Tripura High Court
Sri Anup Paul Son Sri Narayan Chandra ... vs The State Of Tripura Represented By Pp on 24 November, 2021
Author: S.G. Chattopadhyay
Bench: S.G. Chattopadhyay
Page 1 of 13
HIGH COURT OF TRIPURA
AGARTALA
Crl.Rev.P.No. 68 of 2019
Sri Anup Paul Son Sri Narayan Chandra Paul Resident of village-
Kalinagar, PO and PS Belonia, District-South Tripura, Pin-799155
-----Petitioner(s)
Versus
The State Of Tripura Represented by PP, High Court of Tripura,
Agartala.
-----Respondent(s)
BEFORE HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY For Petitioner(s) : Mr. P.K.Ghosh, Adv.
For Respondent(s) : Mr. Ratan Datta, PP.
Judgment and Order(oral) 24.11.2021 [1] By means of filing this Criminal Revision Petition, petitioner has challenged the judgment dated 13.08.2019 passed by the Sessions Judge, South Tripura, Belonia affirming the conviction and sentence of the petitioner under Sections 279 and 338 IPC awarded by the Judicial Magistrate First class, Belonia, South Tripura by judgment dated 31.07.2017 passed in case No.PRC(SP)36 of 2016 whereby the petitioner was sentenced to SI for 2 months for committing offence punishable under Sections 279 IPC and SI for 3 months for committing offence punishable under Sections 338 IPC.
Page 2 of 13[2] Aggrieved petitioner has challenged the impugned judgment by filing this criminal revision petition on several grounds.
[3] The factual background of the case is as under:
Smt.Maya Deb(Sarkar), wife of Mounabrata Sarkar of Madhyapara, Belonia lodged an FIR with the Officer-in-Charge of Belonia police station on 03.01.2016 alleging that at about 11 O'clock in the night on 31.12.20215 a speeding vehicle bearing registration No.TR 08 0280 hit her husband when he was speaking on his cell phone after parking his motor bike bearing registration No.TR 03 B 4922 on the left side of the road in front of a shop near the police station. The informant wife of the injured further alleged in her FIR that the offending vehicle was being driven so rashly and negligently that when it hit her husband, he received fatal injuries and immediately he was shifted to Belonia hospital in a critical condition by a fire-service vehicle. From there he was referred to GBP and AGMC hospital at Agartala. As a result of the accident, bone of the left leg of her husband got fractured. She claimed police investigation and prosecution of the accused. [4] Based on her FIR, Belonia P.S. Case No. 2016/BLN/ 001 under Sections 279&338 IPC and Section 187 MV Act was registered and the investigation of case was taken up by Sadhan Page 3 of 13 Majumder, SI of Police of Belonia Police Station [PW-15]. During investigation, the IO visited the crime scene and examined the material witnesses of the case and recorded their police statements under Section 161 Cr.P.C. He had also drawn up hand sketch map [Exbt.7] of the crime scene along with a separate index [Exbt.8].
This apart, he seized the offending vehicle along with the documents of the vehicle and got the vehicle examined by a Motor Vehicles Inspector [PW-16] two weeks after the occurrence. The Motor Vehicles Inspector [PW-16] opined that there was no mechanical disorder in the vehicle when the accident occurred. The IO thereafter, collected the injury report of the victim in which the doctor opined that the injury was grievous in nature and caused by high velocity trauma.
[5] On the basis of such materials collected during the investigation, the IO laid charge-sheet against the accused for having committed offence punishable under Sections 279 and 338 IPC and Section 187 MV Act.
[6] The jurisdictional Chief Judicial Magistrate had taken cognizance of offence on the basis of the prima facie incriminating materials which were placed before the court and explained to the accused the accusation brought against him in terms of Section 251 Cr.P.C. Accused pleaded not guilty and claimed trial. Page 4 of 13 [7] In the course of trial, prosecution examined as many as 16 witnesses including the first informant [PW-1] and her injured husband [PW-9].
[8] Apart from adducing the oral evidence of the prosecution witnesses, prosecution also relied on 11 exhibits [Exbt.1 to Exbt.11/2]. After the prosecution evidence was closed, accused was examined under Section 313 Cr.P.C. Defence case is a plain denial of the prosecution charge. Accused claimed that he did not drive the offending vehicle and he was falsely implicated in the case. He wanted to adduce evidence on his defence. But, ultimately he did not adduce any evidence on his defence.
