Maharam Ali vs The State of Tripura

S. Talapatra, J.—1. Heard Mr. A. Sengupta, learned counsel appearing for the petitioner as well as Mr. A. Ghosh, learned P.P. appearing for the State.

By means of this petition filed under Section 397 read with read with Section 401 of the Cr.P.C., the legality of the judgment dated 22.11.2013 delivered in Criminal Appeal No. 28(3) of 2013 by the Sessions Judge, South Tripura, Udaipur, now Gomati Judicial District has been called in question. By the said judgment dated 22.11.2013, hereinafter referred to as the impugned judgment, the judgment dated 22.06.2013 as returned by the Chief Judicial Magistrate, South Tripura, Udaipur, hereinafter referred to as the trial court, in case No. GR 50 of 2011 has been upheld with some modification in the order of sentence. The trial court convicted the petitioner under Sections 279/337 of the I.P.C. and sentenced him to suffer rigorous imprisonment for 2 (two) months with a fine of Rs. 1,000/- (Rupees One thousand) for commission of the offence punishable under Section 279 of the I.P.C, in default of payment of fine, to suffer further rigorous imprisonment for a period of 15 (fifteen) days. The petitioner was further sentenced to suffer rigorous imprisonment for a period of 2 (two) months and to pay a fine of Rs. 500/- (Rupees Five hundred) for the offence punishable under Section 337 of the I.P.C and in default of payment of fine, to suffer further rigorous imprisonment for a period of 7 (seven) days. It was directed that the sentences shall run concurrently.

By the impugned judgment, the appellate court has modified the sentence as under:

"In view of the above findings and decision arrived at on the discussion of both the parties, the instant appeal is dismissed with the modification of order of sentence that the convict-appellant Maharam Ali is to suffer 2 months RI and to pay fine of Rs. 1,000/- for commission of offence under Section 279 of IPC, in default of payment of fine he is to undergo SI for 15 days. Convict-appellant also sentenced to suffer RI for 2 months and to pay a fine of Rs. 500/- for committing offence punishable under Section 337 of the IPC, in default of payment of fine he is to undergo SI for 7 days. Both the sentences shall run concurrently."

The genesis of the prosecution is rooted in the written ejahar (Exbt.1/1) filed by one Mantu Das disclosing that on 12.12.2010 when he was returning to his place after attending a marriage ceremony at Agartala by boarding a vehicle bearing registration No. TR-03-A-2193, at about 2.30 midnight, the said vehicle met with an accident at a place nearby the Animal Husbandry, Bagma. According to the informant, the said accident occurred for rash and speedy driving of the vehicle. As a result, the informant and other passengers received serious injuries. As the informant was engaged in medical treatment, the ejahar was filed on 30.01.2011, after more than one and half months. Based on the said written ejahar, the R.K. Pur P.S. case No. 36 of 2010 was registered and taken up for investigation. The final police report chargesheeting the petitioner was filed and in the due course of time, the substance of the accusation was stated to the petitioner under Section 251 of the Cr.P.C. which he denied and claimed to face the trial.

In order to substantiate the substance of accusation, the prosecution adduced as many as 9 (nine) witnesses including the victim (PW-1), the medical officer (PW-6) who examined the injured persons and the investigating officer (PW-9). Thereafter, the petitioner was examined under Section 313 of the Cr.P.C. where he repeated his plea of innocence. But by the judgment dated 22.06.2013 delivered in GR case No. 50 of 2013, the Chief Judicial Magistrate, South Tripura, Udaipur, now Gomati Judicial District, convicted the petitioner and he was accordingly sentenced.

Being aggrieved by that judgment, the petitioner filed an appeal under Section 374(3) of the Cr.P.C. in the court of the Sessions Judge, South Tripura, Udaipur. The said appeal being Criminal Appeal No. 28(3) of 2013 was dismissed by the judgment and order dated 22.11.2013 with modification in the sentences as indicated above.

