Gauhati High Court
Habib Ali vs The State Of Assam on 20 July, 2012
Author: I A Ansari
Bench: I A Ansari
Page 1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA;
MANIPUR; TRIPURA; MIZOAM AND ARUNACHAL PRADESH)
CRIMINAL REVISION 542/2004
Habib Ali.
- Petitioner
- Versus -
The State of Assam
- Opposite party
BEFORE
THE HON'BLE MR. JUSTICE I A ANSARI
Advocates present:
For the petitioner : Mr. A. Alam,
For the respondent : Mr. K.A. Mazumdar,
Addl. P.P. Assam
Date of hearing : 20.07.2012
Date of judgment : 20.07.2012
JUDGMENT & ORDER
(ORAL)
This revision is directed against the judgment and order, dated 31.07.2004, passed, in Criminal Appeal No.11(1)/2004, by the learned Additional Sessions Judge, FTC, Karimganj, whereby the learned appellate Court, while sustaining the conviction of the accused- petitioner, under Section 304A IPC, passed, in GR Case No.271/2000, by the learned Chief Judicial Magistrate, Karimganj, by his judgment and order, dated 25.02.2004, reduced the sentence of rigorous imprisonment for a term of one year to a term of six months. Crl. Rev. 542 of 2004 Page 2
2. I have heard Mr. A. Alam, learned counsel, for the accused- petitioner, and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam.
3. The case of the prosecution, may, in brief, be described thus: On 25.03.2000, at about 10 am, a bus, bearing registration No.AMT/792, which the petitioner was driving, capsized and fell into a pond full of water near a place called Balia Tri-junction. As a result of the accident, many of the passengers were injured and one of them, namely, Mustt. Mariam Begum, died. On receiving, in this regard, a telephonic message, on 25.03.2000, at Nilambazar Police Outpost, G.D. Entry No.470, dated 25.03.2000, was made and PW8, a Sub- Inspector of Police, rushed to the place of occurrence and, on arriving there, found that most of the injured passengers had been already taken to Nilambazar Primary Health Center. The police, then, sent the remaining injured to the said Primary Health Centre, seized the vehicle and also the documents connected therewith. PW8 also drew a sketch- map of the place of occurrence, recorded statements of witnesses and lodged an Ejahar at Karimganj Police Station, which is Ext.5. Treating the said Ejahar as First Information Report, a case, under Sections 279/338/427/304A IPC, was registered against the driver of the said bus and, on completion of investigation, a charge-sheet was accordingly laid against the accused-petitioner.
4. The trial commenced with the framing of the charge under Section 304A IPC against the accused-petitioner. To the charge, so framed, the accused-petitioner pleaded not guilty.
5. In support of their case, prosecution examined altogether eight witnesses. The accused was, then, examined under Section 313 Cr.PC and, in his examination aforementioned, the accused-petitioner, while Crl. Rev. 542 of 2004 Page 3 denying that he had committed the offence, which he was alleged to have committed, asserted that on the road, in question, where the occurrence took place, telephone line had been installed by digging the soil and, as the surface the road had soft soil, he lost control of the vehicle and the same fell into a ditch. No evidence was, however, adduced by the defence.
6. Having found the accused-petitioner guilty of the offence charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above.
7. At the appeal, as pointed out above, while the accused- petitioner's conviction under Section 304A IPC, was maintained, the sentence of rigorous imprisonment was reduced to a term of six months. Still dissatisfied, the accused-petitioner has, now, come to this Court with the present revision.
8. While considering the present revision, it needs to be noted that according to the evidence of PW1, who was, admittedly, one of the passengers in the said bus, the occurrence, in question, took place on the PWD road, when the bus was proceeding towards Karimganj from Dhubri via Nilambazar.
9. Describing the occurrence, PW1 has deposed that from Balia Tri-junction, the bus started and, on covering a small distance, the bus, suddenly, fell down on the right side of the road into a pond like place, which was full of water, and he as well as many other passengers sustained injuries and, as a result of the injuries, so sustained, one of the passengers, namely, Mariam Begum, died.
