Tapan Majumder vs State of Tripura

S.C. Das, J.—This revisional application under Section 397 read with Section 401 of Cr.P.C. is directed against judgment and order of conviction and sentence dated 15.12.2006 passed by learned Addl. Sessions Judge, West Tripura, Agartala (Court No. 2) in Criminal Appeal No. 76(4) of 2005, whereunder the learned Addl. Sessions Judge upheld the judgment and order of conviction and sentence dated 22.11.2005, passed by learned Judicial Magistrate, First Class, Agartala, West Tripura in case No. G.R. 234 of 2001. Heard learned senior counsel, Mr. A.K. Bhowmik, assisted by learned counsel, Mr. R. Dutta for the petitioner and learned Addl. P.P., Mr. R.C. Debnath for the State respondent.

Prosecution case is that on 19.03.2001 at evening time at about 1930/1945 hrs, one Abhishek Paul aged about 14 years, a student of Class DC was returning to his house riding a bicycle from the house of his private tutor through the public road running between Ker Chowmuhuni to Fire Brigade Chowmuhuni of Agartala city, namely G.T. Road and at that time a police truck vehicle, bearing registration No. TR-01-A-1156, passing through the road with high speed from Ker Chowmuhuni direction to Fire Brigade Chowmuhuni direction, knocked down Abhishek from backside and as a result Abhishek sustained severe injuries on his person and the local people of the neighbourhood immediately shifted him to IGM Hospital wherefrom he was taken to G.B. Hospital and at G.B. Hospital he was declared dead.

One Mehabub Suleman (PW 1) lodged an FIR to the police officer on the spot at about 2205 hrs. and accordingly West Agartala P.S. Case No. 66 of 2001 under Sections 279/304A of IPC was registered against the driver of offending vehicle No. TR-01-1156. In the course of investigation the offending vehicle was seized and the driver of the vehicle i.e. the accused-petitioner was arrested on his surrender by the I.O. Postmortem examination was done over the dead body and the vehicle was mechanically examined by the motor vehicle inspector. All the material witnesses from the spot as well as Havilder Major of M.T. Pool, A.D. Nagar Police Line, Agartala were examined in the course of investigation and after investigation police submitted charge sheet against accused-petitioner, Tapan Majumder, the driver of offending vehicle No. TR-01-A-1156 for commission of offence punishable under Sections 279 and 304A of IPC.

Cognizance was taken on the basis of the police report and in the course of trial accused was examined under Section 251 of Cr.P.C. to which he pleaded not guilty and claimed to be tried.

In the course of trial prosecution examined 18 (eighteen) witnesses to prove the charge. Accused was thereafter examined under Section 313 of Cr.P.C. and in his turn the accused examined himself as DW 1 and also examined two more witnesses as DW 2 and DW 3. Defence case so far ascertained from the trend of cross-examination of prosecution witnesses as well as from the statement of the accused made while examination under Section 313 of Cr.P.C. and defence evidence is that on 19.03.2001 he did not drive vehicle No. TR-01-A-1156 through the road running between Ker Chowmuhuni and Fire Brigade Chowmuhuni at the time between 7.30 pm to 7.45 pm and that he knows nothing about the accident and he has been falsely implicated in the case.

Learned Judicial Magistrate, First Class by his impugned judgment dated 22.11.2005 found the accused petitioner guilty under both the penal sections and accordingly sentenced him to suffer SI for three months and to pay a fine of Rs. 5,000/- (rupees five thousand) in default of payment of fine to suffer further SI for one month under Section 279 of IPC and again sentenced him to suffer SI for two years and to pay a fine of Rs. 1,000/- (rupees one thousand) in default of payment of fine to suffer simple imprisonment for two months under Section 304A of IPC.

The convict preferred Criminal Appeal No. 76(4) of 2005 in the Court of Sessions and the learned Addl. Sessions Judge by impugned judgment dated 15.12.2006 dismissed the appeal.

Hence this revisional application.

Learned senior counsel, Mr. Bhowmik has submitted that nobody could identify the accused-petitioner as the driver of the offending vehicle at the relevant time of the alleged accident. The material witnesses examined by the prosecution stated that another police truck vehicle bearing registration No. T.R-01-1157 was also proceeding in the same direction immediately after the accident by the alleged offending vehicle and that the subsequent vehicle was stopped by the local people and the driver of that vehicle No. TR-01-1157, namely Tapas Paul alleged to have stated the name of the accused petitioner as the driver of offending vehicle No. TR-01-A-1156 and that is the source of information about the identity of the driver so far as the evidence on record is concerned, whereas, the said Tapas Paul who is also a driver of the police vehicle has not been examined by the prosecution to substantiate the allegation that vehicle No. TR-01-A-1156 was the offending vehicle and the accused petitioner was the driver of that vehicle and hence the prosecution case is liable to be disbelieved and the accused petitioner is entitled to get an order of acquittal.

