Sri Suman Das vs The State Of Tripura
2021 Latest Caselaw 1264 Tri

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                     HIGH COURT OF TRIPURA
                           AGARTALA
                        CRL. A. 40 of 2019
 Sri Suman Das,
 son of late Surjya Kanta Das, resident of Rajnagar,
 Ashrampara, P.S. P.R. Bari, District- South Tripura
                                               ----Appellant(s)
             Versus
 1.      The State of Tripura
 2.   Sri Basudeb Das
 son of late Dhananjoy Das, resident of Rajnagar,
 Ashrampara, P.S. P.R. Bari, District- South Tripura
                                                         ----Respondent(s)

 For Appellant(s)                     :     Mr. BN Majumder, Sr. Advocate
                                            Mr. DJ Saha, Advocate
 For Respondent(s)                    :     Mr. S. Ghosh, Addl. PP
                                            Mr. RG. Chakraborty, Advocate
 Date of hearing and delivery of
 Judgment & Order                     :     16.12.2021
 Whether fit for reporting            :     Yes / No

                          BEFORE
              HON'BLE MR. JUSTICE ARINDAM LODH
                  Judgment & Order (ORAL)
16.12.2021

Heard Mr. BN Majumder, learned senior counsel assisted by Mr. DJ Saha, learned counsel appearing for the defacto-complainant i.e. the appellant herein. Also heard Mr. S. Ghosh, learned Additional PP appearing for the respondent-State and Mr. RG Chakraborty, learned counsel appearing for the respondents no. 2.

2. This appeal is directed against the judgment and order of acquittal dated 29.04.2019 passed by the learned Assistant Sessions Judge, South Tripura, Belonia, in case No. S.T. (Type-II) 07 of 2018. The appeal has been filed by the defacto-complainant, Sri Suman Das, son of deceased Surjya Page 2

Kanta Das, who met a road traffic accident on 17.02.2017 afternoon at about 1.45 p.m. and succumbed to his injuries lateron.

3. According to the prosecution case, the father of the complainant was going to Rajnagar market with his bicycle through Barpathari-Rajnagar road. At that time, the offending vehicle bearing registration no. TR-03-2555 (commander jeep) was proceeding towards Barpathari from Rajnagar being driven rashly and negligently in high speed had dashed the father of the complainant at Hospital Chowmuhani, Rajnagar, as a result of which, the father of the complainant sustained grievous injuries. Soon after the accident, the father of the complainant was shifted to Rajnagar PHC wherefrom he was referred to GBP hospital, Agartala. From GBP hospital the father of the complainant was referred to Kolkata AMRI hospital for better treatment where he succumbed to his injuries on 19.02.2017.

4. After registering the complaint as a specific case under FIR No. 2017/PRB/010, dated 18.02.2017, investigation was carried out. During investigation, the investigating officer had recorded the statements of the available witnesses under Section 161 Cr.P.C. and also seized some documents and the offending vehicle. Thereafter, the investigating officer has submitted charge-sheet against the respondent no. 2, Basudeb Das. Being committed, the learned Judge has taken cognizance of the police report and at the commencement of trial, charges were framed against the respondent no. 2 under Sections 279/304 Part II of IPC and under clause (c) of sub-section (1) of Section 132 or section 133 or section 137 of the Motor Vehicles Act.

5. The respondent no. 2 pleaded that he was not guilty of committing offence, he was charged with. In support of the prosecution case, altogether 19 witnesses had adduced evidence and some documents were introduced. On conclusion of recording evidences, the respondent no. 2 was examined under Section 313 Cr.P.C. to which he denied all the imputations against him, as Page 3

surfaced from the prosecution evidences, and ultimately, pleaded his innocence.

6. Having heard arguments of learned counsel appearing for the parties and on consideration of the evidences and materials on record, the learned Judge had acquitted the respondent no.2 from the charges levelled against him. Being aggrieved by and dis-satisfied with the order of acquittal, as aforestated, the defacto-complainant, Suman Das, has preferred the instant appeal before this court.

