PUTUL DAS vs STATE OF ASSAM

1.Heard Mr. S.K. Goswami, learned counsel for the petitioner and Ms. S. Jahan, learned Addl. P.P., Assam for the State/respondent No. 1.

This revision petition is directed against the judgment and order dated 20.03.2017 passed by the learned Additional Sessions Judge, Biswanath

Chariali, in Crl.A. No. 1(S-1)/2016. By the said judgment, the appellate court dismissed the appeal, upholding the judgment and order of the learned

Trial Court in GR Case No. 577/2014, whereby the petitioner was convicted under Section 279/427 IPC and sentenced to pay fine of Rs. 500/- under

Section 279 IPC and Rs. 3000/- under Section 427 IPC with default stipulation.

As per prosecution case, on 26.07.2014, the petitioner, who was driving a motorcycle intentionally hit the car of the informant and left the place.

The informant chased him and after moving one kilometer, he could intercept the accused, who rebuked him with slang language and also threatened

him with dire consequence. An FIR was lodged by the informant Dhan Bora, on the basis of which, police registered a case and after usual

investigation, submitted charge sheet against the present petitioner under Section 279/427/294/506 IPC.

On the basis of the said charge, learned Sub-Divisional Judicial Majistrate, Biswanath Chariali took cognizance and upon appearance of the accused

petitioner, particulars of offence were explained, to which he pleaded not guilty.

In course of trial, prosecution examined 7 witnesses including the Investigating Officer and on appreciation of evidence, learned Trial Court

convicted the petitioner under Section 279/427 IPC. Aggrieved by the said judgment of conviction and sentence, the petitioner preferred an appeal

before the learned Sessions Judge, which was made over to the learned Additional Sessions Judge for disposal and learned Additional Sessions Judge

by the impugned judgment dismissed the appeal and upheld the conviction and sentence.

Aggrieved by the judgment and order of the learned Additional Sessions Judge, the petitioner preferred the instant appeal.

Learned counsel for the petitioner submits that there was absolutely no evidence to establish any charge under Section 279 or 427 IPC and as such,

the impugned judgment of conviction and sentence deserves to be set aside.

PW-1, the informant stated that at about 4 O’clock, when he just stopped his vehicle (Maruty Alto Car) at Bank Tiniali center, the accused,

who came from the opposite direction hit his car and left the place and as a result of hitting the car by the petitioner, the front bumper of his car was

broken. PW-2, who also claimed to be an eye witness stated that after parking the vehicle at the Tiniali center, when PW-1 came to his shop for

having betel-nut, the petitioner came in a motorcycle and hit the car of the informant and left the place. PW-3 stated that after parking the car, when

the informant came to take a recharge, the petitioner came from opposite direction and hit the door of the car. PW-4 and PW-6 stated that they have

seen that the accused petitioner and the informant and quarreling. They have not stated about accused petitioner hitting the vehicle of the informant.

PW-5 pleaded ignorance of the occurrence. According to him, he heard later on that some altercation took place between the petitioner and the

informant.

A dispassionate scrutiny of the oral testimony of the witnesses transpires that according to PW-1, the informant, as soon as he stopped the vehicle

at Tiniali, the accused hit his vehicle and left the place and he chased him. Whereas, according to PW-2, the petitioner hit the vehicle when the

informant after parking the vehicle came to his shop for taking betel-nut. PW-3 has also given a different version stating that after parking the vehicle

when the PW-1 came to take a recharge, the petitioner hit his vehicle on the door.

What is apparent from the testimony of these three witnesses is that all the three witnesses stood contradicted as to the nature of occurrence.

According to PW-1, the accused hit the front side bumper of his car. According to PW-3, the accused petitioner hit the door of the car. Again PW-1

stated that occurrence took place when he was still in the vehicle and just stopped the vehicle, whereas, PW-2 and PW-3 had given a different

versions. According to PW-2 after parking the vehicle when he came to take betel-nut, the occurrence took place, whereas, according to PW-3, the

occurrence took place when he came to take a recharge, PW-4 & PW-6 have not stated anything about the accused petitioner hitting the vehicle of

the informant by his motorbike. Therefore, the contradictory and mutually destructive evidence of the vital witness creates doubt about the veracity of

the prosecution case that the accused/petitioner hit the vehicle of PW-1, by his motorbike.

In order to establish a charge under Section 279 IPC, prosecution needs to prove that the accused was driving the vehicle in a rash and negligent

manner and rashness and negligence was of such, so as to endanger human life. Apparently, the testimony of the prosecution witness to the effect

that the accused petitioner hit the vehicle itself has not been proved beyond reasonable doubt because of the self contradictory and mutually

destructive evidence of the prosecution witnesses. No evidence has been brought on record to attribute rash and negligent driving to the accused

petitioner. In absence of evidence of rash and negligent driving, even if it is assumed for the sake of argument, that the motorcycle of the accused hit

the vehicle of the informant, that itself, was not sufficient to constitute a criminal offence under Section 279 IPC.

In order to prove a charge under Section 427 IPC, prosecution needs to establish that (1) accused committed mischief and (2) such mischief

caused loss or damage amounting to not less than Rs. 50/-. The prosecution also needs to establish that accused had the intention to cause or

knowledge that his conduct is likely to cause wrongful loss or damage to the public or any person. Therefore, mischief caused by accident or by

rashness and negligent act, by itself shall not constitute an offence under Section 427 IPC in absence of requisite intention. No evidence was brought

on record to show that there was mischief or damage to the amount of Rs. 50/- or upward. Mere causing any damage/mischief of trivial nature does

not constitute any offence. In order to constitute an offence under Section 427 IPC, prosecution needs to prove that the accused committed the

mischief and such mischief caused loss or damage amounting to not less than Rs. 50/-. The evidence brought on record shows that the ingredient of

offence under Section 427 IPC was totally absent in the instant case and as such, conviction of the accused petitioner under Section 427 IPC was also

apparently illegal and improper, inasmuch as, the ingredient of offence under Section 427 IPC was totally absent.

What the evidence and materials brought on record crystallizes is that the prosecution has not been able to establish the commission of offence

either under Section 279 or 427 IPC beyond reasonable doubt and as such, conviction and sentence of the accused petitioner cannot be sustained.

Accordingly the impugned judgment is set aside and the revision stands allowed. Bail bond, if any stands discharged.

Send down the LCR.