Tripura High Court
Abdul Ohab vs The State Of Tripura on 31 August, 2024
HIGH COURT OF TRIPURA
AGARTALA
CRL.A.No.21 of 2023
Abdul Ohab
@ Abul Ahab,
S/O- Sri Siraj Miah,
Resident of Jatanbari Muslim Para,
P.S.- NTB, Gomati Tripura.
.... Appellant(s)
Versus
The State of Tripura
Represented by the Ld. Public Prosecutor,
High Court of Tripura,
Agartala, West Tripura.
....Respondent(s)
For Appellant(s) : Mr. K. Pandey, Adv.
For Respondent(s) : Mr. S. Ghosh, Addl. P.P.
Date of Hearing : 30.08.2024
Date of delivery of
Judgment and Order : 31.08.2024
Whether fit for
Reporting : YES
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This appeal is directed challenging the judgment
and order of conviction and sentence dated 29.08.2023
delivered by Learned Sessions Judge, POCSO, Gomati District,
Udaipur, in connection with case No.ST (Type-II) 15 of 2021.
By the said judgment, and order of conviction and sentence,
Learned Sessions Judge has found the appellant to be guilty
and convicted him to suffer SI for one month and to pay fine of
Rs.500/- under Section 279 of IPC I.D. to suffer S.I. for a
further period of 7 days. The convict was further sentenced to
suffer S.I. for a period of six months and to pay fine of
Rs.500/- under Section 338 of IPC, i.d. to suffer S.I. for a
further period of seven days and under Section 304-A IPC, the
convict was sentenced to suffer S.I. for a period of one year
and to pay fine of Rs.3,000/-, i.d. to suffer S.I. for a further
period of one month and it was further ordered that all the
sentences shall run concurrently.
02. Heard Learned Counsel, Mr. K. Pandey representing
the appellant and also heard Mr. S. Ghosh, Learned Additional
P.P. for the State-respondent.
03. In course of hearing of argument, Learned Counsel
for the appellant first of all drawn the attention of the Court
that the Learned Trial Court below in absence of cogent
evidence on record has found the appellant to be guilty for
which the interference of the Court is required. It was further
submitted that in the FIR, there was no whisper showing the
involvement of the pick-up van responsible for the alleged
accident. Referring the evidence of PW1, Learned Counsel for
the appellant drawn the attention of the Court that from the
evidence of said witness, it is clear that at the time of alleged
accident, he was not present to the place of occurrence, rather
in his examination-in-chief, he stated that the FIR was scribed
by him but during cross-examination, he stated that Exhibit-1
was written by his nephew, one Surajit Debbarma. There was
no explanation from the side of prosecution in this regard.
Furthermore, according to Learned Counsel, said
PW1, i.e. the father of the victim was not present to the place
of occurrence at the time of alleged occurrence of offence, so,
no reliance can be placed upon his evidence.
In respect of PW2, he stated that this witness was
also not present to the P.O. at the time of accident. So, no
reliance can be placed upon his evidence.
Similarly, PW3 Bijoy Reang was also not present to
the P.O. at the time of accident because in his examination-in-
chief he stated that when he went to the P.O., that time he
found the dead body of a young boy, but did not see the pick-
up vehicle to the alleged place of occurrence.
Referring the evidence of PW4, Learned Counsel for
the appellant further submitted that the said witness is a SPO
and that witness stood witness for all the seizure lists and
during cross-examination, the said witness stated that the
Bolero Truck was seized from the road at Baidyapara,
Jatanbari. But the I.O. seized the vehicle from the residence of
alleged appellant, which was totally contradictory. There was
no explanation in this regard from the side of the prosecution.
PW5, PW6 were declared hostile by the prosecution.
No benefits were derived by the prosecution from their
evidence.
PW7 is the only one eye witness, i.e. the pillion
rider, who according to the prosecution was on the bike driven
by Sakni Debbarma(deceased) and this witness during his
examination, could not say anything about the number of the
offending Bolero vehicle as well as the name of the driver and
for the first time, he identified the accused in the Court in the
dock. So, no reliance also could be placed upon the evidence of
said witness.
