Gauhati High Court
Bijoy Kar vs The State Of Assam on 13 October, 2025
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GAHC010184322014
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./48/2014
BIJOY KAR
S/O LT. KHOGENDRA KUMAR KAR R/O GAURANGO POLLI WARD NO. 1
DIST. HAILAKANDI, ASSAM.
VERSUS
THE STATE OF ASSAM
Advocate for the Petitioner : MR.J LASKAR, MS.M DEB,MR.D F A AHMED
Advocate for the Respondent : PP, ASSAM, ,
BEFORE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
ORDER
Date : 13-10-2025
Heard Mr. J. Laskar, learned counsel for the petitioner. Also heard Mr. B. Sarma,
learned Addl. P.P. Assam appearing for the State respondent.
2. The present revision petition is instituted assailing the judgment and order dated
26-11-2013 passed by the learned Sessions Judge, Hailakandi in Crl. Appeal No. 55/2010
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dismissing the same, by affirming the judgment and order dated 11-11-2010 passed by
the learned Chief Judicial Magistrate, Hailakandi in GR. Case No. 369/2004.
3. The prosecution case, in brief, is that Sub-Inspector Sri Ranjit Kumar Bordoloi of
Algapur Police Station had lodged an FIR on 06-07-2004, inter-alia, stating therein that on
29-06-2004 during the evening while he was on patrolling duty at Chiparsangan, one bus
bearing registration No. AS-24/1068 with passengers suddenly came from Chiparsangan
side towards Janaki Bazar tri-junction along the National Highway fell down in the flood
water at Bakrihawar Pt-IV, resulting into death of one passenger, namely, Khirod Mohan
Das Purkayastha and causing grievous and simple injuries to other passengers in the said
bus. The Police, on 06-07-2004, registered the said FIR as Algapur P.S. Case No. 59/2004,
under Section 279/ 337/ 338/ 304(A) IPC. On conclusion of the investigation, the police
laid charge-sheet against the petitioner under Section 279/ 337/ 338/ 304(A) IPC.
The Trial Court framed charges under Section 279/ 337/ 338/ 304(A) IPC against the
petitioner, the same on being read over and explained, the petitioner, herein, had pleaded
not guilty and claimed to be tried, accordingly, a trial ensued.
During the trial, the prosecution had examined 13 witnesses. Thereafter, the
accused was examined under Section 313 Cr.P.C.
On conclusion of the trial, the learned Chief Judicial Magistrate, Hailakandi upon
appreciating the evidences coming on record, was pleased vide judgment and order dated
11-11-2010, to convict the petitioner, herein, under Section 279 IPC and sentenced him to
undergo rigorous imprisonment for 01 (one) month with a fine of Rs. 100 (Rupees One
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Hundred), in default of payment of fine to undergo simple imprisonment for 10 (ten)
days. The petitioner, herein, was further sentenced to undergo rigorous imprisonment for
01 (one) year with a fine of Rs. 1000/- (Rupees One Thousand) under Section 304(A) IPC
and in default of payment of fine to undergo simple imprisonment for 01 (one) more
month.
4. Being aggrieved, the petitioner assailed the judgment dated 11-11-2010 passed by
the Trial Court before the court of the learned Sessions Judge, Hailakandi by instituting
Crl. Appeal No. 55/2010. The Appellate Court upon appreciating the evidences coming on
record was pleased vide judgment dated 26-11-2013 to dispose of the said appeal.
However, the Appellate Court set aside the sentencing of the petitioner under Section 279
IPC. The sentencing of the appellant under Section 304(A) IPC by the learned Trial Court
was upheld.
5. Being aggrieved, the petitioner has instituted the present proceeding.
6. I have heard the learned counsel for the parties and also considered the materials
available on record.
