5 in his deposition has stated that he is by profession tea seller and he used to visit Churaibari PS often to supply tea and he also stated that about 2 years back he went to the PS and there he saw one white colour Nano car which was seized by the police officer and then he put his signature on the seizure list and his signature was marked as Exbt.4. Moreover, on being asked by the Court he stated that he did not see taking of anything from the seized nano car by Daroga babu at that time. He also stated that the police officer has not read over the contents of the seizure list. 14. PW-7, the Medical Officer, who conducted the post mortem on the body of deceased and his report was exhibited along with his signature as Exbt.6 & 6/1. In his cross-examination by the counsel he categorically stated that he is an MBBS and he has no expertise in Medico Toxology and forensic Science. He further stated that he handed over the specimen i.e. viscera of the deceased Barindra Nath only to ascertain whether the deceased was intoxicated or having any poison but, no viscera report was collected by the I.O. 15. He further stated that he handed over the specimen i.e. viscera of the deceased Barindra Nath only to ascertain whether the deceased was intoxicated or having any poison but, no viscera report was collected by the I.O. 15. PW8 in his evidence has stated that his father died due to road traffic accident taken place at about 1 year 10 months back in the evening at about 6.00pm at Dighal Bag Chowmuhani near Kali Temple. One Nano car bearing Reg. No. TR-02D-0457 dashed his father at the time of accident and sustained severe injuries. Thereafter, his father was shifted to the hospital and there he died. He further stated that he came to learn about the accident from his uncle Ajay Nath who has a shop of welding at Dighal Bag Chowmuhani and subsequently, FIR was lodged. But in cross-examination he stated that he did not receive any summon of this Court hearing the incident of accident he saw his father after going to Dharmanagar and they have very good relation with Ajay Nath. Mr. Deb, learned counsel for the petitioner has stressed upon this point that PW-8 was not present at the place of occurrence at the time of incident. He heard from his uncle and thereafter he went to the Hospital. 16. PW-9, he has categorically stated that he has a welding workshop at Netaji Para near one Kali Temple, and he knows Birandra Nath who died in a road traffic accident. According to PW-9 the accident took place on 11.07.2014 at about 6.00pm and at that time he was present at this shop. He also stated that the accident occurred at a distance of 40 cubits from his shop. At the relevant point of time after hearing a sound and he saw that one white colour nano car ran way quickly. He informed the Fire Service about the incident. According to him one Koushik Das was driving the car. But, in his cross-examination he has categorically admitted that he did not state to the police officer that he was present at the veranda of his shop which creates strong doubt about his version. 17. PW-8, Rajan Nath, son of the deceased categorically stated that he came to know about the whole incident from one Ajay Nath who was present at the time of incident. 17. PW-8, Rajan Nath, son of the deceased categorically stated that he came to know about the whole incident from one Ajay Nath who was present at the time of incident. But, from his cross examination it becomes very much clear that his presence was doubtful not only that, Ajay Nath was not examined by the I.O. as well as by the prosecution during trial only one Ajay Debnath was examined during trial but that person is not the same person about whom PW-8 i.e. the son of the deceased deposed in his examination-in-chief. 18. PW-10, the Scientific Officer, stated in her cross-examination that she did not mention in her report that she was sure that the nano vehicle met with Road traffic accident. She also stated that she has gathered the history of the case from concerned investigating officer and she did not examine any independent person at the time of her spot visit. She has further stated that she did not mention the manner and circumstances under which the said car met with an accident. 19. PW-15, Pallab Acharjee, seizure witness, who stated that some documents were seized in front of his shop but, he is unable to say the contents of those documents. In his cross examination he categorically stated that he put his signature on the seizure on the request of Daroga Babu and Daroga babu has not read over the contents to him. 20. In view of above discussions and observation it is imperative to relook in to the evidences of the witnesses. It would be evident from the judgment and order of the Appellate Court that the Court convicted the petitioner believing PWs-1, 2 and 9, whereas, PWs-1 and 2 nowhere stated about the number of the offending vehicle or could identify the driver. Whereas PW-9 stated in his cross-examination that he did not state to daroga babu that he was present at the veranda of his workshop and stated in his examination-in-chief that the aforesaid accident due to dashing of the car bearing registration No. TR-02B-0457. Though, other witnesses i.e. according to cross-examination of PW-4, PW-6 and PW-8, the accident occurred due to rash and negligent driving of the vehicle bearing registration No. TR-02D-0457 which his contradictory to each other but, the learned trial Court below without considering that vital aspect of the evidence on record, convicted the petitioner erroneously. 21. Though, other witnesses i.e. according to cross-examination of PW-4, PW-6 and PW-8, the accident occurred due to rash and negligent driving of the vehicle bearing registration No. TR-02D-0457 which his contradictory to each other but, the learned trial Court below without considering that vital aspect of the evidence on record, convicted the petitioner erroneously. 