Similarly, PW8 Siddijoy Reang is another seizure list
witness. He was also not present to the place of occurrence at
the time of accident. So, regarding involvement of the
appellant, according to Learned Counsel, prosecution could not
adduce any independent public witness to support the case of
the prosecution.
Similarly, PW9 Kwthar Jamatia was also not present
to the place of occurrence at the time of accident.
PW10 was the owner of the offending Maxi Truck.
From his evidence, no benefit could be derived by the
prosecution.
PW11, Dinesh Jamatia is the owner of the bike who
during cross-examination specifically stated that police did not
seize the motor bike from his possession.
PW12, Dr.Milan Bhakta Jamatia examined one of the
victim, Nakfang Jamatia, i.e. PW7 and submitted his injury
report and also conducted post mortem over the dead body of
deceased Sakni Debbarma.
PW13 another seizure list witness.
PW14 is the MVI.
Referring the evidence of said witness, Learned
Counsel stated that no damage was found on the vehicle
bearing No.TR-01Z-1719 and referring the said evidence
Learned Counsel further drawn the attention of the Court that
had there been any accident, in that case there might be some
sort of damages to the said vehicle or atleast scratch mark to
the said Bolero Maxi Truck, from which it is clear that the
alleged offending vehicle, Maxi Truck was not involved with the
accident. Further referring the evidence of PW16, Learned
Counsel submitted that from the evidence of the I.O. it was
clear that the I.O. could not collect any material showing
involvement of the appellant with the alleged offence although
he laid charge sheet against him. But the Learned Court below
without proper appreciating the evidence on record found the
appellant to be guilty. Further according to Learned Counsel for
the appellant, the deceased had no driving licence which was
admitted by the father of the deceased and just for the
purpose of gaining compensation, this criminal case was filed
without any basis and more so, the appellant in course of his
examination under Section 313 of Cr.P.C. specifically stated
that on the alleged day of occurrence of offence, he did not ply
the vehicle because the vehicle was seized from his residence,
whereas, one of the police personnel i.e. PW4 stated that the
offending vehicle was seized on the road at Baidyapara. There
was no explanation in this regard from the side of prosecution
and finally, on conclusion of argument, Learned Counsel for the
appellant submitted that the prosecution has failed to prove
the charge beyond reasonable doubt against the appellant but
the Learned Court below without proper appreciating the
evidence on record found the appellant to be guilty for which
interference of the Court is required and Learned Counsel
urged for allowing this appeal by setting aside the judgment.
04. Per contra, Learned Counsel for the State-
respondent, Mr. S. Ghosh taking part in the hearing submitted
that he only relies upon the evidence of PW7 and urged for
passing appropriate order for fair ends of justice.
05. I have heard arguments of both the sides. In this
case, the prosecution was set into motion on the basis of an
FIR laid by one Neheru Debbarma, being the father of the
deceased to O.C. Nutanbazar P.S. alleging inter alia that on
02.02.2021 at about 8 a.m., his son Sakni Debbarma along
with his friend Nakfang Jamatia, son of Ratna Singh Jamatia
were coming from his house to Nutanbazar riding a bike
bearing No.TR-01-AE-5014 and when they reached Takumbari,
that time a pick-up van loaded with dry fish came in a very
high speed from the opposite direction and dashed against the
bike of his son. As a result of which, his son fell down from the
bike and the car ran over his body. His son died on the spot
and his friend Bablang also sustained grievous injuries. The
Fire Service staff of Jatanbari went there and brought both of
them to Nutanbazar Hospital and the doctor referred the other
person i.e. Bablang to Udaipur Tepania Hospital.
He further stated that after the occurrence of the
accident the vehicle fled away at a very high speed and the
incident occurred due to rash and negligent driving on the part
of the driver. In the FIR, he could not mention the number of
the offending pick-up van. On the basis of that FIR, O.C.
