Sri Anup Paul Son Sri Narayan ... vs The State Of Tripura Represented ...
2021 Latest Caselaw 1144 Tri

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                    HIGH COURT OF TRIPURA
                          AGARTALA
                      Crl.Rev.P.No. 68 of 2019
Sri Anup Paul Son Sri Narayan Chandra Paul Resident of village-
Kalinagar, PO and PS Belonia, District-South Tripura, Pin-799155
                                                -----Petitioner(s)
                            Versus
The State Of Tripura Represented by PP, High Court of Tripura,
Agartala.
                                            -----Respondent(s)

BEFORE

HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY For Petitioner(s) : Mr. P.K.Ghosh, Adv.

For Respondent(s) : Mr. Ratan Datta, PP.

Judgment and Order(oral) 24.11.2021 [1] By means of filing this Criminal Revision Petition,

petitioner has challenged the judgment dated 13.08.2019 passed by

the Sessions Judge, South Tripura, Belonia affirming the conviction

and sentence of the petitioner under Sections 279 and 338 IPC

awarded by the Judicial Magistrate First class, Belonia, South

Tripura by judgment dated 31.07.2017 passed in case

No.PRC(SP)36 of 2016 whereby the petitioner was sentenced to SI

for 2 months for committing offence punishable under Sections 279

IPC and SI for 3 months for committing offence punishable under

Sections 338 IPC.

[2] Aggrieved petitioner has challenged the impugned

judgment by filing this criminal revision petition on several

grounds.

[3] The factual background of the case is as under:

Smt.Maya Deb(Sarkar), wife of Mounabrata Sarkar of

Madhyapara, Belonia lodged an FIR with the Officer-in-Charge of

Belonia police station on 03.01.2016 alleging that at about 11

O'clock in the night on 31.12.20215 a speeding vehicle bearing

registration No.TR 08 0280 hit her husband when he was speaking

on his cell phone after parking his motor bike bearing registration

No.TR 03 B 4922 on the left side of the road in front of a shop near

the police station. The informant wife of the injured further alleged

in her FIR that the offending vehicle was being driven so rashly and

negligently that when it hit her husband, he received fatal injuries

and immediately he was shifted to Belonia hospital in a critical

condition by a fire-service vehicle. From there he was referred to

GBP and AGMC hospital at Agartala. As a result of the accident,

bone of the left leg of her husband got fractured. She claimed

police investigation and prosecution of the accused.

[4] Based on her FIR, Belonia P.S. Case No. 2016/BLN/

001 under Sections 279&338 IPC and Section 187 MV Act was

registered and the investigation of case was taken up by Sadhan

Majumder, SI of Police of Belonia Police Station [PW-15]. During

investigation, the IO visited the crime scene and examined the

material witnesses of the case and recorded their police statements

under Section 161 Cr.P.C. He had also drawn up hand sketch map

[Exbt.7] of the crime scene along with a separate index [Exbt.8].

This apart, he seized the offending vehicle along with the

documents of the vehicle and got the vehicle examined by a Motor

Vehicles Inspector [PW-16] two weeks after the occurrence. The

Motor Vehicles Inspector [PW-16] opined that there was no

mechanical disorder in the vehicle when the accident occurred. The

IO thereafter, collected the injury report of the victim in which the

doctor opined that the injury was grievous in nature and caused by

high velocity trauma.

[5] On the basis of such materials collected during the

investigation, the IO laid charge-sheet against the accused for

having committed offence punishable under Sections 279 and 338

IPC and Section 187 MV Act.

[6] The jurisdictional Chief Judicial Magistrate had taken

cognizance of offence on the basis of the prima facie incriminating

materials which were placed before the court and explained to the

accused the accusation brought against him in terms of Section 251

Cr.P.C. Accused pleaded not guilty and claimed trial.

[7] In the course of trial, prosecution examined as many as

16 witnesses including the first informant [PW-1] and her injured

husband [PW-9].

[8] Apart from adducing the oral evidence of the

prosecution witnesses, prosecution also relied on 11 exhibits

[Exbt.1 to Exbt.11/2]. After the prosecution evidence was closed,

accused was examined under Section 313 Cr.P.C. Defence case is a

plain denial of the prosecution charge. Accused claimed that he did

not drive the offending vehicle and he was falsely implicated in the

case. He wanted to adduce evidence on his defence. But, ultimately

he did not adduce any evidence on his defence.