The second point argued by learned senior counsel, Mr. Bhowmik is that mere driving with high speed does not necessarily amount to rash and negligent driving. The witnesses stated that the offending vehicle was with high speed and after knocking down the boy on the road the vehicle speedily went away. Such driving with high speed unless associated with gross rashness or negligent cannot be termed as a rash or negligent driving for the purpose of offence punishable under Sections 279 and 304A of IPC and hence the accused is entitled to get benefit of doubt.

Learned Addl. P.P. on the other hand has submitted that PWs 2, 3, 6, 7 and 10 are the direct witnesses of the accident and they all are independent witnesses. Their evidence has not been shaken in any manner what they stated about the accident and based on their statement which is supported by the evidence of PW 12, the Havilder Major of M.T. Pool, A.D. Nagar, Police Line. Prosecution case is established with overwhelming evidence that the accused was driving the offending vehicle at the time of alleged accident and for his rash and negligent driving the accident had occurred and the life of a teen aged boy has been taken away.

While exercising revisional jurisdiction this Court is to see correctness, legality and propriety of the judgment/order passed by the inferior Court/Tribunal and also to see the regularity of the proceedings. The power vested in this Court under Section 397 of Cr.P.C. is not required to be exercised to upset concurrent findings of fact recorded by two Courts below on proper appreciation of evidence. It is only in those rare and exceptional cases where the appreciation of evidence is found to be wholly unsatisfactory or the conclusion drawn from the same perverse in nature, causing miscarriage of justice that the Court may correct the course of justice and undo the wrong. Perversity in the findings, illegality or irregularity in the trial that results in injustice or failure to take into consideration an important piece of evidence are some of the situations in which this Court may reappraise the evidence adduced at the trial but not otherwise.

PWs 1, 2, 3, 6, 7 and 10 are all witnesses to the occurrence. They all are independent witnesses present near the place of accident at the time when the accident had occurred. They categorically stated that a police truck vehicle bearing No. TR-01-A-1156 with high speed passed through G.T. road stretched between Ker Chowmuhuni and Fire Brigade Chowmuhuni and the vehicle causing the accident speedily went away.

An accident is an unlooked mishap or an unexpected event which is not expected or designed. It is an offence when culpable rashness or negligence is attached with accident. It occurs in a twinkling of eye and even attention of passers by and nearby people is drawn to such accident after it actually occurs. Only the person on the steering of the vehicle and the victim can exactly say as to what was the circumstance under which the accident occurred. PWs 1, 3 and 6 were in front of the shop of PW 2 by the roadside in between Ker Chowmuhuni and Fire Brigade Chowmuhuni near the house of Dulal Das/Ranjan Majumder. PW 7 is also a nearby shopkeeper of PW 2. They all noticed the offending vehicle running speedily towards Fire Brigade Chowmuhuni and hearing the cry they rushed to the spot, a little away from them and found the young boy lying with severe bleeding injury on the roadside and his bicycle and carry bag of books lying on the road. They all stated the number of the offending vehicle categorically. PW 10 is an eyewitness of the accident and he was passing through the road at that time and in front of him the accident had occurred. PW 10 stated--

"I was proceeding towards Fire service Chowmuhani. At that time a boy also was proceeding towards Fire Service Chowmuhani with a bicycle. At that time one truck of police department bearing registration No. TR. 01--1156 came from Durgachow-muhani side in excessive speed and dashed against that boy. That body received severe injuries on his person. I raised alarm to detain that truck of police department. The incident took place in a short distance of me."

This evidence of PW 10 has not been shaken in any manner. His evidence is corroborated by the evidence of PWs 1, 2, 3, 6 and 7 that the offending vehicle was TR-01-A-1156. A further fact reveals from the statements of those witnesses that the offending vehicle No. TR-01-A-1156 after committing the accident went away towards Fire Brigade/Fire Service Chowmuhuni. Behind that vehicle another police truck vehicle bearing No. TR-01-1157 was also passing through the same direction and the people who gathered at the spot of accident stopped that police vehicle and enquired with the driver of that vehicle as to who was the driver of the earlier vehicle which had caused the accident and what was the number of that vehicle. The driver of the subsequent truck vehicle, i.e. vehicle No. TR-01-1157 disclosed his name as Tapas Paul and he told the witnesses that the earlier vehicle was TR-01-A-1156 and the driver of that vehicle was Tapan Majumder, i.e. the accused petitioner. It is also in the evidence that the excited mob gathered in the spot of accident, damaged the police vehicle No. TR-01-1157. It is a fact that Tapas Paul has not been examined. No doubt, Tapas Pal was also a material witness and the prosecution would examine him. It is not correct that the witnesses could not notice the number of the offending truck vehicle and that they could learn about the number of the truck vehicle only from the statement of Tapas Paul, i.e. the driver of TR-01-1157. I cannot appreciate the submission of learned senior counsel, Mr. Bhowmik on this score since the evidence on record does not support his contention. The trial Court has made a correct observation on this submission of defence regarding non-examination of Tapas Paul. It has been observed that while prosecution has proved its case by examining the witnesses about the identity of the offending vehicle, non-examination of a particular witness who is not a witness of the accident is of no consequence. If the defence considered that witness as a material witness, defence would examine him as a defence witness and so the defence submission has no merit for consideration. I am in total agreement with the observation of the learned trial Judge since I am of the view that non-examination of Tapas Paul as a witness in this case has no bearing at all in view of the positive evidence of witnesses regarding the identity of the vehicle.

