IN THE GAUHATI HIGH COURT(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM A - PDF document

IN THE GAUHATI HIGH COURT(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) CRIMINAL REVISION Nasir uddin,S/O Motab Ali LaskarVillSarbanandapur, PETITIONER Versus RESPONDENT P R E S E N THON’BLE MR. JUSTICE A.C. UPADHYAY This revision is directed against the judgment and order passed by the learned Sessions Judge Hailakandi in C.R. Appeal No.29 of 2 and 337 IPCand was sentenced to undergo SI for 15 days and to pay a fine of Rs.500/on each count and in default to underSI for 7 days.I have heard Mr. A.M. Barbhuiya, learned counsel appearing for the petitioner and Ms. B. Saikia, learned Addl. P.P.appearing for the State of Assam.Learned counsel appearing for the petitioner referring to the ingredients of offence under Section 279/337 IPC has submitted that even if the facts alleged by the prosecution are taken to be true, the ingredients of offence under Section 279/337 IPC havenot been made out against the petitionersincethe prosecution witness could notprove rash and negligent driving of the vehicleby the petitioner. Learned counsel for the petitioner also pointed out that the prosecution has miserably failed even to establish the complicityof the accused petitioner in the commission of offence alleged.The facts leading to the filing of this revisionapplicationmay be enumerated belowas follows On 7.3.1996, an FIR was lodged alleging therein that at about 11.30 A.M., one AmbassadorCarbearing Registration N0104 driven by Md. Nasir Uddin Laskar in a rash and negligent manner knocked downand injured Sri Aton Nayak,the younger brother of the first informant at Manipur T.E. near culvert adjacent to Jamadar Bastiwhen hewas passing by the PWD road. Asa resultof the incident, 3 Aton Nayak sustained injuries on his personbut the vehicle did not stop after knocking down the injured. The vehicle speedily left the place of occurrence. Thereafterthe injured was taken to the Katlicherra Public Health Centfor treatmentfrom where he was referred to theSilchar Medical College Hospital.The police registered a case on the basis of the FIR lodged by the brother of the victim and launched investigation and on completion of the investigation submitted charge sheet against the accused petitioneralleging commission of offence under Section 279/338 IPC. The trial ensued in which the accused was convicted and sentenced as aforesaid. As against the aforesaid order of conviction, the petitioner preferred an appeal before the learned Sessions Judge, Hailakandiwhich affirmed the convictionhowever reduced default stipulationof thesentence of finefrom 30 days to 7 days imprisonment.Learned counsel for the petitioner submitted thatthere were mainly two eyewitnesses to the prosecution casenamely2, Premji Gowala and PW4, SriMonoranjan Maji. PW2 in his evidence stated that on7.3.1996at about 11.30 A.M.he was proceeding towards Lalpani from his house by bicycle for purchasing bricks. At that timehe found one ambassador car bearing registration No.AS0104 of blue colour proceeding from Karicherra side to Lala. As soon as he arrived in front of a culvert in Jamadar Basti area, he found Atan proceeding by the road with a spade by the left side of the path towards Lalpani side whilethe alleged vehicle as mentioned above 4 knocked down. Atan Nayak fell injured and became unconscious. Then immediately he rang upto the P.S.from a nearby house.Accordingly, policetried to catch the vehicle but failed,subsequently they caught the vehiclein front of the house of one T.A. Laskar at Krishnapur.However,2 in his cross examination fairly conceded that he could not identify the accused on the spot.4, Monoranjan Maji, who was an eye witness to thoccurrence,deposed that at about 6/7 years ago one day at about 1130 A.M.whenhe was returning to his house with sand by handcart from Lalpaniwhile he arrived at Jamadhar Basti in front of culvert, he saw an ambassador car coming towards Katlicherraside and was coming at a high speed and knocked down a boy named Aton from back side. The said injured was proceeding by the sideof PWD road on grass area whenaccident took place. could notrecollect the number of the alleged vehicle.In the mean time many peoplegathered then we all carried the injured to hospital. Later on he could know that the injured was forwarded to Silchar Medical College Hospital. PWin his examination in chief as well as in his cross examination fairly stated that hecould not identifywith certainty the driver andthe vehicle in question at the relevant time. PW4 stated that neither hecould identify thevehicle nor the driver at the place of occurrence. 