10. In his cross-examination, PW1 clarified that at the time of the accident, the vehicle was not driven at a high speed. Crl. Rev. 542 of 2004 Page 4
11. So far as PW2 is concerned, though he has claimed that he was passenger in the bus, the Investigating Officer (PW8) has confirmed that in his previous statement, recorded by the police, PW2 had not claimed that he was a passenger in the vehicle. Consequently, the evidence, given by PW2, that the vehicle started at high speed and it fell down in a pond like place, can be given no credence at all, particularly, when PW2, despite not being a passenger in the bus, in the light of his previous statement recorded by the police, claimed that he was a passenger. I, therefore, keep the evidence of PW2 excluded from the purview of consideration as unsafe to place reliance upon.
12. According to the evidence of PW3, who was, admittedly, a passenger, I notice that according to his evidence, the vehicle, loaded with passenger, started moving from Balia Tri-junction at great speed and, after covering a small distance of 30-40 Nals (i.e., 30-40 cubits), the vehicle capsized on the right side of the road and many of the passengers, including himself (PW3), suffered injuries and one of the passengers, namely, Mariam Begum, died.
13. In his cross-examination, PW3 has clarified that at the place, where the vehicle capsized, soil had not been dug, though telephone line had been installed by digging the PWD road on which the vehicle was moving. PW3 has denied that because of the fact that soil was soft on the road, the vehicle got capsized. It is also in the evidence of PW3 that had the driver applied brake, the accident could not have taken place and that there was no vehicle either in the front of the said bus or behind the said bus meaning thereby that the road was clear.
14. What transpires from the evidence of PW3 is that the road, which as already indicated above, was a PWD road, there were no other vehicle at the time, when the bus, in question, capsized and Crl. Rev. 542 of 2004 Page 5 though telephone line had been installed by digging soil, the place, where the vehicle capsized, soil had not been dug. The assertion of PW3 that the place, where the vehicle was capsized, soil had not been dug, remained wholly undisputed by the defence.
15. Bearing in mind what is indicated above, when I turn to the evidence of PW4, I notice that according to his evidence, he, too, was a passenger in the said bus, which, having covered a distance of 30-40 Nals (i.e., 30-40 cubits), capsized on the right side of the road by falling into a pond. PW4 has further clarified that after starting the bus, the bus took high speed and, as a result thereof, it capsized.
16. In his cross-examination, PW4 has admitted that the road was a kutcha road, the vehicle was being driven at a medium speed and that the accused used to drive on the said road.
17. Broadly in tune with each other, PW5 and PW6, both of whom were passengers in the said bus, have deposed that the vehicle was started at high speed from Balia Tri-junction and, on covering a small distance of 50-60 Nal (i.e., 50-60 cubits), the vehicle capsized on the right side of the road by falling into a pond.
18. From the cross-examination of these two witnesses, namely, PW6 and PW5, nothing could be elicited by the defence to show that their evidence was false or untrue. In fact, except offering suggestions to these two witnesses, which these witnesses denied, the defence did nothing.
19. What emerges from the above discussion is that while PW1 claims that the vehicle was not driven at a high speed and PW4 states that the vehicle was driven at a medium speed, PW3, PW5 and PW6 have claimed, in tune with each other, that the vehicle was started from Bailia-tri Junction at very high speed. Admittedly, on covering a Crl. Rev. 542 of 2004 Page 6 small distance of about 50-60 Nal (i.e., 50-60 cubits), the vehicle capsized on the right side of the road.
20. When the evidence, adduced by the prosecution, is found to be contradictory or when prosecution adduces evidence reflecting two contradictory versions, the version, which goes in favour of the defence, needs to be adopted. Viewed from this angle, it becomes clear that when the evidence given by PW1 and PW4 are to the effect that the vehicle had not been driven at very high speed, the Court has no option, but to infer that the vehicle was not driven at a high speed. Could, the accused-petitioner, in such circumstances, have been held guilty of the charge framed against him under Section 304A IPC ?
