Page No.# 1/6 vs The State Of Assam
2025 Latest Caselaw 336 Gua

Gauhati High Court

Page No.# 1/6 vs The State Of Assam on 8 May, 2025

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

                                                                       Page No.# 1/6

GAHC010233532013




                                                                 2025:GAU-AS:5641

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Crl.Rev.P./64/2013

            DIBAKAR DUTTA
            S/O LT. MAHESWAR DUTTA R/O VILL- PURANI KAMARGAON, P.O.
            KAMARGAON, DIST. GOLAGHAT, ASSAM,



            VERSUS

            THE STATE OF ASSAM




Advocate for the Petitioner   : MS.P BHATTACHARJEE, MS.J BORA,MR.T J MAHANTA,MR.A
BHATTACHARYA

Advocate for the Respondent : , PP, ASSAM,,

:: PRESENT ::

HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

For the Petitioner : Mr. T.J. Mahanta, Senior Advocate assisted by Mrs. P. Bhattacharjee, Advocate.

           For the Respondent:         Mr. B. Sarma,
                                   Addl. P.P., Assam.
                                                                             Page No.# 2/6

           Date of Hearing :         05.05.2025.
            Date of Judgment :         08.05.2025.


                           JUDGMENT AND ORDER (CAV)

Heard Mr. T.J. Mahanta, the learned senior counsel assisted by Mrs. P. Bhattacharjee, the learned counsel appearing for the petitioner. Also heard Mr. B. Sarma, the learned Addl. Public Prosecutor, Assam.

2. This is an application under Section 401 read with Section 397 of the Criminal Procedure Code challenging the judgment and order dated 05.12.2008 passed by the learned learned Addl. Chief Judicial Magistrate, Golaghat in G.R. Case No.1046/2007 affirmed by the learned Sessions Judge, Golaghat in Criminal Appeal No.01/2009.

3. On 04.10.2007, the four year old girl Nandini Gogoi was crossing the National High Way No.37, a car bearing Registration No.AS-03G-0115 (TATA Indica) driven by the present petitioner, was coming from the direction of Bongaon and going towards Dergaon, had hit the girl on the middle of the National Highway. The baby girl sustained serious injury. She had to be taken to Dibrugarh Medical College & Hospital. But unfortunately, on 05.10.2007, the baby had succumbed to her injuries.

4. Police registered the case being Dergaon P.S. Case No.250/2007 under Sections 279/304-A of the Indian Penal Code. Ultimately, on conclusion of investigation, police filed the charge sheet against the present petitioner under Section 279 and 304-A of the Indian Penal Code.

5. The trial court convicted the petitioner under both the sections of law. The petitioner was sentenced to undergo rigorous imprisonment for 6 months and was directed to pay a fine of ₹500/- for each of the said offences.

6. The petitioner preferred an appeal. The appellate court affirmed the judgment of the trial court.

7. Though a revisional court normally does not go through the evidence. But in this Page No.# 3/6

case, this Court had to go through the evidence as the petitioner has claimed that there is no evidence in this case to prove that the petitioner was driving the vehicle in a rash and negligent manner. According to the learned senior counsel Mr. Mahanta, there is evidence in this case to prove that the vehicle was driven in an average of speed of 60/70 km. per hour and in a National Highway this speed is less than normal speed of other vehicles. According to Mr. Mahanta, a four year old minor girl without being escorted by anybody crossing a National Highway is a dangerous proposition of fact. Mr. Mahanta has submitted that the vehicle was not driven in a rash and negligent manner.

8. In support of his submissions, Mr. Mahanta has relied upon a decision of the Supreme Court that was delivered in State of Karnataka v. Satish, (1998) 8 SCC 493 . The factual matrix of this case is like this- Truck No. MYE-3236 being driven by the respondent turned turtle while crossing a "nalla" on 25-11-1982 at about 8.30 a.m. The accident resulted in the death of 15 persons and receipt of injuries by about 18 persons, who were travelling in the fully loaded truck. The respondent was charge- sheeted and tried. The learned trial court held that the respondent drove the vehicle at a high speed and it was on that account that the accident took place. The respondent was convicted for offences under Sections 279, 337, 338 and 304-A IPC and sentenced to various terms of imprisonment. The respondent challenged his conviction and sentence before the Second Additional Sessions Judge, Belgaum. While the conviction and sentence imposed upon the respondent for the offence under Section 279 IPC was set aside, the appellate court confirmed the conviction and sentenced the respondent for offences under Sections 304-A, 337 and 338 IPC. On a criminal revision petition being filed by the respondent before the High Court of Karnataka, the conviction and sentence of the respondent for all the offences were set aside and the respondent was acquitted.

9. Paragraph 4 of the said judgment is quoted as under:

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"4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case.

In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case."

10. I have considered the submissions made by the learned counsel of both sides.

11. The first prosecution witness in this case is Smti. Manju Gogoi. She is the mother of the unfortunate baby. She has claimed that at the time of occurrence, her daughter was following her while she was crossing the National Highway. She has further stated that after the accident, the vehicle stopped there.

12. The second prosecution witness is Ramesh Ghatowar. He claimed that at the relevant time of occurrence he was at home and after hearing about the accident, he came out.

13. The third prosecution witness is Kumar Gogoi. At the relevant time of occurrence he was present by the side of the road where the accident took place. At that time, the Indica Car came and hit the girl while she was crossing the road.

14. In his cross-examination, he has stated that the vehicle was driven probably at a speed of about 50 km per hour.

15. The fourth prosecution witness is Tarachand Karmakar. In his evidence, he has stated that he had witnessed that the Indica Car was driven by the petitioner hitting Page No.# 5/6

the baby girl on the road.

16. In his cross-examination, this witness has stated that the vehicle had hit the girl from behind.

17. The fifth prosecution witness is Abdul Zalil. He is the Investigating Officer in this case and spoke about investigation.

18. I have carefully gone through the prosecution evidence.

19. Negligence means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by a similar considerations would not do (see. AIR 2012 SC 2986). In this case, there is no evidence to suggest that the petitioner was driving the vehicle in a rash and negligent manner.

20. Driving a vehicle in a National Highway at a high speed itself does not bespeak of negligence or rashness. In the case in hand, none of the witnesses examined by prosecution have claimed that the vehicle was driven in a high speed and in a rash and negligent manner. The witnesses examined in this case, have stated that the vehicle was probably driven at a speed of about 50 km per hour.

21. In such a case, no presumption of rash and negligence driving can be drawn up by invoking the maxim "rash ipsa loquitor". In a criminal case, the offence against an accused must be proved beyond all reasonable doubt. Conjecture and surmises have no place in a criminal trial.

22. The learned trial court has erroneously appreciated the evidence and arrived at an incorrect finding. The learned appellate court also erroneously oriented itself and affirmed the judgment of the trial court. The offences against the present petitioner are not proved beyond all reasonable doubt.

23. Therefore, the revision petition is allowed. The judgment and order dated Page No.# 6/6

05.12.2008 passed by the learned learned Addl. Chief Judicial Magistrate, Golaghat in G.R. Case No.1046/2007 affirmed by the learned Sessions Judge, Golaghat in Criminal Appeal No.01/2009, is set aside.

24. The petitioner Dibakar Dutta is found not guilty and acquitted from this case.

Send back the LCR.

JUDGE

Comparing Assistant