Dilip Chakma VsThe State of Tripura

S. Talapatra, J.—Heard Mr. P.B. Chakma, learned counsel appearing for the petitioner as well as Mr. A. Ghosh, learned Public Prosecutor appearing for the state.

This is a petition u/s 397 read with Section 401 of the Cr.P.C. against the judgment and order dated 03.08.2006, delivered in Criminal Appeal No. 15(2)/2006 by the Addl. Sessions Judge, North Tripura, Dharmanagar, affirming the judgment of conviction and order of sentence dated 03.05.2006, delivered in G.R. No. 222/2003 by the Sub-Divisional Judicial Magistrate, Dharmanagar, North Tripura. By the said judgment dated 03.05.2006, the petitioner was convicted under Sections 279/338/304-A of the IPC and sentenced to suffer three months rigorous imprisonment u/s 279 of the IPC, one year rigorous imprisonment u/s 338 of the IPC and rigorous imprisonment for two years u/s 304-A of the IPC, with a direction that the sentences are to run concurrently.

The prosecution against the petitioner commenced when a complaint was filed by one Sukrojoy Chakma (PW. 1), disclosing that the petitioner while driving the Truck vehicle, bearing registration No. TR-01A-1902 with extreme speed and changing the track, dashed the Jeep vehicle, bearing registration No. TR-02-2990, on the right-hand side. According to PW. 1, the accident took place for rash and negligent driving of the petitioner.

On the basis of the complaint dated 01.06.2003, Pecharthal P.S. Case No. 28/2003, under Sections 279/338/427/304-A of the IPC was registered and taken up for investigation. After completion of investigation, the final police report charge sheeting the petitioner was filed and the statement of accusations punishable under Sections 279/338/304-A of the IPC, on taking cognizance thereof was read out to him u/s 251 of the Cr.P.C., when the petitioner pleaded not guilty and claimed to face the trial. The petitioner was also accused of committing the offence punishable u/s 192(1) of the Motor Vehicles Act.

To substantiate the accusations, the prosecution adduced as many as ten witnesses including the informant (PW. 1) and exhibited ten documents (Exbt. 1 to Exbt. 10).

Mr. P.B. Chakma, learned counsel appearing for the petitioner has submitted that there is no clinching evidence to hold that the petitioner was driving the vehicle with rashness and negligence. He has submitted that even though the mechanical examination report of the Truck vehicle has been admitted in the evidence, the Motor Vehicle Inspector who carried out such examination was not examined. That apart, he has submitted that on overall assessment of the evidence it cannot be deduced whether the jeep vehicle had contributed to the accident or it was the truck vehicle, which was entirely responsible for the accident under reference. Therefore, the benefit must go to the petitioner.

From the other side, Mr. A. Ghosh, learned Public Prosecutor appearing for the state has refuted such submission of Mr. Chakma, learned counsel appearing for the petitioner, contending that from a bare reading of the testimonies of the injured eye witnesses as well as of PW. 8, namely Santosh Das, owner of the vehicle, it would be apparent that the petitioner was driving the Truck vehicle bearing registration No. TR-01A-1902 on the relevant day and time of the accident and, the petitioner was driving the vehicle with rashness and negligence, causing the accident.

For purpose of appreciating the rival contentions as advanced by the learned counsel appearing for the parties, a very brief survey of the evidence may be taken recourse to.

PW. 1, Sukrojoy Chakma, who informed the incident to the police station, has stated in the trial that the truck vehicle collided with the jeep vehicle coming on to the wrong side. As a result, he and other two passengers sustained severe injuries. He has further stated that one Sneha Kr. Chakma died at the spot and the other injured passenger, namely Biju Ram Chakma succumbed to his injuries at the Kailashahar hospital. He had identified the petitioner as the driver of the vehicle. In the cross-examination, nothing could be elicited by the defence to shake the prosecution witness.

PW. 2, Babul Das has also stated in similar vein of PW. 1. He has stated that when the jeep vehicle was going towards Pecharthal from Panisagar, at that time the truck vehicle coming to the wrong side from the opposite direction, collided with the jeep vehicle and, as a result, the jeep vehicle rolled down on the left side of the road. Immediately thereafter, he and others rushed to the place of occurrence. He has also echoed that one passenger died at the spot and the other passenger succumbed to his injuries at the Kailashahar hospital.

