Abul Hussain VsThe State of Tripura

Utpalendu Bikas Saha, J.—The petitioner has filed this revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure for quashing/setting aside the judgment and order dated 16.02.2008 passed by the learned Sessions Judge, South Tripura, Udaipur in Criminal Appeal No. 32(4) of 2007 affirming the judgment of conviction and order of sentence dated 15.11.2007 passed in case No. G.R. 18 of 2007 by the learned Sub Divisional Judicial Magistrate, Sabroom, South Tripura wherein the petitioner was convicted under Section 279 and 337 of IPC and sentenced to suffer simple imprisonment for two months with a fine of Rs. 500/- for commission of offence punishable under Section 337 IPC in default of payment of fine to suffer simple imprisonment for one month.

Heard Mr. D. Bhattacharji, learned counsel appearing for the petitioner as well as Mr. RC Debnath, learned Additional Public Prosecutor.

The prosecution story on the basis of which the trial Court convicted the petitioner and the appellate Court upheld the same, is as follows:

That one Sri Abdul Mia lodged a complaint before the learned Sub Divisional Judicial Magistrate, Sabroom, South Tripura against the petitioner alleging that he had driven his vehicle rashly and negligently and with a high speed for which he met an accident over the Sabroom-Udaipur road and because of the said vehicular accident, the son of the complaint Abadul Miah along with other passengers sustained grievous bleeding injuries.

On receipt of the complaint petition, the learned Sub Divisional Judicial Magistrate, Sabroom, South Tripura sent the same to the Officer In-charge of Manu Bazaar Police Station for investigating the allegation and a specific police case was registered being Manu Bazaar P.S. case No. 01 of 2007 under Sections 279/ 337/ 338 IPC. It also appears from the complaint that on 17.12.2006 the alleged accident occurred and the son of the complainant met with an accident out of his journey from Sabroom towards Udaipur by boarding a cruiser jeep bearing No. TR-03-3856. As per contents of the complaint, the said accident took place at about 1100 hours on the public road in between Udaipur and Sabroom at Goachand due to rash and negligent driving of the driver i.e. the convict petitioner. Son of the complainant was shifted from Manu Bazaar to Udaipur and from Udaipur he was referred to GBP hospital, Agartala.

After the investigation police filed the charge sheet against the convict petitioner under Sections 279/ 337/ 338 IPC. On receipt of the charge sheet, the learned trial Court took cognizance of offence under Sections 279/ 338 IPC and also examined the convict petitioner under Section 251 Cr.P.C.

The prosecution examined as many as 16 witnesses and after completion of the examination of the evidence, the convict petitioner was examined under Section 313 Cr.P.C. After hearing the parties, the learned trial Court found the petitioner guilty and convicted him under Sections 279/ 337 IPC and sentenced him to suffer simple imprisonment for two months and to pay a fine of Rs. 500/- and in default of payment of fine to suffer simple imprisonment for further one month for commission of offence under Section 337 I.P.C. No separate sentence was passed in respect of offence under Section 279 I.P.C.

Being aggrieved by the judgment of the learned trial Court, the petitioner preferred an appeal before the learned Sessions Judge, South Tripura, Udaipur which was registered as Criminal Appeal No. 32(4) of 2007. Upon hearing the learned counsel for the parties, the appellate Court maintained the order of conviction and sentence passed by the learned trial Court in his judgment dated 16.02.2008. Being aggrieved by and dis-satisfied with the judgment of the appellate Court, the convict petitioner preferred the instant revision petition.

Mr. Bhattacharjee, learned counsel appearing for the convict petitioner would contend that though the accident is admitted but there is no material available in the evidence of the prosecution that the vehicle was driven at a high speed and in rash and negligent manner and due to such negligence of the convict petitioner, the alleged accident took place and son of the complainant i.e., P.W. 7 was hurt and injured and consequent thereto he was hospitalized. Mr. Bhattacharjee, also contended that the negligence is to be specifically proved by the prosecution for establishing its case as the negligence means breach of duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate conduct of human affairs would do or the doing of something which a prudent and reasonable man would not do. In the instant case, it is totally absent from the evidence of the prosecution witnesses that the convict petitioner failed to do something which was required to be done by him.

Mr. R.C. Debnath, learned Additional Public Prosecutor placing the evidence of the prosecution evidence would contend that the prosecution has proved its case and the learned trial Court rightly convicted and sentenced the petitioner and the appellate Court has also rightly affirmed the said judgment.

This Court has gone through the evidence on record and according to this Court the learned trial Court has rightly convicted the petitioner under Sections 279/ 337 I.P.C. but the sentence for commission of offence under Section 337 I.P.C. as passed by the learned trial Court is a bit higher in side and when the Section 337 prescribes the punishment for imprisonment for either description for term which may extend to six month or with fine which may extend to Rs. 500/- or with both, in that case normally the Court should not go for sending a person in jail. Moreso, by this time already 8 (eight) years elapsed. Thus, it would not be proper to send the present petitioner again in jail.

In view of the above, the order of sentence is modified to the extent of fine of Rs. 500/- (rupees five hundred) in default to suffer simple imprisonment for three weeks. The said fine money shall be deposited in the trial Court within 2 (two) months from today and if the aforesaid fine money is deposited then the same should be paid to the victim Atik Hossain, i.e., the son of the complainant. Bail bond of the petitioner will be discharged only after deposit of the fine money. If the fine money is not deposited within time, as specified herein above, then the trial Court shall take all necessary steps for taking the petitioner in custody to undergo the sentence, as stated above.

With the above order, the instant criminal revision petition is partly allowed. Send down the LCRs forthwith.