Nutanbazar P.S. registered NTB P.S. case No.6/2021 under
Section 279/338/304(II) of IPC and Section 184 of M.V. Act
and the I.O. after completion of investigation laid charge sheet
against the present appellant before the Court of jurisdictional
Magistrate and thereafter, the case was committed to the
Court of Learned Sessions Judge, Gomati District, Udaipur, who
after hearing both the sides framed charge against the
appellant under Section 279/338/304(II) of IPC and the same
was explained to the appellant in Bengali to which he pleaded
not guilty. To substantiate the charge, prosecution as already
stated has adduced 15 nos. of witnesses and prosecution also
relied upon some documents which were marked as Exhibits in
this case and finally, on conclusion of trial, the Learned
Sessions Judge found the appellant to be guilty and convicted
him thereon for which this present appeal has been preferred
by the appellant. Now let us see the evidence on record
adduced by the prosecution before the Learned Trial Court
below to substantiate the charge against the appellant.
06. PW-1 Neheru Debbarma is the informant of the
case. He deposed that on 02.02.2021 a vehicular accident took
place at Takumbari and due to that his son Sakni Debbarma
succumbed to injuries. According to PW1, on that day in the
morning at around 8 a.m. his son along with his friend Nakfang
Jamatia were coming on road by riding a motor bike and when
they reached at Takumbari, that time a Bolero Truck bearing
No. TR-01-AE-5014 came from the opposite direction and
dashed against their motor bike for which they sustained
grievous injuries on their person and his son succumbed to
injuries to the place of occurrence and his friend Nakfang
Jamatia was brought to hospital and he could know from the
local people that one Abdul Ohab was the driver of the Bolero
Truck at the time of accident. He laid the complaint to O.C.,
Nutan bazar P.S. which was prepared by him with his own
handwriting marked as Exhibit-1 and his signature marked as
Exhibit-1/1. He further stated police seized some documents of
the vehicle in his presence and he stood as witness on the
seizure list. He identified his signature on the seizure list
marked as Exhibit-2/1. He also stated that police took his
signature on the Inquest Report of the dead body of his
deceased son and marked as Exhibit-3/1.
During cross-examination, he stated that he is
unable to say as to why police obtained his signature earlier
marked as Exhibits but further volunteered that police obtained
his so many signatures in connection with the accident. He also
stated that Exhibit-1 was written by his nephew Surajit
Debbarma. He again stated that on the day of accident, his
son, Sakni Debbarma did not attain the majority and at the
time of accident there was no driving licence in the name of his
deceased son and he did not see the occurrence of offence. He
further admitted that he filed the case before the Tribunal
claiming compensation due to death of his son in that accident.
07. PW2, Khagendra Reang deposed that about one
year back one day in the morning, he was going to his work
place when an accident took place behind him. After the
accident, he rushed to the P.O. and found one boy succumbed
to his injuries and another person sustained injuries on his
person. He further stated that one pick-up vehicle dashed
against the motor bike and thereby the rider succumbed to
injuries and pillion rider received injuries. He further stated
that before his arrival to the place of occurrence, the driver fled
away.
During cross, he stated that he did not see the
accident.
08. PW3 is another public witness, who deposed that
about one year back on a day in the morning at about 8 o'clock
a vehicular accident took place when there was head on
collision between pick-up vehicle and motor bike and after the
accident from his co-villagers he could know that a boy of
tender age succumbed to death due to the vehicular accident
and after the accident, he visited to the place of occurrence
and found the dead body of that young boy but he did not see
any pick-up vehicle as well as the motor vehicle to the place of
occurrence. Police seized the motor bike in his presence and
the witness identified his signature on the seizure list marked
as Exhibit-4/1.
During cross nothing came out relevant.
09. Similarly, PW4 is SPO of police deposed that on
02.02.2021 he was posted as SPO under Nutanbazar Police
Station. On that day, SI of police Jiban Ch. Das being the I.O.
seized one Bolero Maxi Truck in his presence by preparing
seizure list. He stood as witness on the seizure list and
identified his signature marked as Exhibit-5/1. He further
stated that the I.O. seized registration certificate of the said
Bolero vehicle bearing No.TR-01-Z-1719 and other relevant
documents along with Insurance Certificate and his signature
was obtained as witness in the seizure list marked as Exhibit-
6/1. He also stated that I.O. seized two written declarations
produced by one Dhinesh Jamatia and Mizamur Rahaman by
preparing seizure list on 25.03.2021 and marked his signature
as witness marked as Exhibit-7/1.