5 None ofthe prosecution witnessescouldestablish with all certainty that the petitioner as well as the vehicle driven by him was involved in the accident.Mr. A.M. Barbhuiyan, learned counsel for the petitioner submitted that there is no iota of evidence to prove the rash of negligence driving of the vehicle of the accused petitioner. In support of his contention, Mr. A.M. Barbhuiyan, learned counsel for thepetitioner relied on the decision of theSupreme Court reported in (2009) 7 SCC 353 (Braham Dass Vs. State of Himachal Pradesh)re theHon’ble Supreme Court observed as follows 8. Section 279 deals with rash driving or riding on a public way. A bare reading of the provision makes it clear that it must be established that the accused was driving any vehicle on a public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. Obviously the foundation in accusations under Section 279 IPC is not (sicnegligence. Similarly, in Section 304A the stress is on causing death by negligence or rashness. Therefore,for bringing in application of either Section 279 or 304A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved.In the case of2005 (2) GLT 274 (Kriti Singh Vs. State of Assam), it was observed in para 12,13 and 15 reads as follows In order to find a person guilty under Section 279 IPC prosecution is to establish that the accused was driving the vehicle in apublic way and that he was driving in a rash or negligent manner. Similarly, to constitute offence under Section 304 (A) IPC, the prosecution is to establish the rash or negligent act of the accused which was responsible in resulting 6 to death of the victim and such act of rash or negligence do not amount to culpable homicide. Thus, in order to constitute either of these two offences, the proof of rashness or negligence is essential. The term "rash" and "negligence" has not been defined in the code and boththe words are not synonymous. Rashness is an act done in the hope that no untoward consequence will ensue though the person is aware of the likehood of such consequence. On the other hand, negligence is acting with the awareness that harmful or mischievous consequences will follow. If a person does an act with utter indifference of the consequence of which he may be conscious, which he hoped may not take place, he is said to be rash. Negligence is failure to take that precaution, which a reasonable and prudent person is expected to take. Even if an act is found to be negligent, it may not be construed to mean as rash in a given case. Culpable rashness is acting with consciousness that mischievous consequences are likely to follow although the accused hoped,even though he hoped sincerely, that consequences might not follow. Criminality lies in not taking the precaution to prevent the happening of the consequences in the hope that they may not happen. On the other hand, negligence is an act done without doingsomething, which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do, or an act, which a prudent or reasonable man would not do in the circumstances attending it. The Apex Court in the case of bhalchandra Vs. State of Mahashtra, reported in AIR 1968 SC1319, approving what was said by Straight in Empress of India vs. Indu Beg, (1881) ILR 3 ALL 776 held that criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused personto have adopted. In order to convict a person under section 279 IPC the following ingredients are to be proved(a) that the accused was driving the vehicle; (b)that the accused was driving the vehicle on a public way; (c) that the accused was driving the vehicle rashly or negligently and (d) that it endangered human life or to likely to cause 7 hurt or injury to any other person. Similarly, in order to convict a person under Section 337IPC the prosecution is to prove) same act was done rashly ornegligently (b)the act endangered human life(c) hurt was caused to any person in doing such act. In the present case, the evidence of the only eyewitness to the occurrence as stated that the offending vehicle was movingvery fast and hit the deceased. There is no iota of evidence regarding rashness negligence of the driver of the truck either in the statement of the eye witness or other witnesses.Evenit is doubtful whether the accused was involved in the incident as driver. Since noneof thewitnesscould roundhead presence of the accused in the occurrence. In the light of theabove discussions, on scrutiny of the materialsand evidence on record, it is found that in theinstant case none of the prosecution witness havefailed to proverashness or negligence of the accused/petitioner in driving the offending vehicle on the fateful day. The trial court thus came to a finding different from the proved facts and illegally convicted the accused/petitioner. The learned Appellate Court also failed to consider that the prosecution has failed to prove and establish beyond reasonable doubt the vital ingredients regarding rashness or negligence of the petitioner in driving the offending vehicle andalso thusimproperlyupheld the findings of the learned trial court 8 In the case of State of Karnataka v. Satish,reported in (1998) 8 SCC 493the Apex Courtheld that 4. Merely because the truck was being driven at a “high speed” does not bespeak of either “negligence” or “rashness” by itself. ne of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by “high speed”. “High speed” is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by “high speed” in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of “rashness” or “negligence” could be drawn by invoking the maxim “res ipsa loquitur”. There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.In the result, the revision is allowed. The judgment and order passed by the learned Court below in the aforenoted caseisset aside and the accused is acquitted of the offences under Section279/337 IPC andhe is set atliberty forthwith.Send back the L.C.R. JUDGETDR 9 10 11