S. Talapatra
1. Heard Mr. A. Pal, learned counsel, appearing for the revision petitioner as well as Mr. A. Ghosh, learned Additional P.P., representing the State.
2. At the very outset, Mr. Pal, learned counsel for the revision petitioner submits that both the judgment and order passed by the learned Trial Court as well as by the learned Appellate Court suffer from perversity as findings cannot get any support from the evidence.
3. The prosecution case as it emerges from the record is that on 07.11.2008 at around 1100 hours, one, Smt. Tuntun Chakraborty, wife of the informant was waiting with her son namely, Sourav Chakraborty at the road side on Sachindranagar Mandai road for boarding the vehicle to go to Jirania Ramthakur Ashram along with some other passengers. At that time, a TATA Magic vehicle came and it was kept in stationery condition for facilitating the passengers to board in. During that time, another Cruiser vehicle No. TR-01-B-3883 came with high speed and dashed Sourav, who received fatal injuries on his person and ultimately, succumbed to death. On the basis of that information, Jirania P.S. Case No. 73/2008 u/s 279/304A of IPC was registered and on completion of the investigation, the charge sheet was filed on finding prima facie materials against the revision petitioner.
4. Learned Chief Judicial Magistrate, West Tripura, Agartala took cognizance of the offence u/s 279/304A of IPC framed the charge against the petitioner to which he pleaded not guilty and claimed to be tried.
5. During trial, as many as 8 witnesses were examined and four documents/material were brought on evidence.
6. The case was then transferred to the Court of learned Judicial Magistrate, 1st Class, Court No. 4, West Tripura for trial.
7. Having found on purported appreciation of the evidence that the prosecution succeeded driving home the charge, the learned Magistrate returned finding of conviction under both the Sections i.e. u/s 279 and 304A of the IPC.
8. Awakened by the judgment reported in (2000) 5 SCC 2, a deterrent sentence was considered by the learned Magistrate. The petitioner was sentenced to suffer a rigorous imprisonment of 6 months u/s 279 IPC and rigorous imprisonment for 2 years u/s 304A of IPC.
9. Being aggrieved by the said judgment and order, the revision petitioner preferred appeal u/s 374 of the Cr.P.C. in the Court of the learned Sessions Judge, West Tripura, Agartala being Criminal Appeal No. 04(1)/2011 which later on was transferred to the Court of the learned Additional Sessions Judge, Court No. 3, West Tripura, Agartala.
10. Learned Additional Sessions judge even though confirmed the finding of the learned Trial Judge, but, interfered with the sentence holding that the sentence as has been given u/s 304A IPC, takes away the requirement to give further sentence u/s 279 of the IPC. But the sentence as imposed by the learned Trial Court u/s 304A IPC was upheld by the appellate Court by the judgment and order dated 16.08.2011. As such the challenge is against the judgment and order dated 16.08.2011 as passed in Criminal Appeal 04 (01)/2011.
11. Mr. A. Pal, learned counsel, appearing for the petitioner attached much emphasis on three grounds calling for interference. (1) The place of occurrence was not corroborated rather the same got indicated divergently by the prosecution witnesses to variety of places. The Courts below did not consider that aspect of the matter while returning a judgment of conviction (2). It was stressed much on the situation that when the offending vehicle was going to overtake stationery vehicle, it is hardly believable that there can be any high speed driving on that material point of time and (3) there was no examination of the alleged offending vehicle by any expert such as the Motor Vehicle Inspector whether that accident occurred due to any mechanical disorder. As such the finding of conviction suffers from perversity and the principles of justices call for a reversal finding.
12. Mr. A. Ghosh, learned Additional P.P. however, submits that the prosecution has quite successfully established that the accident took place for the offending vehicle and the death of the victim boy is entirely attributable to rash and negligent driving of the cruiser vehicle.