During cross-examination, he stated that the Bolero
was seized on the road at Baidyapara, Jatanbari, but he could
not say about the contents of the seizure list.
10. PW5 Dulal Das and PW6 Priska Azim only deposed
that about one year back an accident took place, but they
could not say anything about the prosecution case and those
witnesses were declared hostile by the prosecution.
11. PW7 is the victim Nakfang Jamatia deposed that
about one year back one day in the morning he along with
Sakni Debbarma were coming towards Nutanbazar by riding a
motor bike and on the road when they reached nearby
Nutanbazar, that time they met with an accident when one
Bolero pick-up vehicle came from the opposite direction
knocked down their motor bike. As a result, Sakni Debbarma
succumbed to his injuries. He received multiple injuries on his
person and his right leg was fractured. He further stated that
offending Bolero vehicle was coming from the opposite
direction with high speed and it was on the wrong side of the
road at the time of accident and due to its coming to the wrong
side the accident took place. After the accident, he was shifted
to the hospital for treatment and thereafter, he was referred to
District Hospital at Udaipur for better treatment. He also stated
that Sakni Debbarma was the rider of the motor bike and he
was the pillion rider and identified the appellant.
During cross-examination he stated that Sakni
Debbarma did not have his driving licence.
12. PW8, another seizure list witness. He deposed that
on 02.02.2021 in the morning, a vehicular accident took place
at Panchafa Para and one person died in the said accident. He
saw one Fire Service vehicle came to the P.O. and rescued the
dead body and he heard from the local people that one vehicle
suddenly came on the road and after knocking the motor bike
down, it ran away. Police obtained his signature on the seizure
list and identified his signature marked as Exhibit-4/2.
During cross nothing came out relevant.
13. PW9 Kwthar Jamatia also deposed that on
02.02.2021 Sakni Debbarma and Nakfang Jamatia met with a
vehicular accident on the road at Takumbari and after the
accident, he came to know the fact from the local people. Due
to accident, SakniDebbarma has expired and Nakfang Jamatia
received injuries. Police seized Registration Certificate,
Insurance Certificate of the motor bike in connection with this
case. He stood as witness on the seizure list and identified his
signature marked as Exhibit-2/2.
He was declined to cross-examination by the
appellant.
14. PW10 Mizanur Rahaman deposed that he was the
owner of Bolero Truck bearing No.TR-01-Z-1719 and in the
year 2019, the Maxi Truck was sold to Abul Ohab but
ownership was not changed to Abul Ohab. He submitted
written declaration to the police in connection with the case.
The declaration was seized by police and identified the
declaration marked as Exhibit-8 and his signature marked as
Exhibit-8/1. He identified his another signature on the seizure
list marked as Exhibit-7/2.
He was declined to cross-examination by the
appellant.
15. PW11 another seizure list witness deposed that he is
the owner of the motor bike bearing No.TR-01-AE-5014. He
submitted his written declaration to the police in connection
with the case and that declaration was seized by the police and
identified his signature on the seizure list marked as Exhibit-9
and 9/1. He identified his signature on another seizure list
marked as Exhibit-7/3 and further identified his signature on
the seizure list in respect of Registration Certificate, Insurance
Certificate of the motor bike marked exhibit-2/3.
During cross-examination he stated that police did
not seize the motor bike from his possession in connection with
the case and in the declaration, he did not mention anything
about the source of information with regard to accident. He
further stated that save and except Registration Certificate and
Insurance Certificate, he did not produce no other document of
the motor bike to the police in connection with the case.
16. PW12 Dr. Milan Bhakta Jamatia deposed that on
18.03.2021 he was posted as Medical Officer in charge at
Nutanbazar CHC, Amarpur, Gomati Tripura. On that day he
examined one patient, namely Nakfang Jamatia, resident of
Parasmani Para, PS Karbook in connection with Nutanbazar PS
case No.2021NTB 006 dated 02.02.2021 u/s 279/338/304(II)
IPC and Section 184 of M.V. Act.
