Tripura High Court

High Court Of Tripura vs The State Of Tripura on 17 February, 2021

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                          HIGH COURT OF TRIPURA
                                AGARTALA
                            Crl. Rev. P No.56/2018
Sri Sankar Debnath,
Son of Late Dhirendra Debnath.
Resident of Tepania, Udaipur,
PO : Radhakishorepur - 799001,
District: Gomati, Tripura.

                                                      ............ Petitioner(s).

                                      Versus
The State of Tripura,
(To be represented by the Learned Public Prosecutor,
The High Court of Tripura).

                                                    ............... Respondent(s).

BEFORE THE HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY

For Petitioner(s) : Mr. D. K. Daschoudhury, Adv. For Respondent(s) : Mr. S. Ghosh, Addl. P. P.

       Date of hearing                  :   22nd January, 2021.

       Date of Judgment & Order         :   17th February, 2021.

       Whether fit for reporting        :   NO.


                            JUDGMENT AND ORDER

[1]            Having been convicted and sentenced for commission of

offence punishable under Sections 279 and 304A of the Indian Penal Code

(IPC, in short), convict petitioner Sankar Debnath has challenged

appellate court's judgment dated 07.08.2018 which has been delivered by

the Additional Sessions Judge of Gomati Judicial District in Criminal

Appeal No.38(3) of 2017 affirming his conviction and sentence of

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imprisonment for six months under Section 279 IPC as well as the

conviction and sentence of one year under Section 304A IPC.

[2] Petitioner has assailed the impugned judgment of the

appellate Court on several grounds which can be summarised as follows:

(i) The involvement of the offending vehicle in the alleged

accident has not been established.

(ii) There is no eye witness who have seen the accident.

(iii) Some of the witnesses improved their version in Court

during trial which they never stated to the Investigating

Officer in their police statement recorded under Section 161

Cr. P.C.

(iv) The learned trial Court did not follow the principle of

"presumption of innocence" during the trial of the case.

(v) Guilt of the petitioner has not been proved beyond

reasonable shadow of doubt.

[3] Appearing for the petitioner Mr. D. K. Das Choudhury, learned

counsel has referred to the facts of the case and also taken the Court to

the evidence led by the prosecution and pointed out to various

contradiction and infirmities appearing in the evidence of the prosecution

witnesses to establish his contention with regard to the innocence of the

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petitioner and the frailty of the judgment of the trial Court as well as of

the appellate Court.

[4] Mr. Ghosh, learned Additional Public Prosecutor has opposed

the contentions of the petitioner and buttressed the judgments of the

courts below by arguing that prosecution has led the evidence of as many

as 13 witnesses including the Medical Officer, some of the passengers of

the offending vehicle and the Investigating Officer who have given

consistent, corroborative, coherent and trustworthy evidence in support

of the prosecution case and the courts below have delivered their

judgments on the basis of a detailed and in-depth examination of such

evidence and, therefore, their judgments do not call for any interference

in revision.

[5] A brief resume of the facts is necessary to examine the merits

of the challenge against the impugned judgment which is as under:

38 years old Anukul Majumder of Udaipur died in a road

traffic accident on 25.06.2010. His son Susanta Majumder reported the

matter to police on 27.06.2020 by lodging a written FIR at R.K. Pur police

station alleging, inter alia, that when his father was waiting for a vehicle

at about 2 pm on 25.06.2010 near the road in front of Dhajanagar police

line for going to Atharovola, the offending commander Jeep carrying

registration No.TR-03-2258 on its way to Agartala from Udaipur smashed

his father. The vehicle was so rash and negligent that when it dashed

against his father, he was flung away. The injured was immediately

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taken to the nearby Tripura Sundari district hospital from where he was

referred to AGMC & G.B.P. Hospital at Agartala where he succumbed to

his injuries on the same day at about 11.30 pm. The informant son of the

deceased alleged that the accident occurred due to the rash and negligent

driving of the petitioner in which his father lost his life.