21. My quest, for an answer to the above question, brings me to the judgment of the learned trial Court, wherein the learned trial Court has observed as under:
"In a case of this nature, the vital point is rash or negligent driving. When a person fails to perform duty, which he is obliged to do he could be termed as negligent and if an act is done without having regard to its consequence the act may be held to have been done in a rash manner. While driving a vehicle, a driver is duty bound to have full control over his vehicle and if a vehicle comes off the road or capsized, the driver cannot escape liability unless the situation is proved to be beyond control for some mechanical defect in the vehicle. There was nothing in the evidence to show that there was any mechanical defect in the offender vehicle. In the last line of cross-examination, IO stated that after examining vehicle MVI found defect in the steering system. But a close scrutiny of the record reveals that such statement of the IO was absolutely without any basis. The report of the MVI in respect of examination of the offending vehicle is on record, which does not indicate any such defect. The defence also did not take the plea of the failure of steering system. It was therefore held that there was no mechanical defect in the vehicle Crl. Rev. 542 of 2004 Page 7 at the time of accident. Defence was repeatedly harping on the point that because of the planting of telephone cable line, the road was soft and damaged and because of such condition of the road, the accident took place. But this plea does not appear to be a convincing one. Even if the side of the road was damaged or soft, the accused driver ought to have driven the vehicle with utmost care so as not to be trapped by the aforesaid softness of the road. Being a PWD road, it is the matter of common knowledge that so many vehicles used to ply thereupon every now and then. If the plea of the accused driver had to be believed, then, there ought to have been a series of accidents on and at the nearby spot on a regular basis. But there was no such evidence on record to indicate the aforesaid."
(Emphasis added)
22. It is significant to note that, while dealing with the question of mechanical defect of the steering wheel, which the Investigating Officer spoke of, the appellate Court has, without, however, proving the report, in this regard, observed, "However, I have made a sift of the report of the MVI, which is available in the case record, and found that the following were observed by the MVI after examination. "The aforesaid bus could not be started due to the defect in starting system of the vehicle as well as defective/damaged battery. However, after thorough physical verification, the following damages were ascertained:
- (1) wind shield glasses, two pieces were found broken, (2) window glasses, ten pieces were found broken (3) rear right glass broken (4) left side window glass, one number broken (5) seat, all were found to be affected. Anyway, it was not suggested by the defence side that the accident occurred due to mechanical defect of the offending vehicle."
23. Though it was neither possible for the learned trial Court nor for the appellate Court to look into the report of the Motor Vehicle Crl. Rev. 542 of 2004 Page 8 Inspector, which had not been proved, the fact remains that the evidence, given by PW8, is to the effect that the MVI had found defect in the steering wheel. There is no evidence on record to show that the steering wheel was defective before the accident had taken place. Even the accused-petitioner, as a driver, had never claimed that the steering wheel was defective.
24. Hence, apart from the fact that the record clearly reveals that PW8 was not found truthful, when he claimed that the MVI had found defect in the steering wheel, the accident had not taken place due to any mechanical defect inasmuch as neither the defence offered any such such suggestion to the prosecution witnesses nor did the defence adduce any such evidence in this regard. Even in his examination, recorded under Section 313 Cr.PC., the accused-petitioner did not claim that the accident had taken place due to defect of the steering wheel. Above all, there is nothing on record to show that the steering wheel was already defective before the vehicle capsized or it is because of defect of steering wheel that the accident had taken place. In fact, even the accused-petitioner has not claimed, either while cross- examining prosecution witnesses, or at the time of his examination under Section 313 CrPC, that it was because of the defects in the steering wheel that the bus capsized. To be fair, such a plea could not have been taken by the accused-petitioner inasmuch as had the steering wheel been defective, his driving the vehicle could not have but been regarded as a rash driving and the accused-petitioner, fully conscious of the fact that the steering wheel was defective, drove the said vehicle without bothering of the consequences, which could have followed from his such rash driving.