On examination he had found the following injuries:
1) One cut injury right knee measuring 4 to 5 cm X 1 to 2 cm.
2) fracture right petella
3) Multiple swelling and abrasion over forehead.
4) Cut injury lower lip
Nature of injury grievous injury in nature.
Age of injury 1 to 2 hours.
He identified the injury report of Nakfang Jamatia
marked as Exhibit-10 series (two pages). He further stated
that after preliminary treatment the patient was referred to
District Hospital at Udaipur for better treatment. He again
stated that he conducted postmortem examination over the
dead body of one Sakni Debbarama and on examination, he
found the following injuries:
Internal injuries- a) laceration of soft 13.5 X 5 cm cavity deep
present over the forehead. It is present obliquely over the
forehead Margins of the wounds are irregular and continues on
reflection on the scalp.
b) Sub scalp scalp haematoma present over the in frontal and
parital region.
c) Communicated fracture present over the frontal and parital
region with fracture and anterior cranial fossa.
d) fracture line shows infiltration of blood. Maninges torned
over the frontal region
e) Extradural haematoma present over the right and left parital
region.
f) Subdural haematoma present over the by lateral Pareto
temporal region.
g) Part of brain missing over from frontal content
h) Difused subarachnoid hemorrhage present over which the
brain bone fragment embroided in the brain.
External Injuries: 1) Laceration of size measuring 13.5 X 5 cm
X cavity deep present over the forehead margin of wounds are
confuses.
2) Multiple reddish abrasion of size varying from 2cm X 1 cm
present over left side of the forehead over an area 8 cm X 7
cm lateral to injury No. 1.
3) Reddish abrasion of size 4cm X 2cm present over the right
side of forehead 3 cm above middle right supra orbital region.
4) Laceration of size 3cm X .5 cm X soft tissue deep present
over left eyelid
5) Raddish abrasion of size 3cm X 2 cm present left lower eye
lid and extra to the left side of forehead
6) Multiple abrasion (reddish) size of varying from 2cm X 1cm
to 4 cm to 8 cm present over frontal aspect of right knee over
an area of 8cm X 8 cm.
7) Multiple reddish abrasion of size varying from 2cmX 1 cm to
4 cm X 3 cm present over frontal aspect left knee.
8) Reddish abrasion of size 1cm X 1.5 cm present over middle
medullas of left leg.
All injuries are ante mortem.
Specimen of liver, kidney, heart and spleen handed
over to police for forensic examination.
He stated that the cause of death is blunt trauma on
head. During of death is 4 to 5 hours and he identified the
postmortem report along with his signature marked as Exhibit-
11 series and Exhibit-11/1 series.
17. PW13 is a constable of police. He deposed that on
08.08.2021 the I.O. seized relevant documents of vehicle
bearing registration No.TR-01-Z-1719 in his present at
Nutanbazar PS in connection with the case by preparing seizure
list and obtained his signature as a witness. The witness
identified his signature on the seizure list marked as Exhibit-
6/2. He further stated that on 25.03.2021 the I.O. also seized
a written declaration submitted by one Dinesh Jamatia and one
Mizanur Rahaman by preparing seizure list wherein he stood as
witness and identified his signature marked as Exhibit-7/4.
During cross he stated that he was not conversant
with the contents of the seized documents.
18. PW14, Sourav Chowhan, MVI deposed that on
25.02.2021 he was posted as Inspector of Motor Vehicle in the
Office of District Transport Office, Gomati District, Udaipur. On
that day, he conducted mechanical inspection/examination of a
vehicle bearing registration No.TR-01-Z--1719 in connection
with Nutanbazar PS case No.6 of 2021 NTB 006 dated
02.02.2021 under Section 279/338/304(II) of IPC and 184 of
M.V. Act at Nutanbazar PS complex. On inspection he had
found the following condition of the vehicle:
I) Break assemble were serviceable;
II) Steering was serviceable;
III) Horns was in operative condition;
IV) Lights were in working condition;
V) All the tyre were properly inflated
VI) All other important parts of the vehicles were in serviceable
condition.