[6] Based on his FIR, R.K.Pur P.S Case No.210/2010 under

Sections 279 and 304A IPC was registered and investigation was taken

up. Sri Badal Mallik, Sub-Inspector of police of the said police station

conducted the whole investigation of the case.

[7] At the commencement of his investigation, he visited the

crime scene and drew up hands sketch map (Exbt.2) of the crime scene

with a separate index (Exbt.2/1) indicating the material locations.

Thereafter he examined local shopkeepers and residents of the vicinity

and recorded their police statements under Section 161 Cr. P.C. By that

time the inquest of the body was done at G.B.P hospital, Agartala and

inquest report (Exbt.6) was prepared by one Arun Debbarma, Assistant

Sub-Inspector of police of G.B police out post and the autopsy was also

done in the department of forensic medicine and toxicology of Agartala

Government Medical College and G.B.P Hospital. The inquest report

(Exbt.6) demonstrated accidental injuries and the autopsy report (Exbt.8)

confirmed that the deceased died in coma due to head injury and the post

mortem findings were consistent with road traffic accident. The

Investigating Officer procured those reports and seized the offending

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vehicle along with its documents by a seizure list dated 30.06.2010

(Exbt.3) and ascertained that Smt. Hasina Begam of Udaipur was the

owner of the offending vehicle. To ascertain as to whether the vehicle was

in road worthy condition at the time of accident the Investigating Officer

got it examined by a Motor Vehicles Inspector (PW-5) who opined that

there was no mechanical disorder in the vehicle at the time of occurrence.

His investigation revealed that the accused driver was responsible for the

accident. As a result, he submitted charge sheet No. 230/2010 dated

31.07.2010 against him for having committed offence punishable under

Sections 279 and 304A IPC.

[8] The learned Chief Judicial Magistrate received the charge

sheet and took cognizance of offence punishable under Sections 279 and

304A IPC and thereafter he made over the case to the trial Court. The

case was then put to trial. At the commencement of trial, the substance

of accusation was stated to the accused in terms of Section 251 Cr. P.C.

He pleaded not guilty and claimed a trial.

[9] As many as 13 prosecution witnesses were examined on

behalf of the prosecution in the course of trial and 8 documents (Exbt.1

to Exbt.8) were relied upon to establish the charge against the petitioner.

After the prosecution closed adducing evidence, the trial Court examined

the accused under Section 313 Cr. P.C to record his plea on the

incriminating materials which appeared against him from the evidence

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during trial. Accused pleaded innocence and claimed that he was not at all

involved in the accident and a false charge sheet was filed against him.

[10] Among the witnesses examined in this case PW-1, Parimal

Debnath who owned a shop within the vicinity of the place of occurrence

rushed to the place of occurrence following a hue and cry where he had

seen the victim lying on road with bleeding injury in his head. His

evidence does not support the prosecution charge of rash and negligent

driving against the accused.

[11] Similarly, the evidence of PW-2 does not also support the

prosecution case with regard to the charge of rash and negligent driving

against the petitioner. The PW had only seen the injured lying on road

and he made arrangements for shifting him to hospital.

[12] PW-3, Jaharlal Das was a Constable of police at R. K. Pur

police station. His evidence is significant because he was on traffic duty at

the material time at the place of occurrence. In his statement before the

Court he has asserted that a TATA Magic vehicle on its way from Agartala

to Udaipur halted at the tri-junction at the place of occurrence and the

deceased got down the vehicle. At that moment the offending vehicle on

its way from Udaipur to Agartala dashed against the deceased on the

wrong side of the road and fled from the place of occurrence. The local

people then came forward and shifted the injured to hospital. According

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to the PW the offending vehicle was in high speed at the time of

occurrence.

[13] PW-4, Nidhuram Ghosh another police Constable gave similar

evidence. He was also on traffic duty at the material time at the place of

occurrence. A big sound turned his attention to the accident that took

place nearby. Immediately, he along with PW-3 rushed to the spot and

found the deceased lying with bleeding injury on his head. He stated in

his evidence that the offending vehicle was in high speed and after he

signalled the vehicle to pass he heard the sound and saw that the

accident took place. The offending vehicle immediately fled from there.