PW. 3, Ridhu Kr. Das, who had witnessed the accident from the road-side, has stated that at the relevant time, a commander jeep had collided with a truck vehicle which was coming from the opposite direction and, as a result, the jeep vehicle had fallen on the paddy land in the left side of the road. As such, the jeep vehicle had been badly damaged and the passengers of the jeep vehicle sustained severe injuries. He has also stated that the petitioner was driving the truck vehicle at the point of time of the accident. He had identified the petitioner at the dock.

PW. 4, Balaram Chakma was also present in a nearby place, where the accident took place. He has stated that on hearing a big sound from the road-side, he came out and saw that a commander jeep had fallen on the paddy land on collision with a truck. He has further stated that the jeep vehicle was going towards Pecharthal from Panisagar, whereas the truck vehicle was coming from the Pecharthal side towards Panisagar. He has stated nothing more in support of the prosecution case.

PW. 5, Samarendra Majumder is a witness who appeared in the place of occurrence subsequently. PW. 6, Malin Chakma has stated that his brother, namely Sneha Kr. Chakma died in the motor accident. But, he did not disclose anything as regards the rashness and negligence of the accident or the identity of the driver.

PW. 7, Prasenjit Sarkar is the owner of the commander jeep bearing registration No. TR-02-2990. He has stated that one Sudhir Debnath was driving his commander jeep, which collided with the truck vehicle on the Assam-Agartala road. He has further stated that Sudhir Debnath, the driver of the commander jeep had sustained injuries in his person and, two passengers died out of that accident.

PW. 8, Santosh Das is the owner of the truck vehicle bearing registration No. TR-01A-1902. He has stated that on the relevant day and time, the petitioner was driving the truck vehicle, but he was not present at the place of accident.

PW. 9, Dr. Anindita Chakma has confirmed that one Sneha Kr. Chakma had been brought dead in the hospital and she found multiple marks of injuries on his body and out of haemorrhage he died. She had conducted the autopsy and prepared the post mortem examination report of the deceased (Exbt. 6).

PW. 10, Badal Dutta, the Investigating Officer, has stated how he conducted the investigation, caused seizure of the vehicle and after completion of investigation, he had submitted the chargesheet only against the petitioner for commission of the offence punishable under Sections 279/338/304-A of the IPC as it surfaced that for rash and negligent driving of the truck vehicle by the petitioner the accident took place

Having regard to the testimonies and the documents brought in the evidence, which were though denied by the petitioner in his examination u/s 313of the Cr.P.C., it has surfaced beyond reasonable doubt that the petitioner was driving the truck vehicle with rashness and negligence and, for such act, the accident took place causing two deaths and injuries on several persons. There is adequate evidence that the death and injuries took place due to the accident and, as such, the prosecution has succeeded in establishing the statement of accusation under Sections 279/338/304-A of the IPC.

The objection as raised by Mr. Chakma, learned counsel appearing for the petitioner that taking the mechanical report of the offending vehicle in the evidence without examining the author of the said report is not tenable inasmuch as at the time of admission of the said report, the defence did not raise any objection whatsoever. Had the defence raised any objection, definitely the trial court would not have admitted the said report, inasmuch as, the report is not covered by Section 293 of the Cr.P.C. Therefore, at this stage, the objection as raised by Mr. Chakma, learned counsel appearing for the petitioner can not considered. It appears that the petitioner is criminally liable for the accident that occurred for driving the vehicle with rashness and negligence. As such, the finding of conviction as returned by the trial court and affirmed by the appellant court does not warrant to be interfered with. Accordingly, the finding of conviction stands affirmed by this court.

On scrutiny of the records it does appear that the petitioner was very young at the time of accident and, that aspect of the matter was not considered by the courts below at the time of passing the sentences. Though this court is not inclined to grant the benefit of Section 4 of the Probation of Offenders Act, 1958 to the petitioner, inasmuch as, it has surfaced from the record that he was driving the vehicle irresponsibly, causing two deaths and injuries on several persons, but the sentence of two years u/s 304-A of the IPC in the context of the residual doubt, warrants to be interfered with. Accordingly, the sentence u/s 304-A of the IPC is reduced to rigorous imprisonment for 1(one) year. Similarly, the sentence u/s 338 of the IPC is reduced to rigorous imprisonment for 6(six) months. However, the sentence awarded u/s 279 of the IPC by the trial court stands affirmed. Needless to say, the sentences are to run concurrently.

With this modification in the sentence, this petition stands dismissed. The petitioner shall surrender before the trial court for undergoing the sentence within a month from today.

Send down the LCRs forthwith.