No damage was found with the vehicle while
inspection.
He submitted his report and identified the report
dated 26.02.2021 marked as Exhibit-12 and his signature
marked as Exhibit-12/1 series.
He further examined another vehicle bearing
registration No.TR-01-AE-5014 on 23.03.2021 at Nutanbazar
PS complex and found the following conditions of the vehicle:
I) Break assemble were serviceable.
II) Steering was serviceable;
III) Horns was in operative condition;
IV) Lights were in working condition;
V) All the type were properly inflated;
VI) All other important parts of the vehicles were in
serviceable condition.
He also found damage on the following parts:
1) Handle;
2) Front indicators;
3) Leg guard;
4) Front fork;
5) Engine block;
He submitted his report and identified his report
dated 24.03.2021 marked as Exhibit-13 having his signature
marked as Exhibit-13/1 series.
During cross nothing came out relevant.
19. PW15 Nazir Miah deposed that he wrote an ejahar
as per the narration of Neheru Debbarma and identified the
ejahar marked as Exhibit-1.
During cross-examination he stated that Exhibit-1
does not contain certificate that it was read over and explained
to the informant Neheru Debbarma and he did not put his
signature as a scribe on the ejahar.
20. PW16, S.I. Jiban Ch. Das, is the I.O. of this case. He
deposed that on 02.02.2021 he was posted as S.I. Police at
Nutanbazar P.S. On receipt of an ejahar laid by one Neheru
Debbarma, O.C. Nutanbazar P.S. registered NTP P.S. case
No.06 of 2021 under Section 279/338/304(Part-II) of IPC and
Section 184 of the M.V. Act. He identified the printed FIR form
filled up in the computer while making registration and
identified the same filled up by R.O. containing his signature
marked as Exhibit-13 and Exhibit-13/1. He further identified
the ejahar containing the signature of R.O. marked as Exhibit-
1/2. He also stated that prior to the registration G.D. entry was
placed by himself in connection with the alleged vehicular
accident on the basis of that G.D. entry vide No.07/2021. On
the basis of it a preliminary enquiry was done and
subsequently after the registration of a specific case, he took
up the charge of the investigation of this case, he visited P.O.,
prepared hand sketch map with index, seized the vehicles
involved in the accident, examined some witnesses and
recorded their statements and after the completion of
investigation, he laid charge sheet against the accused
appellant. He identified the hand sketch map with separate
index marked as Exhibit-14 and 14/1. He also seized the
offending vehicle bearing No.TR-01Z-1719 Bolero MAX by
preparing seizure list marked as Exhibit-5 containing his
signature marked as Exhibit-5/2. He seized one Pulser Motor
Bike bearing registration No.TR-01AE-5014 by preparing
seizure list dated 02.02.2021 marked as Exhibit-4 containing
his signature as Exhibit-4/3. He also seized the relevant
documents including Insurance Certificate of the offending
Bolero Maxi by preparing separate seizure list marked as
Exhibit-6 and his signature marked as Exhibit-6/3 and the
documents of the vehicle by another seizure list marked as
Exhibit-2 and his signature marked as Exhibit-2/4. He also
seized the viscera of the dead body by preparing seizure list
marked as Exhibit-15 and his signature marked as Exhibit-
15/1.
He further stated that during investigation he
procured the M.V.I. report of both the vehicles and after
completion of investigation, he laid the charge sheet.
During cross-examination, he volunteered that on
the day of accident the Insurance Certificate of the bike was
valid till 10.12.2021. He did not seize the driving licence of the
deceased Sakni Debbarma in connection with this case which
also he did not mention in the charge sheet and further
volunteered that from the statement of witnesses and other
circumstances, it was revealed that on the alleged date and
time the rider of the Pulser Bike was deceased Sakni Debbarma
and pillion rider was Nakfang Jamatia who also sustained injury
and the number of the Motor Bike was TR-01AE-5014 and the
offending Bolero vehicle was TR-01Z-1719 loaded with grocery
items which came from the opposite direction dashed against
the Pulser Motor Bike. He could not say as to whether at the
time of investigation it was not revealed to him as to whether
the deceased had valid driving licence or not and after seizure,
the offending Bolero and the Pulser Motor Bike were in the
custody of Nutanbazar P.S. till producing them before the
M.V.I. During the custody of vehicles at P.S., no repairing was
done.