[14] PW-5, Smt. Hasina Begam stated that after the death of her

husband she became the owner of the offending vehicle and she told that

the accused was the driver of her vehicle.

[15] PW-6, Sri Gopal Debnath is not an eye witness of the

occurrence. He is the scribe of the FIR who told the trial Court that he

scribed the FIR pursuant to the dictation of Sushanta Majumder, son of

the deceased.

[16] Informant, Sri Sushanta Majumder, son of the deceased

appeared in Court as PW-7. In his examination-in-chief he told the trial

Court that he heard about the accident from his mother and came to

know that the speeding vehicle of the accused smashed his father when

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he was waiting for a vehicle near Dhajanagar police line for going to

Atharovola. Evidently, the PW did not witness the occurrence.

[17] PW-8, Sri Khokan Sarkar was a co-passenger with the

deceased in the Tata Magic vehicle from Agartala to Udaipur. According to

the PW, after the deceased got down at Dhajanagar and their vehicle

proceeded to a distance of about 10 cubits the offending vehicle dashed

against the deceased and killed him. It has been deposed by the PW that

the offending vehicle was at a High speed at that time.

[18] Sri Rakhal Sarkar, PW-9 who was another co-passenger with

the deceased in the Tata Magic vehicle on its way from Agartala to

Udipura gave similar evidence. He also stated that after the deceased got

down the vehicle at Dhajanagar, the offending vehicle which was coming

from Udaipur side in high speed dashed against the deceased and caused

his death.

[19] PW-10, Sri Badal Mallik is the Investigating Officer. He did not

explain in his evidence as to why he concluded that the accident occurred

due to rash and negligent driving of the accused. He simply stated in his

evidence that he visited the place of occurrence after the matter was

reported to police and the investigation was endorsed to him. He also

stated that during investigation he examined the witnesses, collected the

post mortem report of the deceased and got the vehicle examined by a

Motor Vehicles Inspector. He states nothing as to how he appreciated the

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materials collected by him and reached the conclusion that the accused

was responsible for the accident.

[20] PW-11, Sri Narayan Ch. Saha is a Motor Vehicles Inspector

who came to the trial Court to confirm that the offending vehicle was in a

road worthy condition at the time of accident. His report (Exbt.5) also

indicates that no damage was caused to the offending vehicle as a result

of the accident.

[21] PW-12, Sri Arun Debbarma supported the inquest report

(Exbt.6) which was prepared by him at G.B.P Hospital, Agartala.

[22] PW-13, Dr. Jayanta Shankar Chakraborty is the Medical

Officer who held the post mortem examination of the deceased after he

died in G.B.P. Hospital at Agartala and testified that the cause of death

was coma due to head injury and the post mortem findings were

consistent with a road traffic accident.

[23] The learned trial Court having relied on the evidence of PWs 3

and 4 came to the conclusion that the offending vehicle was at its wrong

side when the accident took place. More over the vehicle was in high

speed. The learned trial Court therefore, arrived at the conclusion that

the accused driver was guilty of rash and negligent driving and his rash

and negligent act caused the death of the father of the informant.

Accordingly, the learned trial Court convicted the accused petitioner

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under Sections 279 and 304A IPC and sentenced him for the offence. The

relevant extract of the judgment of the trial Court is as under:

"17. It is a settled law that mere high speed of vehicle cannot in itself be a constituent for a rash and negligent act. But, driving at a high speed and that too on the wrong side of the road does raise a finger of rash and negligent act upon the conduct of the driver who was driving the vehicle. When a person drives on a public road, it is expected that the person will take reasonable care and caution to drive the vehicle in such a manner so that it does not create any trouble for the pedestrians and other vehicles which are also going through the road. Each and every person who drives a vehicle on the road knows that he has to drive on his side of the road, otherwise an accident may occur. Driving on the wrong side of the road, at a high speed cannot be taken lightly and is a failure to exercise that reasonable and proper care and precaution and thus, it falls within the definition of criminal rashness and criminal negligence as explained in Empress of India V. Idu Beg (1881 (3) All 776). Therefore, I conclude that the Commander Jeep vehicle bearing No. TR-03-2258 was driven in rash and negligent manner.