7. The learned Trial Court upon appreciating the evidences coming on record was
pleased vide judgment and order dated 11-11-2010 to draw the following conclusions:-
"18. The identity of the accused stands established. P.W.7 Faruk Ahmed
Laskar who was the passenger of the ill-fated bus clearly and unequivocally stated
that accused Bijoy Kor was driving the said bus and this fact has not been disputed
by the defence. The road was sub-merged with flood water. There was no
identification mark to identify the road under the flood water. The accused drove
the bus carrying passengers on the road sub-merged with flood water, without
identifying the road. The accused did not take sufficient precaution to prevent
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accident while plying vehicle in the midst of flood water. The defence took the plea
that as there was no Prohibition Order from the side of the District Administration,
therefore, the accused drove the said vehicle on the road sub-merged with water
and in result the bus fell into water and was completely sunk. The passengers
somehow escaped except one passenger who was trapped by water in the bus and
died.
19. From the aforesaid evidence it is found that while driving the vehicle the
accused/driver was not taking any precaution to prevent the accident. He drove the
vehicle without identifying the road which was at that time sub-merged with flood
water. It is found from the evidence on record that the accused drove the vehicle
negligently without identifying the road."
8. Basing on the said conclusions, the learned Trial Court proceeded to convict the
petitioner, herein, as follows:-
"23. It is not expedient to deal with the convict/accused person either u/s
360 of Cr.P.C. or under the Probation of Offenders Act as because the traffic
accident has been going on more and more everyday. More people died in accident
than in any other desease. If the accused person (convict) is dealt with under the
said provision of law and release him forthwith, without any punishment, the
impact on the society at a large will be bad. It is the time to control traffic
accident. Hence, the convicted accused shall be dealt with under the provision of
law as per above observation.
24. Heard the convicted accused on the point of sentence which he is
expected to receive. The accused person has stated that recently his father has
expired and he has two daughters, prosecuting their studies, therefore, he does
not intend to undergo with imprisonment.
25. Considering the nature and circumstances of the case and considering
the version of the accused person on sentence which he expects to receive, I take
a lenient view in case of punishment, just to set an example in the society. I
sentence the accused person to undergo with RI of 1(one) month with a fine of Rs.
100/-(Rupees one hundred) u/s 279 IPC and in case of default of payment of fine
he shall undergo with RI of 10(ten) days more. Further, the accused person is
sentenced to undergo with RI of 1(one) year with a fine of Rs.1,000/- (Rupees one
thousand) u/s 304(A) IPC and in case of default of payment of fine he shall
undergo with SI of 1(one) month more. The period of detention which he has
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already undergone during investigation and trial stage, be set off against the
period of sentence."
9. Being aggrieved, the petitioner, herein, has instituted Crl. Appeal No. 55/2010
before the Court of learned Sessions Judge, Hailakandi. The learned Sessions Judge,
Hailakandi, upon appreciating the evidences coming on record, vide judgment and order
dated 26-11-2013 was pleased to draw the following conclusions:-
"21. The driver of the offending Bus drove the vehicle with full of passengers
through the submerged road; where there was no identification stick on both sides.
Although Defence has taken the plea that as the road was submerged by flood
water, the District Administration ought to have closed the road or to fix
identification stick on both sides of the road, but for not taking the said measures
by the District Administration, the driver/accused should not take risk to cross the
submerged road on his own way by driving the Bus; full of passengers. Index A in
Ext. 1 indicates the place of occurrence and Index C indicates the National
Highway No. 154 and Index D and E indicate the paddy field on both sides of the
road. The sketch map reveals that the vehicle completely left the road and went
towards the extreme side of the road and fell down in to the water and got sunk.
The accused/driver did not take any pre caution and drove the vehicle negligently
without identifying the road, which was under water.
22. On scrutiny of the materials on record, it is found that at the time of
incident, accused drove the involved vehicle and the place of occurrence was
submerged. That being so, the driver ought to have proceeded through the
submerged National Highway without properly identifying the road, that too with
full of passengers more. The degree of care required in a particular case depends
on the surrounding circumstances
23. Sec. 279 is attracted if the manner of driving is so rash or negligent as to
endanger human life. To constitute an offence under Sec. 279/304(A) or 337/338,
proof of criminal rashness or negligence is essential, which is found in the present
case in view of the materials on record. A person driving a vehicle is under a duty
to control the vehicle and he is prima facie guilty of negligence if the vehicle leaves
the road and got capsized on the extreme side of the road side ditch and got sunk.