[9] On appreciation of evidence, the trial court came to the

conclusion that accused caused grievous hurt to Maunabrata Sarkar

alias Lalu Sarkar by rash and negligent driving of his vehicle and

therefore, he was convicted and sentenced for having committed

offence punishable under Sections 279 and 338 IPC. The trial court

however, acquitted him of the charge of Section 187 MV Act

viewing that charge of violation of Section 132 or Section 133 or

Section 134 of the MV Act was not proved against the accused

because no one had seen him fleeing with his vehicle after

committing the accident. Since the trial court found that charges

under Sections 279 and 338 IPC was established, petitioner was

convicted and sentenced for those offences.

[10] Aggrieved petitioner preferred appeal against the

judgment of the trial court before the Sessions Judge, South

Tripura, Belonia. Learned Sessions Judge, re-evaluated the entire

evidence and came to the conclusion that there was no reason to

disagree with the findings of the learned trial court. Viewing thus,

the learned Sessions Judge affirmed the conviction and sentence of

the petitioner.

[11] Heard Mr.P.K.Ghosh, learned advocate appearing for

the petitioner and Mr. Ratan Datta, learned PP representing the

State respondent.

[12] Counsel appearing for the petitioner contends that no

evidence was produced on behalf of the prosecution to prove

recklessness on the part of the accused and therefore, his conviction

under Section 338 IPC is completely erroneous. Counsel argues that

even if, for the sake of argument it is assumed that the victim

received injuries from a road traffic accident, obviously such

accident occurred due to his contributory negligence because

admittedly he was on his motor bike at the time of occurrence and

while driving his bike he was speaking on his cell phone. Counsel

submits that plea of the victim that he parked his motor bike for

speaking on his cell phone is entirely false because evidence

adduced on behalf of the prosecution does not support such plea of

the victim. Counsel further, submits that the trial court has recorded

contradictory findings in the judgment because trial court acquitted

the accused of the charge of Section 187 MV Act viewing that no

one had seen him fleeing away from the place of accident whereas

he was held guilty for committing such accident on the basis of the

statements of the same witnesses that accused fled with his vehicle

after hitting the victim. Arguing thus, counsel urges the court for

setting aside the conviction and sentence of the petitioner.

[13] Mr.Ratan Datta, learned PP contends that concurrent

findings of the courts below are based on sound evidence. The trial

court as well as the appellate court has given reasoned decision

after complete evaluation and re-evaluation of the prosecution

evidence and therefore, there is no reason to interfere with the

impugned judgment.

[14] In the course of their arguments counsel representing

the parties had taken me to the evidence of the prosecution

witnesses. PW-1, is no eye witness to the occurrence. She heard

about the occurrence after her injured husband was taken to

hospital.

In her cross examination she categorically stated that

she did not witness the accident. She came to know about the

accident from PW-3, PW5 and PW-6.

[15] Section 279 IPC prescribes punishment for rash

driving or riding a motor vehicle on public way in a manner so rash

and negligent which is likely to endanger human life or likely to

cause hurt or injury to any other person. Similarly Section 338 IPC

prescribes punishment for causing grievous hurt to any person by

doing any rash or negligent act which is likely to endanger human

life or personal safety of others. Even though there is a distinction

between the offences created under the two statues the common

element involved in both the offences is the element of recklessness

which is likely to endanger human life or the personal safety of

others. Therefore, proof of recklessness is a sine qua non to

establish charge under Section 279 or Section 338 IPC.

[16] Since PW-1 did not see the accident herself, her

evidence is not of much relevance. PW-2 Sibupada Shil stated that

he was on his scooter near the place of occurrence at the material

time. He had seen that the offending vehicle was being driven in a

rash and negligent manner which hit the husband of the first

informant and caused his injuries.

In his cross examination he stated that the injured was

speaking on his mobile phone standing in front of a shop at the

place of occurrence.

[17] PW-3 Bhulan Deb also claimed to be the eye witness

to the occurrence. He was returning to home after closing his

restaurant. He noticed the offending vehicle coming from the side

of the BKI school and in the twinkling of his eyes the accident

occurred. He rushed to the spot where he met the injured lying on

the road. He did not say anything about rashness or negligence on

the part of the accused in driving the offending vehicle.

[18] PW-4 Sujan Ray, stated in his evidence that he was

gossiping at a nearby place along with his friends from where he

saw the accident taking place. He also did not attribute any

negligence to the accused in driving his vehicle.

[19] PW-5 and PW-6 gave similar evidence. Both of themn

were sitting together at a nearby place along with PW-4 from where

they had seen the accident taking place. According to PW-5, the

accused drove his vehicle in a rash and negligent manner which

resulted in the accident. PW-6 also attributed rashness and

negligence to the accused driver.

[20] PW-7 Rajib Sarkar is no eye witness to the occurrence.

He heard about the occurrence from his aunt Maya Deb (Sarkar)

who is the first informant of this case. Therefore, his evidence does

not have any relevance.