18. Now, the next question which requires determination is whether the accused person was the driver of the offending vehicle at the time of the accident. To establish this, the prosecution has examined PW-5, who is the owner of the offending vehicle bearing No. TR-03-2258. In her deposition, Pw5 has stated that on 25.06.2010, Shankar Debnath was the driver of the offending vehicle. The defence side, while cross examining Pw5 even did not deny that the accused was not the driver of the offending vehicle on 25.06.2010 i.e. on the date of the accident. The only admission made by Pw-5 was that the accused never informed the witness about any accident by the vehicle. This does not affect the credibility of the witness. As, the credibility of the evidence of Pw-5 was not impeached in any manner, therefore, reliance can be placed on her evidence to conclude that the accused person was actually driving the vehicle bearing No. TR-03-2258 at the date and time of the accident. From the above evidence adduced by the prosecution, the fact that the accused Sankar Debnath was the driver of the vehicle bearing No. TR-03-2258 on the date and time of accident stands established. The argument advanced by the Ld. Defence Counsel that there was no eye witness who identified the accused person to be driving the offending vehicle at the time of the accident and therefore the offence against the accused person has not been established beyond

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doubt, cannot be accepted because the unshaken evidence of Pw.5 clearly shows that the accused was her appointed driver for the offending vehicle on the date of the accident. The defence side also did not challenge the evidence of PW-5 to that effect. For the said reasons the argument of the Ld. Defence counsel stands rejected.

Thus, in view of the foregoing discussion and reasons, I have no hesitation to hold that the accident took place due to rash and negligent driving of the accused. The prosecution has succeeded in proving the charge under Section 279 IPC, against the accused person, beyond reasonable shadow of doubt. Therefore, point no.[i] is decided in favour of the prosecution and against the accused person.

19. Now, delving on the other question as to whether the prosecution has been able to prove the charge under section 304A IPC, let us have a look at the ingredients of Section 304A IPC. Following are the ingredients:-

i. causing death.

ii. by a rash and negligent act.

In the present case, from the evidence of Pws. 8 and 9, it has been well established that the accident occurred due to rash and negligent driving of vehicle bearing No.TR-03-2258 by accused person. The aforesaid eye witnesses confirmed that due to the accident the victim sustained severe head injury. The evidence of PW.13, the autopsy surgeon, who conducted post mortem of the victim, in his evidence opined the cause of death to be coma due to head injury and the post mortem findings were consistent with RTA. Thus, the medical evidence corroborates ocular evidence. Therefore, I have no hesitation to conclude that the death of the victim was caused due to rash and negligent driving of vehicle bearing No. TR-03-2258 by the accused person. The prosecution has succeeded in establishing all the ingredients of Section 304A IPC. Therefore, point no. [ii] is decided in favour of the prosecution and against the accused person."

[24] In appeal, the learned appellate Court re-assessed the

evidence and concluded that the accused was guilty of negligence

because as a driver he did not take due care and caution which was

expected from a driver. The learned appellate Court also held that the

accident could have been avoided by the accused by exercising due care

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and control over his vehicle. Consequently, he held the accused guilty of

rash and negligent driving and arrived at the conclusion that the

deceased lost his life as a result of his negligent act and upheld the

judgment of the learned trial Court. The relevant extract of appellate

Court's findings is as under:

"12. In order to convict a person under section 279 IPC the following ingredients are to be proved- (a that the accused was driving the vehicle; (b)that the accused was driving the vehicle on a public way; (c) that the accused was driving the vehicle rashly or negligently and (d) that it endangered human life or to likely to cause hurt or injury to any other person. Again to convict a person U/S-304(A) IPC the prosecution must prove that there was rash and negligent act, by the accused, which causes death of a person and such causing of death must not be amounting to culpable homicide.

13. Keeping the aforesaid principle in mind lets now proceed to appreciate the evidence on record to see whether there was any rash and negligent driving by the appellant.

