AI Structured Summary
Not yet generated for this judgment
Judgment
1.Heard Mr. HRA Choudhury, learned Senior counsel for the revision petitioner and Ms. S. Jahan, learned Addl. Public Prosecutor for the State.
This revision is directed against the judgment and order dated 27/10/2009 passed by the learned Addl. Sessions Judge (FTC), Karimganj in Crl.
Appeal No. 14 (3)/2009. By the said judgment, learned Addl. Sessions Judge upholding the judgment of conviction rendered by the Chief Judicial
Magistrate, Karimganj in GR Case No. 878/2001, sentenced the petitioner to imprisonment for six months u/s 304- A IPC and fine of Rs. 1,000/- with
default stipulation and imprisonment for one month u/s 279 IPC.
As per prosecution case, on 05/09/2001 when the deceased Mohibur Rahman was proceeding to his field through the national high way, at that time
the scooter driven by the present petitioner hit him and consequently, he sustained injury and died instantaneously. The son of the victim lodged the
FIR (Ext.-1), on the basis of which, police registered a case and after usual investigation submitted charge-sheet u/s 279/304-A IPC and eventually
stood trial for the said offence.
In course of trial, 10 witnesses were examined including the doctor and investigating officer. On appreciation of evidence, learned trial court
convicted the petitioner u/s 304-A/379 IPC and awarded sentence of imprisonment for two years u/s 304 A IPC with fine and imprisonment for a
period of one month u/s 279 IPC.
Aggrieved, the petitioner preferred an appeal and the learned Addl. Sessions Judge allowing the appeal partly, reduced the sentence of
imprisonment u/s 304-A IPC from two years to 6 months.
Aggrieved by the appellate judgment, the petitioner preferred the instant appeal.
Learned Senior Counsel, Mr. HRA Choudhury submits that the entire prosecution case hinges on the testimony of PW 6, who was projected as eye
witness, but during cross examination, he admitted to have arrived the place of occurrence after the death of the victim. There is no iota of evidence
to establish the basic ingredients, i.e, rash and negligent driving for holding the accused guilty u/s 304-A/279 IPC, and as such, the impugned judgment
of conviction and sentence of the petitioner in absence of such evidence is not sustainable, submits Mr. Choudhury.
I have perused the evidence of the witnesses. Apparently, except the PW 6, all other non-official witnesses arrived at the place of occurrence later
on.
PW 6 claimed to have seen the occurrence from a little distance and immediately he arrived there, but in his cross-examination he stated, that
before he reached the plaice of occurrence, he saw 4/5 persons already assembling there. He also stated that the victim died before he reached the
place of occurrence. It is in his evidence that the scooter which was involved in the instant case was driven in high speed. Driving vehicle on a
National Highway in high speed itself is not sufficient to attribute rashness or negligence to the rider of the vehicle. Apparently, the occurrence took
place on the National Highway. Besides, the evidence of PW 6 that he noticed the scooter moving in a high speed, there was absolutely no evidence
as to the rash and negligent driving by the petitioner. In order to prove a charge u/s 279 IPC prosecution needs to establish the following essential
ingredients.
Rash and negligent driving.
Riding on a public way.
Rash or negligent driving as to endanger human life.
For proving a charge u/s 304-A also prosecution has to prove that the death was caused due to rash and negligent act of the accused. In a criminal
case, unless each and every ingredient of offence is proved beyond reasonable doubt, the accused cannot be convicted on mere surmise and
conjectures. No doubt, in the case of the present nature, always there may not be direct evidence of rash and negligent driving and the same may be
inferred from the attending facts and circumstances of the case. But unfortunately in this case no such evidence was brought on record in order to
establish any circumstance/circumstances, wherefrom the negligence or rashness on the part of the accused could be discerned.
Though in an action for tort, the doctrine of ipse res loquitor can be invoked, but in a criminal case such doctrine cannot be invoked to convict a
person for a criminal offence, reason being that, one cannot be convicted unless his guilt is proved beyond all reasonable doubt. The learned courts
below, while convicting the accused petitioner u/s 279/304-A IPC, for causing death of the victim by rash and negligent driving, failed to appreciate
that there was absolutely no evidence, direct or circumstantial to establish the ingredients of a criminal offence u/s 279 or 304 A IPC. In absence of
such evidence of rash and negligent driving by the accused, he could not be convicted for criminal offence u/s 279/304-A IPC. When the evidence of
rash and negligent driving was absent, the impugned judgment convicting the accused petitioner cannot be sustained and deserves to be set aside. The
impugned judgment of conviction and sentence of the petitioner is accordingly set aside and the revision stands allowed.
Bail bond if any stands discharged.
Send back the LCR.