13. This Court was taken to the depositions of the witnesses material for decision such as P.W. 1, P.W. 7 and P.W. 8.
14. P.W. 7 is the mother of the victim namely, Smt. Tuntun Chakraborty, who stated that while she was holding her son by her hand, at that time, a vehicle which was going with high speed from Mandai side with zig zag manner and without blowing any horn dashed his son. As a result, he sustained grievous injury and he was taken to Jirania hospital and there, he was declared dead. When confronted in the cross-examination, she stated in the Court that "The vehicle in which I was about to board and the offending vehicle was on the same direction. The vehicle in which I was about to board was standing by the side of the road. All the passengers who were about to board on the vehicle were standing together." She however, stated "All of us did not see the cruiser vehicle which come from the back side."
15. From her statement, it appears that she was about to board the TATA Magic vehicle along with other persons, who were also gathered there to board the vehicle and she did not see that vehicle indicating thereby that she was standing on the left side of the stationery vehicle. But, her said version has been destroyed by the deposition of P.W. 8 namely, Dulal Debnath, who was the driver of the stationery vehicle, who stated that "when Sourav and his mother were about to board on my vehicle then suddenly, the offending vehicle which was coming from Mandai side with high speed dashed the Sourav. I then raised my voice so that the offending vehicle could stop but the said vehicle fled away." But, on the cross, he disclosed that "The offending vehicle was coming from the right side of my vehicle and at that time Sourav and his mother were about to board on my vehicle from the back side." From his version, it appears that the P.W. 7 was standing on the back side of his vehicle. Thus the place of occurrence as stated by P.W. 7 has not been corroborated by P.W. 8. Again P.W. 1 gave a different version, who was also standing nearby the place of the accident.
16. Smt. Sikha Roy, P.W. 1 stated that "When we were looking for vacant seats in that vehicle then suddenly a cruiser vehicle which was coming from the Mandai side overtook our vehicle and we heard a loud sound. I was present on one side of the vehicle and the victim boy and his mother were standing on another side of the vehicle. After the accident I found the victim was lying on the road in up side down condition. When the child was taken up I found him that he stared above once and after that he was shifted to Jirania Hospital with the vehicle which was about to go." In the cross, she had categorically stated that "The victim boy and his mother were standing on the right side of the vehicle and we were standing of the left side of the vehicle and I have not seen how exactly the accident took place. The offending cruiser vehicle firstly halted at the PO and then it tried to over take. The road at the PO is in breadth so much that two cruiser vehicles can move adjacently to each other at one point of time." She further elaborated, "If any other vehicle comes from the opposite side then it has to stop and wait for both the vehicles to move."
17. From her version, it emerges beyond any doubt that the place of occurrence was on the right side of the road, not on the left side of the road in consideration of the direction both the vehicles were moving on or standing in the stationery condition.
18. In view of this, it is really difficult to presume that how and where the accident actually occurred, but, the three versions as stated herein are destroying each other. In the evidence, it has been established that the boy was hit by the cruiser vehicle at the relevant point of time. Only the P.W. 8, for the first time identified the revision petitioner in the dock during trial. Such identification can not be acceptable as appropriate identification of the accused person. No doubt, for high speed driving of the vehicle, the accidents have been occurring in the large scale and precious lives are beholden at their mercy. But, when the Court is not armed with sufficient evidence to infer the charge established beyond reasonable doubt, a finding of conviction is returned, it would undoubtedly cause miscarriage of justice. I find there is serious lack in corroboration intra the prosecution evidence. The identity of the driver has not been legally established.
19. In view of that, this Court considers it apposite to interfere with the finding of conviction as affirmed by the learned Appellate Court and to give benefit of doubt in favour of the petitioner.
20. Accordingly, judgment and order dated 16.08.2011 as passed in Criminal Appeal No. 04(1) of 2011 affirming the conviction and sentence dated 18.12.2010 as passed by the learned Judicial Magistrate, 1st Class, West Tripura in G.R. 931 of 2008 is set aside and the petitioner is acquitted from the charge on benefit of doubt.
21. The criminal revision petition is therefore allowed and disposed of.
22. The surety, if any is discharged from the liability.
23. Send down the Lower Court records.