On perusal of the evidence of P.W.3/4/8/9 one thing that is very clear is that the Commander Jeep bearing No. TR¬03¬2258 was identified in plying with high speed and came to the wrong side and dashed the victim who was standing on the Kaccha part covering the pucca part of the main road i.e; on the extreme left side of the main road for another vehicle and from the report(Exbt.5) of P.W.12(MVI) it appears that there was no mechanical disorder in the offending vehicle. From Exhibit-8 it is clear that death of the victim was because of head injury resulting from Road Traffic Accident. It is a fact that the speed is not the sole criterion for determining the rashness and negligence of the driver but in determining the rash and negligence certain factors need to be considered, i.e., the type of road, place, whether the road was crowded, whether the road was straight or zig zag, whether there was presence of any other vehicle, whether the offending vehicle was trying to overtake any other vehicle, whether the road was nearby the commercial place, whether there was presence of any other vehicle at the spot and whether the vehicle was plying in the right side or in the wrong side.

The accident could have been avoided had the Commander Jeep plied under control. It is utmost

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duty of a driver to take care of the fact that his vehicle while running in a public road, should not cause any accident.

Under Section¬279 of IPC it is not necessary that there must be an intention, only act causing the accident is sufficient to infer that the driver was negligent. Even in a case when there is no eye witness as to how the accident occurred even in that event only proof of accident is sufficient to convict the accused if he fails to explain how the accident had happened because as per maxim "Res-ipsa-loquitor" which means that the things speaks for itself, indicates that the accident per-supposes the fact that the driver was negligent at the time of driving.

In addition to the benefit of the aforesaid maxim, the prosecution witnesses clearly stated that the vehicle was in high speed and went to the wrong side and dashed the victim who was waiting on the Kaccha part covering the pucca part of the main road i,e; on the extreme left side of the main road for another vehicle and so it can definitely be inferred that the vehicle was being driven in rash and negligent manner. Had the appellant not done any rash and negligent driving, the accident in the form of dashing the victim, who was standing extreme left of the road, by running towards the right side of the road, would not have happened.

It is not necessary that in every rash and negligent driving vehicle should run in speed. Even in slow speed driving of vehicle may be rash and negligent. Whether a driving is Rash and negligent depends on certain factors such as location of road, its breadth, area of the road i;e whether residential or isolated, whether smooth or rough road, whether in bridge etc.

In the instant case Exbt¬5 the vehicle inspection report was proved by the prosecution to show the fact that the accident did not occur because of any mechanical failure. Vehicle inspector was also examined as P.W.12.

Thus there remains no doubt in holding that the appellant was driving the offending vehicle in rash and negligent manner and because of such driving death of victim Anukul Mazumder was caused."

[25] From the appreciation of the oral evidence of the eye

witnesses namely, PW-3, PW-4, PW-8 and PW-9 it is found that the said

PWs emphasised on the fact that the offending vehicle was at a high Crl. Rev. P No.56/2018.

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speed, as a result of which the petitioner driver lost control over his

vehicle and hit the deceased causing his injuries and death. In the case

of Mrs. Shakila Khader and Ors Vrs. Nausheer Cama and Others:

reported in (1975) 4 SCC 122, the Apex Court observed that speed is

not the only criteria for deciding rashness and negligence on the part of

the driver.

Similar observation was made by the Apex Court in case of

State of Karnataka Vrs. Satish; reported in (1998) 8 SCC 493, which

is as under:

"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."

[26] This High Court also expounded in the case of Suman Saha

Vrs. State of Tripura; reported in (2019) 1 TLR 191 that only high

speed cannot be the conclusive evidence of rash and negligent driving.

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[27] In the present case, the Investigating Officer did not make

any investigation to ascertain about the width of the road, its position,

density of the traffic at the material place and the exact location of the

offending vehicle and those of the witnesses and the deceased at the time

of accident to present a complete picture before the Court to know

actually how the accident took place and who was responsible. In absence

of such evidence it would be unsafe to hold the driver guilty merely on