Nayan Daimari vs State Of Assam

Heard Mr. S. Sahu, learned counsel for the petitioner accused and Mr. R.J. Boruah, learned Addl. Public Prosecutor appearing for the

State/respondent.

This criminal revision under Section 397 read with Section 401 Cr.P.C. is preferred against the judgment and order, dated 25.02.2011, passed by the

learned Addl. Sessions Judge, F.T.C., Sonitpur at Tezpur in Crl. Appeal No. 42 (S-4) 2007 affirming the judgment and order of conviction and

sentence under Sections 279/338/304A of the IPC passed by the leanred Chief Judicial Magisrate, Sonitpur at Tezpur in G.R. Case No. 689/1995

against the petitioner accused.

The prosecution case as unfolded in the F.I.R. is that on 12.05.1995 at about 12.30 noon, while one Sanjib Kumar Bora was coming by a 407 mini

bus, bearing registration No. AS 12-3520 to appear in an examination, the said mini bus dashed against a roadside lamp post near the gate of Mission

Hospital, Tezpur due to rash and negligent driving. As a result, some of the passengers including said Sanjib Kumar Bora sustained grievous injuries

and among those injured, one Kamal Bora succumbed to his injuries. All the injured persons were immediately moved to the Kanaklata Civil Hospital,

Tezpur for treatment.

Based on the above F.I.R., Kacharigaon Police Outpost G.D.E. No. 201, dated 12.05.1995, was made and on being forwarded registered as Tezpur

P.S. Case No. 325/95 under Sections 279/338/304A of the IPC, dated 13.05.1995. After completion of investigation, the police laid a charge-sheet

under Sections 279/337/338/304A of the IPC against the petitioner. The trial Court of learned Judicial Magistrate, Tezpur explained the offences under

Sections 279/338/304A of the IPC to the petitioner. The petitioner pleaded innocent vide, order, dated 22.04.1996, passed in G.R. Case No. 689/95.

After completion of trial, the Court of learned Chief Judicial Magistrate, Sonitpur at Tezpur by the impugned judgment and order, dated 15.10.2007,

passed in the said case convicted and sentenced the petitioner to suffer rigorous imprisonment for 1(one) month under Section 279 of the IPC and to

undergo rigorous imprisonment for 2(two) months under Section 338 of the IPC and further, to undergo rigorous imprisonment for 4(four) months and

to pay fine of Rs. 500/- (five hundred) only, in default to undergo simple imprisonment for 15 (fifteen) days under Section 304A of the IPC. The

petitioner preferred an appeal against the aforesaid judgment and order of conviction to the Court of learned Sessions Judge, Sonitpur at Tezpur vide

Crl. Appeal No. 42 (S-4) 2007, which was dismissed by the learned Addl. Sessions Judge, F.T.C., Sonitpur, Tezpur vide the impugned judgment and

order, dated 25.02.2011.

Mr. S. Sahu, learned counsel for the accused petitioner, contends that in the case, the petitioner took the plea that he was neither the driver of the

mini bus nor he was driving the bus at the relevant time, as the prosecution adduced no evidence establishing his identity as driver of the said bus

beyond doubt. Mr. Sahu further contends that had the owner of the said vehicle examined in the case, the matter would have come to light as all the

prosecution witnesses examined in the case failed to identify him as the driver of the said vehicle at the relevant time. It is argued that in the belated

by filed F.I.R., the name of the petitioner as driver of the vehicle did not appear if at all he was recognized to be the driver of the vehicle and not even

the G.D. Entry was proved in the case.

Mr. R.J. Boruah, learned Addl. Public Prosecutor, argues that if one looks at the evidence of P.W.-3 Hari Kanta Das, P.W.-4 Simanta Nath and

P.W-5 Sanjib Kumar Bora, it will be amply clear that he was the petitioner only, who drove the mini bus at the relevant time of the accident and the

evidence on record, as a whole, shows beyond doubt that due to rash and negligent driving of the bus by the petitioner, the accident occurred leading

to death of the deceased and injury to several persons. Mr. Boruah, therefore, vehemently submits that no interference is called for in the impugned

judgments and orders.

I have given due consideration to the above arguments of the learned counsel of both sides and perused the evidence on records including the

impugned judgments and orders.