7. To support the appeal, Mr. BN Majumder, learned senior counsel appearing on behalf of the defecto-complainant submits that from the evidences of PW-4, PW-10, PW-11 and PW-19, it is established that at the relevant point of time it was the respondent no. 2 who was driving the vehicle most rashly and negligently, as a result of which, he dashed the deceased Surjya Kanta Das, who succumbed to his injuries lateron.

8. On the other hand, Mr. RG Chakraborty, learned counsel appearing for the respondent no. 2 has submitted that the prosecution has miserably failed to establish the case that at the relevant point of time, the vehicle was driven by respondent no. 2 and the driver was driving the vehicle rashly and negligently.

9. On the basis of the aforesaid submission, I have scrutinized the evidences on record, particularly, the evidences of PW-4, PW-10, PW-11 and PW-19.

9.1. PW-4, is the complainant, Sri Suman Das. He deposed that he heard the incident of accident from his brother, Litan Das. He first went to Rajnagar PHC wherefrom his father was referred to GBP hospital, Agartala wherefrom as per advise of doctors, his father was referred to Kolkata. He further deposed that he after visiting the place of occurrence came to know Page 4

from the nearby shopkeepers, namely, Dulal Sarkar and Raju Debnath that the alleged vehicle was plying in the wrong side and dashed his father. He identified Basudeb Das, respondent no. 2 herein. When his attention was drawn to his statement that he heard the matter of accident from his brother Litan Das, the same was found to be absent in his previous statement recorded under Section 161 Cr.P.C. Furthermore, the evidence of PW-4 in regard to the fact that he heard from Dulal Sarkar and Raju Debnath that the alleged vehicle had dashed his father was also not found in his previous statement recorded under Section 161 Cr.P.C.

9.2. PW-10, Biplab Debnath, deposed that while he was riding his bike on 17.02.2017 at around 1.30 to 2.00 pm at noon, he stopped his bike and saw that the alleged commander vehicle in an excessive speed overtook one vehicle stationed on the road and dashed Surjya Kanta Das who was riding a bicycle. In cross-examination, it is found that he did not make this statement in his previous statement recorded under Section 161 Cr.P.C. that on the alleged date and time and place of the accident while he was going from Barpathari to Rajnagar when he reached at Prakashnagar near Rajnagar PHC he saw the alleged commander jeep was being driven in excessive speed.

9.3. PW-11, Dulal Sarkar has stated that he saw a commander jeep being driven by Basudeb Das had dashed the deceased.

9.4. PW-19, Smt. Dipali Das, owner of the vehicle could not say in her deposition as to who was driving the vehicle on that fateful date.

10. On careful scrutiny of the above evidences, it comes to fore that PW-4 is a hearsay witness. He heard about the incident from Dulal Sarkar (PW-11) and Raju Debnath. PW-11 in his deposition did not say that the vehicle was being driven by respondent no. 2 in an excessive speed or rashly or negligently. PW-10, though, in his chief-examination stated that the vehicle was driven by the driver of the vehicle in excessive speed, but, this statement Page 5

is found to be an improved version because he did not make this statement before the investigating officer at the time of his examination under Section 161 Cr.P.C. PW-19, did not say regarding complicity of respondent no. 2 when he deposed that at the relevant point of time the respondent no. 2 was driving the vehicle. This witness was not declared hostile. The defence has declined cross-examination.

11. I have perused the judgment of acquittal passed by the learned Assistant Sessions Judge. It is observed that the learned Judge has acquitted respondent no. 2 on the ground that the prosecution has failed to establish the fact that the vehicle was being driven by respondent no. 2 rashly and negligently or in an excessive speed. The learned Judge also has noticed that the prosecution witnesses during their chief-examination have improved their versions.

12. After perusal of the evidences, narrated here-in-above by this court, it is surfaced that the main ingredient to attract the penal offence under Section 304 Part II and other provisos on the basis of the charge have not been proved beyond reasonable doubt.

13. In view of this, I find no substance in the instant appeal. Accordingly, the appeal stands dismissed. I find no reason to interfere with the findings returned by the learned Assistant Sessions Judge while acquitting the respondent no. 2. The judgment of acquittal thus stands affirmed and upheld.

Send down the LCRs.

JUDGE

Saikat