These are the sum and substance of the evidence
on record of the prosecution to substantiate the charge levelled
against the appellant.
21. I have heard arguments of both the sides at length
and discussed the evidence on record in detail above. From the
evidence on record, it appears that at the time of accident,
excepting PW7 no other witnesses were present to the P.O. In
the FIR the informant did not whisper anything mentioning the
number of the offending Bolero Maxi Truck. He also stated that
he was not present to the P.O. at the time of accident. In his
examination-in-chief he stated that he laid the FIR but during
cross-examination he stated that the ejahar was scribed by
one of his nephew, Surajit Debbarma. There was no
explanation from the side of the prosecution. PW2, Khagendra
Reang also appeared to the P.O. after the accident. So, it was
not possible on his part as to how the accident occurred.
Similarly, PW3 was not present to the P.O. at the time of
accident. He appeared to the P.O. after the accident. So,
virtually there is no scope to place any reliance upon the
evidence of PW3. Similarly, PW4 another seizure list witness.
More interestingly, he stated that the Bolero was seized on the
road at Baidyapara, but according to I.O. the vehicle was
seized from the residence of alleged appellant. There was no
explanation in this regard from the side of the prosecution.
PW5 and PW6 could not say anything about the prosecution
case. From their evidence, prosecution could not derive any
benefit. PW7 is the victim. He stated about the fact of accident.
But he could not say the number of the vehicle, even from his
evidence, it appears that for the first time he identified the
accused appellant before the Court. So, from his evidence it
cannot be conclusively said that the appellant had driven the
vehicle. Admittedly, there was no dispute on record regarding
the fact of accident on the alleged day. PW8 is another seizure
list witness. He was also not present to the P.O. at the time of
alleged accident. PW9 Kwthar Jamatia also appeared to the
P.O. after the accident. So, no reliance could be placed upon
their evidence. PW10 is the owner of the Bolero Maxi pick-up
van. He was not present to the P.O. at the time of accident.
So, no reliance can be placed upon his evidence regarding the
fact of accident on the alleged day. PW11 was also not present
to the P.O. He is the owner of the motor bike. PW12, Medical
Officer. PW13 is the constable of police. PW14 is the M.V.I.
From his evidence, he specifically stated that in course of his
examination he did not find any damage on the alleged
offending vehicle. Now the question remains had there been
any sort of accident, in that case, at the time of examination of
the vehicle, definitely he could find some sort of damage or
scratch of mark on the body of the offending pick up van,
although he found some damages on the motor bike. PW15 is
the scribe, who scribed the ejahar and PW16 is the I.O.
22. In a case of this nature, burden lies upon the
prosecution to prove the charge beyond reasonable doubt
against any accused. Here in the given case, if we meticulously
go through the examination, it appears that at the time of
alleged accident excepting PW7 no other witnesses were
present to the P.O. All the witnesses who deposed about the
accident appeared to the P.O. after the accident. So, they did
not see that the present appellant to drive the vehicle and
those witnesses also could not disclose the number of the
offending Maxi Truck, nor they have found the appellant to the
alleged P.O. at the time of accident. One of the witnesses, PW4
stated that the vehicle was seized at Baidyapara but the I.O.
seized the vehicle from the residence of the appellant. These
loopholes were not explained by the prosecution at the time of
hearing of argument before this Court. More so, the M.V.I.
stated that he did not find any damage to the Maxi Truck, in
course of his examination.
