Binoda Bihari Sharma vs State of Orissa

C.R. Dash, J.—This revision arises out of the appellate judgment of conviction of the Petitioner under Sections 279/304A I.P.C. The Petitioner has been sentenced to suffer R.I. for three months for the offence u/s 279 I.P.C. and R.I. for six months for the offence u/s 304A I.P.C. with a direction that both the sentences shall run concurrently.

Compendium of the prosecution case is that at about 9.30 A.M. on 09.08.1990 near Sendhei Bridge of village Tarimula in the district of Keonjhar, the present Petitioner caused serious to one Pinku Rout, a boy of four years old, by dashing against him the scooter, he was driving in a rash and negligent manner. Subsequently said Pinku succumbed to the injuries while undergoing treatment in S.C.B. Medical College and Hospital, Cuttack. On the basis of the causality memo submitted by the Medical Officer (P.W.11), P.W.13, S.I. of Police attached to Ghasipura Police Station drew plain paper F.I.R. and took up investigation. On completion of investigation, charge sheet was filed against the Petitioner implicating him in the offence punishable u/s 279, 304A/201 I.P.C.

The defence plea is one of complete denial and alternatively it is pleaded that on the relevant date on which the accident occurred the scooter alleged to be involved in the accident was under repair in the garage of D.W.1 located at Jajpur Road.

The prosecution has examined 13 witnesses to prove the charge. Out of them learned trial court held P.Ws. 1,2,3,4,5, 6 and 8 to be the eye witnesses to the occurrence. P.Ws. 11 and 12 are the Medical Officers. P.W.13 is the I.O. Some of the witnesses had attended the "Sudhikriya" of the deceased boy and P.W.7 claimed himself to be the pillion rider at the time of the accident. The defense has examined D.W.1 to prove the fact that on the relevant date of the alleged accident the scooter was being repaired by D.W.1 in his garage at Jajpur Road.

Learned Counsel for the Petitioner submits that there are material contradictions in the evidence of the witnesses. It is further submitted that P.W.5 having corroborated the defense plea to the effect that the accident was caused owing to bursting of tyre making the scooter to swerve beyond the control of the Petitioner, the conviction as recorded by the learned court below is not tenable in the eye of law. Learned Counsel for the state on the other hand supports the impugned judgment.

It is well settled in law that the revisional court is precluded from scanning the evidence as done in an appeal unless it is shown to the satisfaction of such court that there has been error by the court concerned in the decision making process. It has been held in number of decisions that improper appreciation and mis-appreciation of evidence is an error pertaining to such a realm.

Perusal of the impugned judgments shows that learned trial court held P. Ws.1 to 5, 6 and 8 to be the eye witnesses and relied mostly on the evidence of P.W.1, who was present just at the spot of the occurrence. He also took into consideration evidence of other prosecution witnesses. Learned Sessions Judge in appeal, as found from the appellate judgment, has scanned the evidence in great details and has held that P. Ws. 6 and 8 are post-occurrence witnesses. He has held P. Ws. 1 to 5 to be eye witnesses and relying on their evidence and other corroborative evidence has held the Petitioner guilty of offence u/s 279/304A I.P.C. In view of cogent evidence adduced by the prosecution through P. Ws. 1 to 5, learned courts below, on the face of such evidence have rightly disbelieved D.W.1. On thorough re-examination of the evidence on record, learned appellate court having reached its findings, I do not feel persuaded to reexamine the evidence against in exercise of my revisional jurisdiction. The contradictions pointed out by learned Counsel for the Petitioner are also at the fringe and by no supposition, those can be held to have struck at the very root of the prosecution case.

Now coming to the defense plea raised for the first time in appeal to the effect that the accident happened owing to bursting of the tyre of the scooter and P.W.5 has corroborated such defense plea, it is found from discussion in the appellate judgment that P.W.5 has testified that the scooter was being driven in speed at the time of accident. Bursting of tyre may happen only when the tube and tyre have already spent their lives or in the event of poor maintenance of the same. Mechanical failure of a vehicle contributing to cause of an accident is also a factor coming under "poor maintenance". Care and maintenance of the vehicle as a fact is within the special knowledge of the driver of the vehicle. Poor maintenance of the vehicle is itself a negligent act as it speaks of "absence of care" so far as the vehicle is concerned. Therefore, driving of such a vehicle in public road in speed oblivious of the defects, mechanical or otherwise resulted from poor maintenance is no doubt a negligent act. Mechanical failure or any other defect of a vehicle contributing to the cause of accident can not therefore, be considered in favor of the accused in such a case, in absence of proof, of course, by preponderance of probabilities to the effect that the vehicle has had been maintained with proper care. The contention raised by learned Counsel for the Petitioner on this score on the basis of alleged testimony of P.W.5, therefore, merits no consideration inasmuch as death of Pinku Rout in the present case is the direct result of rash and negligent act of the Petitioner and such act of the Petitioner is the proximate and efficient cause without the intervention of another''s negligence.

Regard being had to the detailed discussion of the evidence made by learned trial court and the Appellate Court and the reasonings given by them to believe the prosecution case with which I am one in my view, I do not find any justification to interfere with the order of conviction recorded against the Petitioner under Sections 279/304A I.P.C

Learned Counsel for the Petitioner alternatively submits that for the offence u/s 279/304A I.P.C. the imprisonment for either description or fine or both may be imposed and the occurrence in this case having happened on 03.08.1990, and 20 years having already elapsed in the mean time, no substantive sentence of imprisonment be recorded against the Petitioner and he be saddled with the sentence of fine only.

Regarding being had to the submissions of learned Counsel for the Petitioner and the fact that much time has elapsed in the mean time and no purpose will be served by sending the Petitioner to prison after 20 years, the Petitioner is sentenced to pay a fine of Rs. 1,000/- for the offence u/s 279 I.P.C. and fine of Rs. 3,000/-for the offence u/s 304A I.P.C. in default to suffer R.I. for six months. With the aforesaid modification of sentence the revision is allowed in part.