[9] On appreciation of evidence, the trial court came to the conclusion that accused caused grievous hurt to Maunabrata Sarkar alias Lalu Sarkar by rash and negligent driving of his vehicle and therefore, he was convicted and sentenced for having committed offence punishable under Sections 279 and 338 IPC. The trial court however, acquitted him of the charge of Section 187 MV Act viewing that charge of violation of Section 132 or Section 133 or Section 134 of the MV Act was not proved against the accused because no one had seen him fleeing with his vehicle after committing the accident. Since the trial court found that charges under Sections 279 and 338 IPC was established, petitioner was Page 5 of 13 convicted and sentenced for those offences.
[10] Aggrieved petitioner preferred appeal against the judgment of the trial court before the Sessions Judge, South Tripura, Belonia. Learned Sessions Judge, re-evaluated the entire evidence and came to the conclusion that there was no reason to disagree with the findings of the learned trial court. Viewing thus, the learned Sessions Judge affirmed the conviction and sentence of the petitioner.
[11] Heard Mr.P.K.Ghosh, learned advocate appearing for the petitioner and Mr. Ratan Datta, learned PP representing the State respondent.
[12] Counsel appearing for the petitioner contends that no evidence was produced on behalf of the prosecution to prove recklessness on the part of the accused and therefore, his conviction under Section 338 IPC is completely erroneous. Counsel argues that even if, for the sake of argument it is assumed that the victim received injuries from a road traffic accident, obviously such accident occurred due to his contributory negligence because admittedly he was on his motor bike at the time of occurrence and while driving his bike he was speaking on his cell phone. Counsel submits that plea of the victim that he parked his motor bike for speaking on his cell phone is entirely false because evidence Page 6 of 13 adduced on behalf of the prosecution does not support such plea of the victim. Counsel further, submits that the trial court has recorded contradictory findings in the judgment because trial court acquitted the accused of the charge of Section 187 MV Act viewing that no one had seen him fleeing away from the place of accident whereas he was held guilty for committing such accident on the basis of the statements of the same witnesses that accused fled with his vehicle after hitting the victim. Arguing thus, counsel urges the court for setting aside the conviction and sentence of the petitioner. [13] Mr.Ratan Datta, learned PP contends that concurrent findings of the courts below are based on sound evidence. The trial court as well as the appellate court has given reasoned decision after complete evaluation and re-evaluation of the prosecution evidence and therefore, there is no reason to interfere with the impugned judgment.
[14] In the course of their arguments counsel representing the parties had taken me to the evidence of the prosecution witnesses. PW-1, is no eye witness to the occurrence. She heard about the occurrence after her injured husband was taken to hospital.
In her cross examination she categorically stated that she did not witness the accident. She came to know about the Page 7 of 13 accident from PW-3, PW5 and PW-6.
[15] Section 279 IPC prescribes punishment for rash driving or riding a motor vehicle on public way in a manner so rash and negligent which is likely to endanger human life or likely to cause hurt or injury to any other person. Similarly Section 338 IPC prescribes punishment for causing grievous hurt to any person by doing any rash or negligent act which is likely to endanger human life or personal safety of others. Even though there is a distinction between the offences created under the two statues the common element involved in both the offences is the element of recklessness which is likely to endanger human life or the personal safety of others. Therefore, proof of recklessness is a sine qua non to establish charge under Section 279 or Section 338 IPC. [16] Since PW-1 did not see the accident herself, her evidence is not of much relevance. PW-2 Sibupada Shil stated that he was on his scooter near the place of occurrence at the material time. He had seen that the offending vehicle was being driven in a rash and negligent manner which hit the husband of the first informant and caused his injuries.
In his cross examination he stated that the injured was speaking on his mobile phone standing in front of a shop at the place of occurrence.
Page 8 of 13[17] PW-3 Bhulan Deb also claimed to be the eye witness to the occurrence. He was returning to home after closing his restaurant. He noticed the offending vehicle coming from the side of the BKI school and in the twinkling of his eyes the accident occurred. He rushed to the spot where he met the injured lying on the road. He did not say anything about rashness or negligence on the part of the accused in driving the offending vehicle. [18] PW-4 Sujan Ray, stated in his evidence that he was gossiping at a nearby place along with his friends from where he saw the accident taking place. He also did not attribute any negligence to the accused in driving his vehicle. [19] PW-5 and PW-6 gave similar evidence. Both of themn were sitting together at a nearby place along with PW-4 from where they had seen the accident taking place. According to PW-5, the accused drove his vehicle in a rash and negligent manner which resulted in the accident. PW-6 also attributed rashness and negligence to the accused driver.
[20] PW-7 Rajib Sarkar is no eye witness to the occurrence. He heard about the occurrence from his aunt Maya Deb (Sarkar) who is the first informant of this case. Therefore, his evidence does not have any relevance.