21. PW-14 stated about the declaration disclosing about the name of the driver but in his cross examination he categorically admitted that said declaration does not bear any case reference and he also admitted that he did not seize any register from Niladri Motor workshop. In the hand sketch map also he did not mention the names of the owners of the shop, huts vide marked as Exbt. D to G. 22. The Courts below observed that there was minor discrepancies in the evidences on record but, on proper scrutiny of evidence of the son of the deceased it is crystal clear that the person, who claimed to be an eye witness of the occurrence, is very doubtful. Moreover, the vehicle number as stated by the other witnesses apart from PW-9 are different. 23. It would be evident from the record that there is no iota of evidence on record to suggest that the accused person has committed any offence punishable under Section-304 Part-II because, in the whole evidence there is nothing to suggest that the accused person has committed the alleged crime with an intention to kill the deceased or he has prior intention to kill the deceased. According to the PWs-11 and 12, who were the staff of Niladri Service Centre (Tata), but the Courts below have not considered this fact of the matter. 24. The learned Court below has convicted the accused-petitioner under Section-304 Part (II). To establish a case under this section, the necessary requirements which are required are that the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death. [Ref. State v. Sanjeev Nanda reported in AIR (2012) SC 3104]. The intention of the petitioner was not to cause any harm to the deceased. It was purely because of negligence. The prosecution has failed to establish the crime against the petitioner. [Ref. State v. Sanjeev Nanda reported in AIR (2012) SC 3104]. The intention of the petitioner was not to cause any harm to the deceased. It was purely because of negligence. The prosecution has failed to establish the crime against the petitioner. Courts below have failed to appreciate the contradictions of the evidences of prosecution witnesses and the conspectus of the evidence on record and from the findings of the learned Courts below, it transpire that the statements of the prosecution witnesses are contradictory to each other. 25. This Court is of the view that, the Courts below have committed an error in converting the petitioner under Section 304 (Part-II) of the IPC and the conviction as awarded, calls for a re-look on the basis of the facts already discussed, otherwise this Court will be setting a bad precedent and sending a wrong message to the public. After having found that the offence would fall under Section 304A IPC, not under Section 304(Part-II), the following sentence awarded would meet the ends of justice, in addition to the sentence already awarded by the Courts below. For the purpose of reference, Section-304A is reproduced hereunder: '304A. Causing death by negligence-Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fin, or with both.' 26. The way the prosecution has projected the case and being found serious contradictions and inconsistencies in the statements in course of trial, it would be very difficult for this Court to believe the projected case of the prosecution. It is settled proposition of law that the charge framed against the accused person has to be established and proved beyond any shadow of doubt. Suspicions, however, grave in nature, should not amount to prove. The discrepancies which are found in this case as analyzed above, appeared to be abnormal in nature which is not expected from a normal person. After cautious scrutiny of the evidence and considering the entire chain of circumstances, we find it difficult to arrive at a finding to draw the hypothesis of guilt against the accused-petitioner. 27. Under Section-304A, maximum imprisonment as prescribed is two years, or fine or both. After cautious scrutiny of the evidence and considering the entire chain of circumstances, we find it difficult to arrive at a finding to draw the hypothesis of guilt against the accused-petitioner. 27. Under Section-304A, maximum imprisonment as prescribed is two years, or fine or both. Since the convict-petitioner has not been committed any offence prior to that of the present offence, this Court inclined to sentence him to suffer imprisonment for one year along with fine. Accordingly, the accused-petitioner has been sentenced to suffer rigorous imprisonment for 1(one) year along with a fine of Rs. 5,000/- (Rupees five thousand) only, in default to pay the fine money, the accused-petitioner shall further suffer simple imprisonment for 1(one) month. 28. It is submitted that the convict-petitioner is on bail, as such, I direct the convict-petitioner to surrender before the concerned authority within a period of one month from today. 29. With the modification in the above terms in regard to the sentence imposed upon the petitioner, the present petition stands partly allowed and thus, disposed off. Pending application, if any, also stands disposed off. 30. It is pertinent to mention herein that the if the convict-petitioner does not surrender before the concerned authority within 30 days from today, the concerned authority, shall pass necessary order ensuring the convict-petitioner to suffer sentence as imposed earlier. The period of detention during investigation and trial, if any, shall be set-off from one year sentence as imposed by this judgment. 31. A copy of this order be supplied to the concerned authority, for doing the needful in accordance with law. The benefit of bail, if any, granted to the convict-petitioner shall stand to be cancelled after expiry of one month which will be counted from the date of this judgment.