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2025 DIGILAW 2090 (GAU)

Siraj Ali, S/o. Lt. Mamaru Ali v. State of Assam

2025-12-17

MITALI THAKURIA

body2025
JUDGMENT : MITALI THAKURIA, J. Heard Mr. D. A. Kaiyum, learned counsel for the petitioner and Mr. B. Sarma, learned Additional Public Prosecutor, for the State respondent. 2. This is an application filed under Section 401 read with Section 397 of the CrPC against the judgment dated 30.05.2015, passed by the learned Sessions Judge, Kamrup, Amingaon in Criminal Appeal No. 01/2015 upholding and confirming the judgment and order dated 10.12.2014, passed by the learned Additional CJM, Kamrup in G.R. Case No. 1332/2014 arising out of Palashbari P.S. Case No. 89/2011, whereby the accused petitioner was convicted under Section 279/304(A) IPC and sentenced him to undergo R.I. for 6 (six) months under Section 279 IPC and R.I. for 6 (six) months under Section 304 (A) IPC, with a direction that both the sentences will run concurrently. 3. It is submitted by Mr. Kaiyum, learned counsel that the learned Trial Court as well as the learned Appellate Court did not appreciate the evidence on record in its true perspective and arrived at a wrong decision, convicting the accused revision petitioner under Sections279/304(A) IPC. 4. He further submitted that the prosecution had examined 4 (four) numbers of witnesses in support of their case and out of 4 witnesses, 3 witnesses did not see the occurrence and they are not the eye witnesses to the prosecution case. PW.1, who is the brother of the deceased, only got the information about the accident, but he is not an eye witness. Similarly, both PWs. 2 and 4 also heard about the incident and they are also not the eye witnesses to the incident. It is only PW.3, the informant, who is the only eye witness of the case. It is also submitted by Mr. Kaiyum, learned counsel that the prosecution has not exhibited the bicycle involved in the said accident. He further submitted that the seizure list as well as the post mortem report of the deceased was also not exhibited by the prosecution. 5. As per the evidence of PW.3, on the date of the incident, he along with his wife was coming in a bicycle, when the offending truck hit on the handle of the bicycle coming in a high speed, for which the alleged incident had occurred, causing damage to his bicycle and his wife came under the wheel of the truck and died on the spot. He also sustained some injuries on his person. 6. Mr. Kaiyum, learned counsel mainly stressed on the point that as per the evidence of PW.3, the offending vehicle came in a high speed, but there is no other evidence of any rash and negligent driving of the vehicle to fulfill the ingredients of Section 279 IPC, nor there is any proper evidence that the deceased died due to rash and negligent driving by the accused petitioner. 7. He further submitted that merely the statement of the informant/PW.3 that the truck was in a high speed cannot constitute an offence under Sections 279/304(A) IPC to hold that the accused was driving the vehicle in a rash and negligent manner. He submitted that the accident is admitted and death of the wife of the informant is also admitted, but unless there is rash and negligent driving on the part of the accused petitioner, he cannot be convicted under Sections 279/304(A) IPC. 8. Mr. Kaiyum, learned counsel further submitted that from the statement made by the accused under Section 313 CrPC, that the informant was riding the bicycle with an imbalance condition and even he did not obey the signal given by the accused petitioner and thus, the incident had happened only due to default of the informant and there was no rash and negligent driving on the part of the accused petitioner. 9. To substantiate his plea, Mr. Kaiyum, learned counsel also relied on a decision of this Court in the case of Kriti Singh Vs. State of Assam reported in 2005 2 GauLT 274 and basically emphasised on paragraph 12 of the said judgment, wherein the term defined “rash” and “negligent” has been discussed and it is also held that to constitute an offence under Section 304(A) IPC, the prosecution is to establish the rash and negligent act of the accused which was responsible in resulting to death of the victim and such act of rash and negligence do not amount to culpable homicide. 10. Accordingly, it is submitted by Mr. Kaiyum, learned counsel that the learned Trial Court as well as the Appellate Court did not consider those aspects of the case and passed the order of conviction against the present accused petitioner. 11. Mr. 10. Accordingly, it is submitted by Mr. Kaiyum, learned counsel that the learned Trial Court as well as the Appellate Court did not consider those aspects of the case and passed the order of conviction against the present accused petitioner. 11. Mr. Sarma, learned APP, Assam submitted in this regard that both the learned Trial Court as well as the learned Appellate Court had arrived at a concurrent finding and the revisional court has limited power/jurisdiction. 12. Mr. Sarma, learned APP further submitted that PW.3 is the eye witness and the informant of the case, who was riding on a bicycle and was coming along with his wife, when the said incident had happened. He admitted that the other PWs are not the eye witnesses, but they heard about the incident. 13. Mr. Sarma further submitted that from the discussion made by the learned Trial Court and from the statement made by the accused petitioner under Section 313 CrPC, it is seen that the incident as well as the fact that the accused was driving the vehicle is an admitted position. 14. From the evidence of PW.3, it also reveals that he was coming through Kuccha road by riding on his left side of the road when the offending vehicle coming in a very high speed had hit the handle of the bicycle coming towards right side and thus, the accident occurred, for which the wife of the informant died on the spot. Thus, it is not a case that the accused petitioner was driving the vehicle only in a high speed, but the accident also occurred due to his rash and negligent act, who came towards the right side of the said road and hit the bicycle, which was coming through the Kuccha road. 15. He further submitted that from the evidence of PW.3, it also reveals that he was coming through the Kuccha road in place of the pitch road only for his safety while he was riding the bicycle. Accordingly, it is submitted by Mr. Sarma, learned APP that the learned Trial Court as well as the learned Appellate Court had rightly passed the judgment convicting the present accused petitioner under Sections 279/304(A) IPC and hence, there is no need of any interference by this Court. 