[21] PW-8 is the owner of a Xerox shop in front of which

the alleged accident took place. The PW stated that after closing his

shop he went to a nearby temple from where he heard a robust

sound and turned back. The accident occurred by that time in which

husband of the first informant received fracture injury in his leg. He

did not witness the accident. He however, came to know that the

accident occurred due to rash and negligent driving.

[22] PW-9 is the informant. As per his version, on his way

back home on his motor bike, he received a call on his mobile.

Immediately he parked his bike to respond to the call. At that time

the offending vehicle hit him in front of a Xerox shop as a result of

which bone of his left leg was fractured. The PW stated that the

accident occurred due to rash and negligent driving of the vehicle.

[23] PW-10 is the fireman who transported the victim to

hospital in a fire service vehicle after the occurrence. PW-11 is also

a fireman who gave same evidence. PW-12 was the scribe of the

ejahar who had no first-hand knowledge about the accident. PW-13

is a medical officer who attended the injured at Belonia hospital

who was reported to have received the injuries in a road traffic

accident. The PW examined the injured and found multiple injuries

including fracture in the left leg of the injured. PW-14 is another

medical officer who examined the injured at AGMC and GBP

hospital at Agartala and found similar injuries in his body.

[24] PW-15 is the IO of the case who stated that he laid

charge sheet against the accused since materials collected by him

during investigation prima facie supported the charge against the

accused. PW-16 is a Motor Vehicles Inspector who examined the

offending vehicle at the police station 15 days after the occurrence

and opined in his report that accident did not occur due to any

mechanical fault of the vehicle.

[25] The evidence discussed herein above would

demonstrate that except the omnibus statement of some of the

witnesses, there is no other cogent evidence with regard to

negligence and recklessness on the part of the accused driver.

Undoubtedly the investigating agency has done a shallow

investigation in the case. Even though the IO visited the crime

scene and he had drawn up hand sketch map of the place of

occurrence with a separate index, the map[Exbt.7] and index

[Exbt.8] do not indicate to the exact location of any of the eye

witnesses as well as their distance from the place of occurrence who

claimed to have seen the accident. In absence of such material

truthfulness of their statements cannot be ascertained. Moreover, a

critical examination of the eye witnesses will show that all eye

witnesses did not attribute negligence to the accused driver even

though they claimed to have seen the accident happening from the

same place.

[26] PW-2, Shibu Pada Shil told the trial court that he had

seen the accused negligently driving his vehicle where as PW-3,

Bhulan Deb and PW-4 Sujan Roy who claimed to have witnessed

the accident together almost from the same place, did not attribute

any negligence or recklessness to the accused.

[27] In a case of road traffic accident the topography of the

place of occurrence, frequency of vehicular movements at that

place, width of the road are some of the relevant considerations.

The investigating agency did not present any material before the

trial court on those aspects.

[28] As discussed, some of the witnesses have simply stated

that the vehicle was driven in rash and negligent manner. Without

any concrete proof of rashness and negligence, criminal liability

cannot be attributed to the accused driver on the basis of such

omnibus statements even though it has been established by the

medical evidence that the victim received fracture injuries from the

said accident. Victim's statement is not also free from doubts.

Victim stated that he was returning home on his motor bike at the

time of occurrence. It was 11 O'clock in the night. Having received

a call in his mobile, he parked his bike at the road side to respond to

the call. There is merit in the argument of the defence counsel that it

is quite improbable that the victim would park his vehicle to

respond to a call on his mobile at such late night when he was in a

rush to reach home. It is nobody's case that accused was drunk or

his vehicle was overloaded at the time of the accident. Obviously,

the road was almost free at that hour of the night. Victim stated that

he was on the extreme side of the road and his motor bike was kept

parked while he was speaking on his mobile. At the time the

offending vehicle hit him. Had it been so, there would have been

more extensive damage to life and property. This apart, neither in

the seizure list nor anywhere in the report of the investigating

agency, there is any mention with regard to any damage caused to

the offending vehicle as a result of such accident. The IO should

have also produced the bike of the victim before the Motor Vehicles

Inspector for ascertaining as to whether there was any collision

between the two vehicles. This was not done by the IO.

[29] In such circumstances, the prosecution case cannot be

said to have been proved beyond reasonable shadow of doubt and

the benefits of such doubts should be given to the accused.

[30] For the reasons stated above, accused stands acquitted

of the charges under Sections 279 and 338 IPC.

Resultantly, the Criminal Revision Petition stands

allowed and the case is disposed of.

Pending application(s), if any, shall also stand disposed

of.

Return the LC record.

JUDGE

Saikat Sarma, PS-II