23. In course of hearing of argument, Learned Counsel
for the appellant relied upon one citation of the Hon'ble
Supreme Court in P. Sasikumar vs State rep. by the
Inspector of Police dated 08.07.2024 reported in (2024)
SCC OnLine SC 1652 wherein Hon'ble the Apex Court in para
No.12 observed as under:
12. It is well settled that TIP is only a part of
Police investigation. The identification in TIP
of an accused is not a substantive piece of
evidence. The substantive piece of evidence,
or what can be called evidence is only dock
identification that is identification made by
witness in Court during trial. This
identification has been made in Court by PW-1
and PW-5. The High Court rightly dismisses
the identification made by PW-1 for the
reason that the appellant i.e., accused no.2
was a stranger to PW-1 and PW-1 had seen
the appellant for the first time when he was
wearing a monkey cap, and in the absence of
TIP to admit the identification by PW-1 made
for the first time in the Court was not proper.
However, the High Court has believed the
testimony of PW-5 who has identified accused
no.2 under similar circumstances! The
appellant was also stranger to PW-5 and PW-
5 had also seen the accused i.e., the present
appellant for the first time on that fateful day
i.e. on 13.11.2014 while he was wearing a
green colour monkey cap. The only reason
assigned for believing the testimony of PW-5
is that he is after all an independent witness
and has no grudge to falsely implicate the
appellant. This is the entire reasoning. We are
afraid the High Court has gone completely
wrong in believing the testimony of PW-5 as
to the identification of the appellant. In cases
where accused is a stranger to a witness and
there has been no TIP, the trial court should
be very cautious while accepting the dock
identification by such a witness (See:
Kunjumon v. State of Kerala, (2012) 13 SCC
750)."
In the given case no TI Parade was conducted by
I.O, for proper identification of the appellant as the driver of
the offending alleged pick-up van. So, until and unless it is
proved beyond doubt that the present appellant had driven the
vehicle on the alleged day at the time of accident, there is no
scope to presume him to be guilty with alleged occurrence of
offence.
24. Here in the given case, it appears that Learned
Court below at the time of delivery of judgment has failed to
appreciate the evidence on record properly, because in this
case, prosecution could not place any material before the Court
and beyond reasonable doubt that the present appellant was
the driver of the offending truck at the time of alleged accident
and prosecution also failed to satisfy the Court that the alleged
offending Maxi Truck was driven by the appellant at the time of
alleged accident. The informant although was not present to
the P.O., in course of his examination stated that the alleged
offending vehicle was carrying dry fish but the I.O. stated that
the vehicle was loaded with grocery items. But in this regard,
no details of grocery items were submitted to substantiate the
prosecution allegation. The prosecution also failed to explain
this at the time of hearing of argument. The appellant, in
course of his examination under Section 313 of Cr.P.C. stated
that on the alleged date he was at his home and he did not
come out from his residence along with the alleged offending
pick-up van. Moreover, none of the witnesses of the
prosecution, in course of their examination disclosed that they
have found the appellant to the P.O. along with the offending
vehicle at the time of accident or soon after the accident,
although all of them appeared to the P.O. later on. The only
eye witness PW7 could not whisper about the details of the
alleged-appellant in course of his examination. Rather from his
evidence, it appears that for the first time he identified the
appellant before the Court. More so, as already stated no TIP
was conducted for identification of the accused-appellant by
the prosecution. So, after going through the evidence on
record, it appears that Learned Court below at the time of
delivery of judgment did not consider all those aspects for
which in my considered view, the interference of this Court is
required.
25. Situated thus, on the face of evidence on record, it
appears that the evidence of the prosecution suffers from
infirmity and on the face of evidence on record the present
appellant deserves to be acquitted on benefit of doubt which I
hereby do.
26. In the result, the appeal filed by the appellant is
hereby allowed. The judgment and order of conviction and
sentence dated 29.08.2023 delivered by Learned Sessions
Judge, POCSO, Gomati District, Udaipur, in connection with
case No.ST (Type-II) 15 of 2021 is hereby set aside and
accordingly, the appellant is hereby acquitted on benefit of
doubt and he is set at liberty. His surety also stands discharged
from the liability of bail bond. The case is thus, accordingly
disposed of.
Send down the LCRs along with copy of the
judgment for immediate compliance.
Pending application(s), if any, also stands disposed
of.
JUDGE
MOUMITA Digitally signed by MOUMITA
DATTA
DATTA Date: 2024.09.02 16:38:49 +05'30'
Purnita