With regard to the identity of the petitioner as the driver of the mini bus involved in the accident, it is noticed that P.W.-1 Hiren Nath, whose bicycle

was hit by the said 407 mini bus and P.W.-2 Kanak Keot, who was a passenger in the said mini bus, deposed that the said bus stopped after dashing

against a roadside lamp post, but could not identify the person who was driving the vehicle at the relevant time of the accident. P.W.-3 Hari Kanta

Das, who corroborated the fact of accident narrated by P.Ws 1 and 2, identified the petitioner as the driver of the bus, but P.W.-10, the I.O., SI Nitai

Chand Singh stated in cross-examination that he (P.W-3), in his statement under Section 161 Cr.P.C. did not state this fact. P.W.-4 Simanta Nath,

who was travelling by the said mini bus at the relevant time, could not say who was its driver. P.W-5 Ratneswar Bora, who did not witness the

accident, stated in cross-examination that he did not know who was driving the vehicle. Coming to the evidence of P.W-6 Sanjib Kumar Borah, who

was also travelling by the said 407 mini bus to Tezpur, specifically stated in his examination-in-chief that the accused appellant was driving the bus.

The defence appears to have not disputed this piece of material part of his evidence and therefore, remained unshaken and intact in cross-

examination. On careful scrutiny of the aforesaid evidence of the P.Ws, who were witnesses to the accident, it transpires that the P.Ws 3 and 6 have

identified the accused petitioner as the driver of the said mini bus at the relevant time of the accident.

Now, coming to the second issue of alleged rash and negligent driving of the mini bus by the accused petitioner, three facts are needed to be proved

beyond doubt viz. (a) rash and negligent driving or riding on a public way and secondly, that the act must be such as to endanger human life or likely to

cause hurt or injury to any person. Here, it has to be kept in mind that negligence signifies an omission to do something, which a reasonable person

guided upon those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent or reasonable

person would not do. Rashness or negligence must be more than error of judgment. To speak in short, negligence connotes want of proper care, while

rashness conveys the presumption of reckless doing of an act without consideration of any consequence.

In the light of the above statutory requirements of the facts to be proved, let us appreciate the evidence led by the prosecution in the case. The

F.I.R. as stated above discloses that the accident took place, on 12.05.1995 at about 12.30 noon in front of the Mission Hospital Gate, Tezpur due to

driving at a high speed of a 407 mini bus, which eventually hit against a roadside lamp post. It is noticed from the evidence of P.W.-10 SI Nitai Chand

Singh, the Investigating Officer, that he launched the investigation based on G.D.E. No. 192, dated 12.05.1995, and the record shows that no sketch

map of the place of accident was exhibited entailing this Court’s inability to ascertain the situation, in which the accident occurred with reference

to the prosecution allegation of rash and negligent driving of the mini bus by the petitioner at the relevant time. On scrutiny of the evidence of the

prosecution witnesses, it is revealed that they, as a whole, attributed the accident to driving of the mini bus at a high speed. At this stage, it needs to be

stated that to hold the accused guilty of the offences either under Section 279 or Section 338 or 304A of the IPC, the proof of rashness or negligence

which is of such nature as to endanger human life or safety of others, is essential. Therefore, mere evidence that the accused petitioner was driving

the mini bus at a high speed is not sufficient evidence to hold him guilty, in absence of evidence of situation in which such high speed was apparently

unwarranted. As required under the aforesaid penal provisions, the rash and negligent driving of the said mini bus so as to endanger human life or hurt

being not proved by the prosecution beyond all reasonable doubt, based on the evidence of P.W.-7 Ranjit Singh, MVI, Tezpur, who testified the

accidented vehicle, P.W.-8 Dr. Mrinali Das, the doctor, who examined the injured persons namely, Kamala Kanta Das (not examined), Hari Kanta

Das (P.W.-3), Apurba Hazarika (not examined) and Sanjib Kumar Bora (P.W.-6) and further, P.W.-9 Dr. Dibakar Saikia, the autopsy surgeon, who

performed the post-mortem examination on the deceased Kamal Bora, it cannot safely and conclusively be said that the injuries of the injured persons

and death of the said person were caused due to the sole reason of rash and negligent driving of the said mini bus by the accused petitioner beyond

doubt.

For the reasons, set forth above, the revision stands allowed setting aside the impugned judgments and orders of the learned Courts below.

Accordingly, the accused petitioner is acquitted of the charges, mentioned above, and set him at liberty.

Send back the LCR.

This disposes off the revision.