It is not disputed that on the date of accident, M.T. Pool entrusted the offending vehicle TR-01-A-1156 to the accused-petitioner, a driver of police department for driving, for the purpose of carrying CRPF personnel from one place to another place. Accused by adducing defence evidence and in his examination under Section 313 of Cr.P.C. only taken the plea that he did not drive the vehicle through Ker Chowmuhuni on that day in between 7.30 pm to 7.45 p.m. The accused placed in evidence the command certificate issued to him on 19.03.2001 for driving the vehicle and that is marked as Exbt. D2 which shows that on the date of accident the accused was driving the vehicle. In his examination under Section 313 of Cr.P.C. the accused categorically stated that on 19.03.2001 at 7.30/7.45 pm he did not drive TR-01-A-1156 through the road running between Ker Chowmuhuni and Fire Brigade Chowmuhuni. In his deposition he stated that on 19.03.2001 at 7.15/7.20 pm he went to the adjacent quarter of Madu Sudhan Majumder (DW 2) but DW 2 in his deposition stated that on 19.03.2001 the accused Tapan Majumder visited his quarter at about 7.30/7.45 pm. The accused intended to show that before the time of accident, as stated by the prosecution, he reached his quarter and he met DW 2. This evidence of DWs 1 and 2 cannot out weight the cogent prosecution evidence. DW 2 is a colleague and a next door neighbor of accused. It may happen that DW 2 made the statement to save the accused from possible punishment Further it is quiet unnatural that they could keep in mind the exact time of a particular day''s visit though they are in visiting terms frequently. Moreover, the accused did not deny that on that day he did not drive the vehicle as entrusted by M.T. Pool. PW 12, the Havildar Major of M.T. Pool in his deposition stated--

"The vehicle bearing Reg. No. TR 01 A 1156 (truck) is under the control and supervision of M.T. pool, Agartala. On that date the habildar driver Tapan Majumder was directed to drive the said vehicle and to perform duties of transporting CRPF personnel to Jirania PS from Narsingarh and after shifting CRPF personnel from Jirania to Narsingarh and thereafter to back at the M.T. pool, Agartala.

On that date that vehicle backed to M.T. pool Agartala at about 8.00 p.m. Subsequently, I came to learn that the vehicle committed an accident at Kerchowmohoni. On that date at night about 1.00 p.m. the police personnel of west Agartala P.S. seized the vehicle on preparing the seizure list. I put my signature in the seizure list. This is my signature in the seizure list marked as Exbt. P3.

Only the driver who is allotted to drive the vehicle can only drive that vehicle. No other person have excess to it.

The accused driver is present today and he is identified in the dock"

The above evidence of PW 12 has not been shaken in cross-examination.

It is an admitted position that accused-driver, Tapan Majumder was entrusted for driving the offending vehicle on that day. All the witnesses, as stated, identified the vehicle running away after the accident. Therefore, the plea of the accused that in between 7.30/7.45 pm he did not drive the vehicle through the road where the accident occurred seems to be a false stand taken by accused and that plea was taken to avoid the charge of accident.

Learned senior counsel, Mr. Bhowmik has drawn my attention to a part of cross-examination of PW 12 where he stated that he got a telephone from one woman constable that Tapas Paul committed an accident at Ker Chowmuhuni. That statement appears to be of no consequence since there is no allegation that vehicle No. TR-01-1157 met with the accident. It was simply detained by the local people being a police vehicle running through the same road in the same direction, after the offending vehicle left and that vehicle was damaged by the angry mob. Who was that woman constable who has given the telephonic information to PW 12 has not been stated. So such hearsay statement has got nothing to cast a doubt on the authenticity of the prosecution case.