Mr. A. Sengupta, learned counsel appearing for the petitioner has submitted that there is no finding in the judgments of the trial court as well as of the appellate court in respect of the petitioner''s rash and negligent driving and as such, very foundation of the conviction is conspicuous by absence and hence, this Court should interfere the impugned judgment of conviction on acquitting the petitioner from the substance of accusation as brought under Sections 279/337 of the I.P.C. The appellate court has observed that:

"PW-3 Shri Sanjay Deb is also an eye witness of the accident. He stated that the vehicle fell down to a ditch after hitting a standing tree by the side of road. He suffered injuries in the leg. This witness only identified the accused by face in the dock and that identification was not denied in the cross-examination."

That was the only piece of evidence about the identification of the driver who has been driving the vehicle at the relevant point of time. The documents like the driving license were produced before the court.

From the other side, Mr. A. Ghosh, learned P.P. appearing for the state in his usual fairness has submitted that except the evidence, meaning the oral statement of PW-3 and the identification of the petitioner at the dock for the first time as the driver of the vehicle that met the accident, there is no evidence about the identification of the driver. Other passengers who suffered injuries could not identify the driver either by name or by face. However, Mr. Ghosh, learned P.P. has submitted that whether there is a finding or not, but there is abundance of the evidence as to the rash and negligent driving and bodily injuries suffered by the passengers inasmuch as the injury reports and the oral testimonies are enough to establish that aspect of the matter. When it is implicit in the evidence, mere absence of finding as to the rash and negligent driving cannot make the conviction unsustainable. It is only a question of inference, if not recorded, it can also be recorded at this stage also. From reading of the judgments, it would be apparent that it was inferred by the passengers that there was rash and negligent driving of the vehicle.

From the rival contentions what has emerged is that there is abundance of the evidence as to the rash and negligent driving of the vehicle. Despite the driver was requested not to drive the vehicle in such a high speed at the mid of night but he did not give any heed. The medical evidence of their injuries in addition to their oral testimonies before the court unfolds the bodily injuries. But the question of identification has turned out to be a serious issue in this case. After scrutinizing the records, this Court finds that the statement of Mr. Ghosh, learned P.P is absolutely correct that except PW-3, nobody has taken any initiative to identify the driver of the vehicle or to identify the petitioner as the driver of the vehicle. Beyond that there is no other evidence. As such in this regards, the identification is material and for purpose of identification it goes without saying that the statement of the investigating officer is of no value at all because he was not present at that point of time inasmuch as the FIR was lodged almost after one and half months.

This Court, without netting in the other aspects of the matter, has come to the conclusion that if it is found that the identification at the dock is not sustainable then the conviction cannot be sustained. Except the statement of PW-3 as recorded by the trial court, there is no other evidence. But what is most striking is that on scrutiny of his statement, it appears that the finding of the appellate court is not correct that PW-3 was not cross-examined on the aspect of identification of the driver. In the cross examination, PW-3 has stated categorically as under:

"It is not a fact Maharam Ali was not the driver of TR-03-A-2193 and the vehicle never met with any accident with any such accident."

The owner of the vehicle bearing registration No. TR-03-A-2193 was not produced before the trial nor there had been any initiative from the investigating officer to ascertain who the owner of the vehicle was. Even though he had seized the driving license of the petitioner in the course of his investigation. The driving license does not link the petitioner with an accident unless it is established by evidence that he at the relevant point of time was driving the vehicle rashly and negligently. It is no more res-integra that fleeting sight of a person, who was driving the vehicle, can hardly be remembered by someone almost after three years from the date of occurrence. Even if someone can recollect and identify the person at the dock for the first time that piece of evidence cannot safely be relied for purpose of returning the finding of conviction.

Having held so, this Court is of the considered opinion that the impugned judgment and order is liable to be interfered with and accordingly, the same is set aside and quashed. As consequence thereof, the petitioner is acquitted from the accusation under Sections 279/337 of the IPC on benefit of doubt.

In the result, this petition stands allowed.

The sureties are discharged from their obligation.

Send down the LCRs.