16. Accordingly, it is submitted by Mr. Sarma, learned APP that the learned Trial Court as well as the learned Appellate Court had rightly passed the judgment convicting the present accused petitioner under Sections 279/304(A) IPC and hence, there is no need of any interference by this Court. 16. Heard the submissions made by the learned counsel for both sides and I have also perused the case record and the evidence recorded by the learned Trial Court. 17. As per the prosecution case the accused petitioner had hit the handle of the bicycle of the informant coming from the opposite direction in rash and negligent manner which caused the accident and the wife of the informant died on the spot as she came under the wheel of the truck. 18. Both the learned Trial Court as well as the learned Appellate Court had arrived at a concurrent finding and convicted the accused petitioner under Sections 279/304A IPC. 19. The learned counsel for the petitioner basically raised the issue that there is no evidence at all that the accused petitioner was driving the offending vehicle in a rash and negligent manner for which the accident had occurred. However, the accident and the death of the wife of the informant is admitted by the defence. 20. It is an admitted fact that except PW.3 the other witnesses are not the eye witnesses to the prosecution case and they have not seen the occurrence and they subsequently heard about the same that the wife of the informant died due to the said accident. It is only PW.3 who was present along with his wife and when they were coming on a bicycle, the accident had occurred. So, PW.3 is the only vital witness of the prosecution case. 21. From the evidence of PW.3 it is seen that on the alleged date of incident he along with his wife was coming through Kuccha road for own safety and towards the left side of the road, when the offending vehicle coming from the opposite direction in very high speed hit the handle of the bicycle for which he fell down towards the paddy field and his wife came under the wheel of the truck. It is fact that he only deposed that the vehicle was coming in a high speed and inspite of his signal, the truck came towards the right side and hit on the bicycle. 22. But from the evidence of the PW.3 it is seen that he was coming through the Kuccha road and when the truck hit on his bicycle, he fell down towards the paddy field, which otherwise establishes that he was going extreme left of the road and he was not on the pitch road only for his safety, but the truck which was coming from the opposite direction had came towards the right side which is a wrong direction and hit on the bicycle for which the alleged accident had occurred. Thus, it is not a case that the truck was coming in a high speed but it is a case wherein the truck came towards the wrong direction, driving the vehicle in a rash and negligent manner in a high speed and the alleged incident had occurred. 23. In order to convict a person under Section 279 IPC, the prosecution has to prove the following ingredients:-- (i) that the accused was driving the vehicle; (ii) that the accused was driving the vehicle on a public way; (iii) that the accused was driving the vehicle rashly or negligently and (iv) that in endangered human life or to likely to cause hurt or injury to any other person 24. Similarly, in order to fulfil the ingredients of Section 304A IPC, the prosecution is to prove:- (i) the death of the person in question; (ii) that the accused caused the death and (iii) that the accused caused the death by his rash and negligent act, although it did not amount to culpable homicide. 25. Here in the instant case from the reading of the evidences of the PWs, it is admitted that the accident had occurred, the wife of the informant died on the spot and it is also admitted that the accused was driving the vehicle at the time of the alleged accident. 26. 25. Here in the instant case from the reading of the evidences of the PWs, it is admitted that the accident had occurred, the wife of the informant died on the spot and it is also admitted that the accused was driving the vehicle at the time of the alleged accident. 26. Coming to the rash and negligent driving as discussed above from the evidence of PW.3 itself, it is seen that the accused petitioner was driving the vehicle in a very high speed and coming towards the wrong direction, hit the handle of the bicycle causing instant death of the wife of the informant, damage of the cycle as well as the informant also sustained injuries on his person. Thus, it is seen that the prosecution could establish all the ingredients to constitute the offence under Section 279/304A IPC. 27. Coming to the non exhibition of post mortem report and the seizure list, it is seen that the accident and death is also admitted by defence and the defence has no other plea that the wife of the informant died for any other reasons and it is an admitted fact that the incident had occurred wherein the wife of the informant died. 28. The learned Trial Court did not convict the accused petitioner under Section 427 IPC and hence, even in absence of the seizure list of the bicycle, the prosecution could establish the fact that the alleged incident had happened only due to rash and negligent driving of the offending vehicle by the accused petitioner, which also caused the death of the wife of the informant. 29. Accordingly, it is seen that the judgments passed by the learned Trial Court as well as by the learned Appellate Court do not suffer from any legality, correctness and propriety and hence, no interference is required from this Court. 30. Accordingly, this criminal revision petition stands dismissed. 31. Return the TCR forthwith.