All the witnesses stated that the vehicle was running with high speed and after knocking down the boy it went away speedily. Admittedly, the accident occurred on the road between Ker Chowmuhuni and Fire Brigade Chowmuhuni, a public road running within Agartala city. There are shops, houses and other establishment in both side of the road. In city area a vehicle is not expected to run with abnormal high speed without taking care of the passersby and pedestrians. It is not the case of the accused that the boy was negligently or rashly riding the bicycle and suddenly came before the truck vehicle for which the accident could not be avoided. The accused abruptly has taken a false plea that he did not drive the vehicle on that day through that road and the allegation is false. The eyewitnesses stated that the boy was knocked down from behind in the roadside. Since the boy has already died and since the driver has taken a false plea that he did not at all drive the vehicle through the road, it is very difficult to consider the plea of the accused that he did not drive the vehicle rashly or negligently.

A rash act is primarily an overhasty act and it is thus opposed to a deliberate act, but it also includes an act which, though it may be said to be deliberate, is yet done without due deliberation and caution. In rashness, the criminality lies in running the risk of doing an act with recklessness or indifference to consequences. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Negligence is the breach of duty caused by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent or reasonable man would not do.

There is a distinction between a rash act and a negligent act Even in common parlance "negligence" connotes want of proper care and the "rashness" conveys the idea of recklessness or the doing of an act without due consideration.

In the facts and circumstances of the case, the accused petitioner was driving the offending truck vehicle through the road inside the city at evening time, i.e. a pick hour of movement of pedestrians and movement of traffic. The accused though adduced defence evidence did not even utter a single word that he was driving the vehicle with all care and caution. His only plea is that he did not drive the vehicle through the particular point of road at the relevant time of accident whereas it is proved with overwhelming evidence that the offending vehicle was driven through the road and it knocked down the boy in the roadside. Since it is a public road inside the city and there are shops and establishments in both side of the road and there were pedestrians by the roadside including bicycle rider such as the deceased, the accused was supposed to be very care and cautious while driving the vehicle. It appears from the evidence that the accused was driving the vehicle speedily and after the accident went away speedily. Though mere speedy driving is not a rash driving but speedy driving inside the city while there are passersby, bicycle riders and others in the road, it definitely amounts to rash driving and the accused cannot shirk his responsibilities of rash and negligent driving at that pick hours.

Learned senior counsel, Mr. Bhowmik referred the decision of the Gauhati High Court in the case of Ranjit Nath Vs. State of Assam reported in 1997 (3) GLT 126 wherein the Single Bench of the High Court observed that in order to sustain conviction under Section 304A IPC and to impose criminal liability under Section 304A IPC, it is necessary that the death should have been the direct result of a rash or negligent act of the accused, and that act must be the proximate and efficient cause, without the intervention of the another''s negligence. It must be the causa causans it is not enough that it may have been the causa sine qua non. The main criterion for deciding, whether the driving which led to the accident was rash and negligent is not only the speed, but the with of the road, the density of the traffic and the attempt to overtake the other vehicles resulting in going to the wrong side of the road and being responsible for the accident Even if the accident took place in the twinkling of an eye, it is not difficult for eyewitness to notice a car overtaking other vehicles and going to the wrong side of the road and hitting a vehicle travelling on that side of the road. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution, must be culpable or gross and not the negligence merely based upon an error of judgment. Where a pedestrian suddenly crossed the road from west to east without taking note of the approaching bus, there is every possibility of his dashing against the bus without the driver becoming aware of his crossing, till it is too late. The bus driver may not be in a position to save the accident however slowly he may be driving.

In that reported case, the victim alighted from the bus vehicle in the roadside and thereafter was crossing the road and at that time the offending vehicle came from opposite side and the victim was knocked down. The fact of the present case is completely different to that of the fact of the reported case. Here in this case, the victim was riding a bicycle proceeding towards Fire Brigade Chowmuhuni and the vehicle speedily came from behind the victim and knocked him out. The accused did not say anything as to under what circumstance the accident had occurred and so this decision cannot help the accused petitioner.

Learned senior counsel also referred the case law of the Orissa High Court in Badri Prasad Tiwari Vs. State reported in 1994 CRI LJ 389. The fact of that case is also clearly distinguishable to that of the fact of the present case and so the ratio cannot be applied in the present case. Learned senior counsel also referred the case of Jacob Mathew Vs. State of Punjab and Another, . It is a case of criminal medical negligence and while deciding that case the Apex Court has observed in para 48(5) 48(6) thus:

"(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.

(6) The word "gross" has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be held, must be of such a high degree as to be "gross". The expression "rash or negligent act" as occurring in Section 304-A IPC has to be read as qualified by the word "grossly".

This decision cannot help the accused petitioner since the accused petitioner is found to be driving the vehicle rashly through the public road ignoring the traffic and the passersby and because of his rash and negligent driving the life of a young boy has been taken away.

In view of the discussions made above I find no merit in the appeal and the appeal therefore stands dismissed. Send back the L.C. records along with a copy of this judgment.