Page 9 of 13[21] PW-8 is the owner of a Xerox shop in front of which the alleged accident took place. The PW stated that after closing his shop he went to a nearby temple from where he heard a robust sound and turned back. The accident occurred by that time in which husband of the first informant received fracture injury in his leg. He did not witness the accident. He however, came to know that the accident occurred due to rash and negligent driving. [22] PW-9 is the informant. As per his version, on his way back home on his motor bike, he received a call on his mobile. Immediately he parked his bike to respond to the call. At that time the offending vehicle hit him in front of a Xerox shop as a result of which bone of his left leg was fractured. The PW stated that the accident occurred due to rash and negligent driving of the vehicle. [23] PW-10 is the fireman who transported the victim to hospital in a fire service vehicle after the occurrence. PW-11 is also a fireman who gave same evidence. PW-12 was the scribe of the ejahar who had no first-hand knowledge about the accident. PW-13 is a medical officer who attended the injured at Belonia hospital who was reported to have received the injuries in a road traffic accident. The PW examined the injured and found multiple injuries including fracture in the left leg of the injured. PW-14 is another Page 10 of 13 medical officer who examined the injured at AGMC and GBP hospital at Agartala and found similar injuries in his body. [24] PW-15 is the IO of the case who stated that he laid charge sheet against the accused since materials collected by him during investigation prima facie supported the charge against the accused. PW-16 is a Motor Vehicles Inspector who examined the offending vehicle at the police station 15 days after the occurrence and opined in his report that accident did not occur due to any mechanical fault of the vehicle.
[25] The evidence discussed herein above would demonstrate that except the omnibus statement of some of the witnesses, there is no other cogent evidence with regard to negligence and recklessness on the part of the accused driver. Undoubtedly the investigating agency has done a shallow investigation in the case. Even though the IO visited the crime scene and he had drawn up hand sketch map of the place of occurrence with a separate index, the map[Exbt.7] and index [Exbt.8] do not indicate to the exact location of any of the eye witnesses as well as their distance from the place of occurrence who claimed to have seen the accident. In absence of such material truthfulness of their statements cannot be ascertained. Moreover, a Page 11 of 13 critical examination of the eye witnesses will show that all eye witnesses did not attribute negligence to the accused driver even though they claimed to have seen the accident happening from the same place.
[26] PW-2, Shibu Pada Shil told the trial court that he had seen the accused negligently driving his vehicle where as PW-3, Bhulan Deb and PW-4 Sujan Roy who claimed to have witnessed the accident together almost from the same place, did not attribute any negligence or recklessness to the accused. [27] In a case of road traffic accident the topography of the place of occurrence, frequency of vehicular movements at that place, width of the road are some of the relevant considerations. The investigating agency did not present any material before the trial court on those aspects.
[28] As discussed, some of the witnesses have simply stated that the vehicle was driven in rash and negligent manner. Without any concrete proof of rashness and negligence, criminal liability cannot be attributed to the accused driver on the basis of such omnibus statements even though it has been established by the medical evidence that the victim received fracture injuries from the said accident. Victim's statement is not also free from doubts. Page 12 of 13 Victim stated that he was returning home on his motor bike at the time of occurrence. It was 11 O'clock in the night. Having received a call in his mobile, he parked his bike at the road side to respond to the call. There is merit in the argument of the defence counsel that it is quite improbable that the victim would park his vehicle to respond to a call on his mobile at such late night when he was in a rush to reach home. It is nobody's case that accused was drunk or his vehicle was overloaded at the time of the accident. Obviously, the road was almost free at that hour of the night. Victim stated that he was on the extreme side of the road and his motor bike was kept parked while he was speaking on his mobile. At the time the offending vehicle hit him. Had it been so, there would have been more extensive damage to life and property. This apart, neither in the seizure list nor anywhere in the report of the investigating agency, there is any mention with regard to any damage caused to the offending vehicle as a result of such accident. The IO should have also produced the bike of the victim before the Motor Vehicles Inspector for ascertaining as to whether there was any collision between the two vehicles. This was not done by the IO. [29] In such circumstances, the prosecution case cannot be said to have been proved beyond reasonable shadow of doubt and Page 13 of 13 the benefits of such doubts should be given to the accused. [30] For the reasons stated above, accused stands acquitted of the charges under Sections 279 and 338 IPC.
Resultantly, the Criminal Revision Petition stands allowed and the case is disposed of.
Pending application(s), if any, shall also stand disposed of.
Return the LC record.
JUDGE Saikat Sarma, PS-II