Crl. Rev. 542 of 2004 Page 9
25. In the light of what have been discussed above, when I revert to the evidence of the Investigating Officer (PW8), whose evidence has been heavily relied upon by Mr. Alam, learned counsel for the accused- petitioner, I notice that this witness has deposed that the southern part of the road was soft, because telephone cable was put up thereunder. The road, as rightly noted by the learned trial Court, was a PWD road, where vehicles used to ply and the evidence of PW3 was that the accused used to ply on the said road. The accused was, therefore, not a person, who was not acquainted with the condition of the road.
26. The defence of the accused, as discernible from his statement recorded under Section 313 Cr.PC., is that it is because of the fact that surface of the road had soft soil he lost control of the vehicle. The learned trial Court has justifiably pointed out that when an act is done without having regard to its consequence, the act shall be treated as a rash act.
27. Thus, when the surface of the road was soft, the accused- petitioner ought to have been cautious and slow in driving the vehicle. There is no evidence that the vehicle was driven slowly. Even the accused-petitioner has not claimed that he was driving the vehicle cautiously and slowly. Notwithstanding the fact that telephone line had been installed by digging the road, the fact remains that the vehicle moved from the left to the right of the road and, then, fell down at a place, where land had not been, admittedly, dug for installing telephone line.
28. There is no explanation offered by the defence nor is there any explanation discernible from the evidence on record as to why the vehicle moved from left to the right of the road and fell down from a Crl. Rev. 542 of 2004 Page 10 place of the road, where land had not been dug. Had the vehicle fallen down from a place, where land had been dug, one could have given benefit of doubt to the accused-petitioner.
29. In the present case, however, when the place, from where the vehicle fell down, was a place, where soil had not been dug, and when there is no claim laid, while cross-examining the witnesses, that the accused-petitioner was driving the vehicle cautiously and slowly and, especially, when there is no explanation offered either by the defence or discernible from the evidence on record to show as to why the vehicle moved from the left of the road to the right of the road, there can be no escape from the conclusion that though the accused was well-aware of the fact that the road was such, which required the vehicle, in question, to be driven slowly and cautiously, he drove the vehicle in a manner, which no reasonable person, placed in the position in which the accused was placed, would have driven resulting into serious loss of human life and property. This apart, there is no evidence on record to show that the vehicle had capsized because of soft soil on the road. Though the accused had not claimed, while he was examined under Section 313 Cr.PC., that the vehicle got capsized, because of the soft soil on the surface no evidence, in support of this plea, exists on the record, either on being adduced by the defence or elicited from the prosecution witnesses. This apart, had the soil on the surface of the road been soft, it was all the more important and necessary for the accused-petitioner to drive the vehicle slowly and cautiously. Further-more, there is nothing in the evidence on record to show as to why the vehicle shivered from left to the right and why the vehicle capsized at a place, where the land, on the road, had not been dug for installing telephone line ? All these queries have Crl. Rev. 542 of 2004 Page 11 remained unanswered by the defence and, in such circumstances, the only inference, which is reasonable and cannot be avoided, is that despite the fact that the soil was soft on the road, the accused- petitioner drove the vehicle rashly and caused injuries to the passengers, one of whom, as indicated above, died.
30. What crystallizes from the above discussion is that the vehicle, in question, capsized, because of the rash driving of the vehicle by the accused-petitioner and, hence, his conviction, under Section 304A IPC, is wholly justified. This Court does not find any infirmity, legal or factual, in the conviction of the accused-petitioner.
31. Coming to the sentence, which has been passed against the accused-petitioner, this Court notices that the sentence is more than reasonable inasmuch as the accused-petitioner has been sentenced to suffer, as already indicated above, rigorous imprisonment for a term of barely six months.
32. Because of what have been discussed and pointed out above, this Court does not find any merit in this revision. This revision, therefore, fails and the same shall accordingly stand dismissed.
33. The accused-petitioner is hereby directed to surrender, forthwith, in the Court of the learned Chief Judicial Magistrate, Karimganj, so as to serve the sentences of imprisonment passed against him.
34. Send back the LCR along with a copy of this judgment and order.
JUDGE Njdutt/rk Crl. Rev. 542 of 2004 Page 12 Crl. Rev. 542 of 2004