Sanjit Ghosh VsState of Tripura

Deepak Gupta, C.J.—This revision petition is directed against the judgment dated 8th June 2005, delivered by the learned Sessions Judge, Agartala, West Tripura, in Criminal Appeal No. 57(4) of 2002, whereby he dismissed the appeal filed by the petitioner herein and upheld the judgment of the learned Judicial Magistrate, 1st Class, Court No. 2, Agartala, West Tripura, dated 02.12.2002, convicting the accused petitioner for having committed offences punishable u/s. 304A and section 279 r/w section 337 of the I.P.C. and sentencing him to undergo rigorous imprisonment (RI) for a period of 6(six) months and to pay a fine of Rs. 2,000/-, in default of payment of fine to suffer further RI for 2(two) months.

The prosecution story briefly stated is that the accused Sanjit Ghosh alias Sanjay Ghosh drove Commander Jeep No. TR-01-3108 in a rash and negligent manner causing the death of one old person Jitendra Debnath and causing injuries to the other persons travelling in the vehicle.

Normally, in exercise of revisional jurisdiction this Court does not interfere in findings of fact. However, if the findings of fact are perverse or are based on no evidence whatsoever, this Court will be abdicating its judicial functions if it does not interfere. The endeavour of the Court should always be to do justice to the parties.

To prove the case against the present petitioner, the prosecution basically relies upon the statements of PWs. 5, 8, 9 and 10. The other evidence is not very relevant. PW. 5, Sunil Barman, was travelling in the jeep when the occurrence took place. He has stated that the jeep was being driven very fast but has stated that he cannot identify the driver. He has also admitted his signatures on the complaint Exbt. P/5. In the FIR the accused is shown as driver of TR-01-3108 and the name of the accused is not given.

PW. 8, Samarendra Das, is also a person who was travelling in the vehicle and has stated that the accident occurred due to the fault of the driver. He has neither identified nor named the driver. PW. 9, Dilip Ch. Barman, has also stated that the accident took place but according to him, the accident took place because the driver could not control the vehicle and hit a person who was crossing the road. He also stated that the accident occurred due to the fault of the driver but stated that he was not in a position to identify the driver. Therefore, these three witnesses, who were travelling in the jeep which met with the accident have not identified the driver nor were in a position to identify the driver.

No effort was made by the Public Prosecutor to confront these witnesses with their statements, if any, recorded u/s 161 Cr.P.C. The only reliance placed on by the prosecution is on the statement of Investigating Officer, PW. 14, who states that one Dinesh Majumder, brother of Satyendra Majumder, PW. 10, owner of the vehicle, produced the documents of the vehicle including Driving Licence of Sanjay Ghosh and that accused Sanjay Ghosh surrendered before him on 07.02.2001. Other than this evidence of surrender there is no other evidence to link the accused with the accident.

PW. 10, Satyendra Lal Majumder, owner of the vehicle, appeared in the witness box and he in cross-examination stated as follows:

"I am the owner of a commander jeep bearing No. TR-01-3108. Darogababu did not examine me in c/w this case and did not record my statement. Ld. A.P.P. submits that the witness doe not disclose the truth as per statement recorded by the I.O. and prays to declare him hostile. Prayer is allowed.

Cross by prosecution:- Attention was drawn on the statement recorded u/s. 161 of Cr.P.C. but the witness denie to make such statement. The statement is marked as Ext. P.8 subject to prove by I.O.

This is not a fact that I did not give any statement to I.O. This is not a fact that I am giving false evidence to save my driver Sanjit Ghosh.

Cross by defence: Sanjit Ghosh alias Sanjoy was my assistant. On the date of accident Sanjit did not drive the vehicle. I was driving the vehicle. At the time of accident I was the driver of the vehicle. After the accident both Sanjoy and myself flew away. Accident was occurred while I was making a turning to save one old man who was crossing the road."

Therefore, according to this owner, the accused was only an assistant and it was he (owner Satyendra Lal Majumder) who was driving the vehicle at the time when the occurrence took place. This is a statement made before Court. Neither the Public Prosecutor nor the Judge concerned took note of the said statement.

When such a statement had been made then both Public Prosecutor as well as the Judge, should have immediately taken steps to ensure that the case is registered against the owner Satyendra Lal Majumder because he had admitted before the Court on oath that he was driving the vehicle. Thereafter, investigation could have been done and the case could have been tried to find out whether he is guilty of any offence or not but obviously, in view of the statement of Satyendra Lal Majumder the present petitioner could not have been convicted.

I am constrained to observe that not only did this trial Court make the mistake but the appellate Court also has just put its seal on the judgment of the trial Court without even caring to go through the record. If the record had been carefully seen by the learned lower appellate Court it would have realized the error committed by the trial Court. Therefore, both the judgments are set aside and quashed.

In view of the statement of Satyendra Lal Majumder, the State shall continue with the investigation of the FIR after registering the FIR against Satyendra Lal Majumder who shall be arrayed as an accused and, thereafter, a case shall be filed against Satyendra Lal Majumder in the Court for the offences with which the petitioner was charged.

With these observations, the revision petition is disposed of.

Send down the LCRs, if any, forthwith.