Criminal negligence is the gross and culpable neglect or failure to exercise that
reasonable and proper care and pre caution, which is essential to guard against
injury either to the public generally or to an individual in particular. It is for the
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driver to explain the circumstances under which the vehicle comes to leave the
road and got capsized in the road side ditch.
24. In the instant case, the defence plea is of simply denial and when he
was asked as to whether he has anything else to state or to adduce any evidence,
he denied to adduced evidence and stated that he was pressurized by the
passengers to ply the vehicle on the submerged road and it was getting dark and
as such after proceeding a short distance, the vehicle got capsized but the said
explanation of the driver is not satisfactory and acceptable.
25. The Ld. TM. relying on a decision reported in AIR 2007 SC 2376 has
observed that rashness consists in hazarding a dangerous or wanton act with the
knowledge that it is so, and it may cause injury.......... The criminality lies in such a
case in running the risk of doing such act with recklessness or indifference as to
the consequence. Criminal negligence is the gross and culpable neglect or failure to
exercise the reasonable and proper care and pre caution to guard against the
injuries."
10. Basing on the said conclusions drawn, the learned Appellate Court proceeded to
dismiss the appeal, in the following manner:-
"26. In view of the aforesaid discussion and observation, it is found and held
that the Ld. Trial Magistrate has not committed any error or illegality in convicting
the accused/appellant relying on the materials on record. The sentence under Sec.
279 is lesser than the punishment under Sec. 304(A) and hence sentencing him
under Sec. 304(A) of the IPC., which is higher than other offence, would be legal
and proper. Regarding sentence, accused/appellant was heard on the quantum of
sentence and the Ld. TM. assigning reasons rightly declined to extend the benefit
of Sec. 360 of CrPC. or under Sec. 3/4 of the Probation of Offenders Act. Under the
facts and circumstances of the case, the sentence imposed by the Ld. TM. for
offence under Sec. 304(A), IPC. can not be said to be harsh. The sentence
recorded under Sec. 279, IPC. is set aside."
11. This Court has carefully perused the conclusions drawn by the learned Trial Court
vide judgment dated 11-11-2010 in the light of the evidences coming on record. On such
consideration, this Court finds that the conclusions drawn by the learned Trial Court have
been so drawn basing on a due and proper appreciation of the evidences coming on
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record and no infirmity, therein, is found. Accordingly, the conviction of the appellant
under Section 279/ 304(A) IPC by the learned Trial Court would not mandate any
interference. Having drawn the said conclusion, this Court has carefully perused the
conclusions drawn by the learned Appellate Court vide judgment and order dated 26-11-
2013. On a close perusal of the conclusions drawn by the learned Appellate Court, this
Court finds that the same to have been so drawn basing on due and proper appreciation
of the evidences coming on record and no infirmity is found to exist therein. This Court,
accordingly, is of the considered view that the judgment and order dated 26-11-2013
would not mandate any interference. Having drawn the above conclusion, this Court finds
that the appellant, herein, was sentenced under Section 304(A) IPC.
12. Provisions of Section 304(A) IPC being relevant, the same is extracted, here-in-
below for ready reference:-
304A. Causing death by negligence.-Whoever causes the death of any
person by doing any rash or negligent act not amounting to culpable homicide,
shall be punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both.
A perusal of the provision of Section 304(A) IPC would bring to the forefront that the
same mandates a punishment of imprisonment of either description for a term which may
extend to two years, or with fine, or with both.
13. Considering the lapse of time occasioning in the matter since the commission of
the offence by the petitioner, herein, and also considering the fact that the petitioner, at
present is aged around 56 years, this Court is of the considered view that the sentencing
of the petitioner, herein, as awarded by the learned Trial Court would mandate a
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modification. Accordingly, while maintaining the conviction of the appellant, herein, under
Section 279/ 304(A) IPC, the sentencing of the appellant is limited to the period of
imprisonment already undergone by the petitioner, herein. Accordingly, the sentencing of
the petitioner is modified by limiting to the same to the period of imprisonment already
undergone by the appellant, herein.
14. With the above observations and directions, the present revision petition stands
disposed of.
15. Registry to send back the TCR to the Trial Court along with a copy of this order for
information and necessary action.
JUDGE
Comparing Assistant
