Rudal Yadav vs State of West Bengal

Kanchan Chakraborty, J.—This appeal is directed against the Judgment dated 18-12-2009 passed in Sessions Trial No. 378 of 2009 by the learned District and Sessions Judge, Howrah convicting the appellant, Rudal Yadav for committing offences under Sections 304A and 279 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for two years and to suffer rigorous imprisonment for one year with a direction that the sentence for both the offences would run concurrently. The appellant was also directed to pay compensation to the tune of Rs. 25,000/- to the widow of the victim within 90 days, in default, to suffer simple imprisonment for six months. On 10.07.2008, at about 10.15 hours, Madhu Sudan Patra was going towards Kona through Banaras road by riding on a bye cycle. When he reached near Eksora Samaj Sevak Samity, a lorry bearing no. WB-23/7193 knocked him down from behind without giving any horn. Madhu Sudan, as a result, was ran over by the track and died instantly. One F.I.R. was lodged with Liluah Police Station being no. 134/2008 dated 10.07.2008 against the appellant-driver of the vehicle mentioned above and a case under Sections 279/304 Indian Penal Code was started against him. In Course of investigation the offending vehicle was seized. The dead body of Madhu Sudan was sent for post mortem, inquest was done, witnesses were examined, sketch map for the place of occurrence was prepared, mechanical report of the seized vehicle was collected and finally a charge-sheet under Sections 279/304 of Indian Penal Code was filed against the appellant. Learned Sessions Judge framed charge against the appellant under Sections 279 and 304 of Indian Penal Code to which the appellant pleaded not guilty. As a result, the trial commenced. In course of trial, six witnesses were examined on behalf of the prosecution. The F.I.R., mechanical report, sketch map, inquest report, seizure list and post-mortem report were also admitted into evidence and marked exhibits on behalf of the prosecution. Upon consideration of the evidence on record, oral and documentary, the learned Court found that the accused committed offences under Sections 279 and 304A of Indian Penal Code and accordingly passed the Judgment and order of sentence which is impugned in this appeal.

Mr. Suman De, learned Counsel appearing on behalf of the appellant contended that the alleged eye-witnesses did not mention the number of the offending truck and could not identify the appellant as the driver of the same. Only the lodger of the F.I.R., i.e. P.W.-1, mentioned the number of the truck which, according to his statement was told by the police official in the police station at the time of writing down the F.I.R.. Mr. De contended that the truck was seized from Bally Toll Plaza about seven kilometers away from the place of occurrence. Neither the seized truck nor the appellant was placed before T.I. Parade for identification by any of the witnesses.

Mr. De contended further that there is no whisper in the evidence in any manner to show that the driver of the offending vehicle was driving the car in rush and negligent way knowing very well that it was endangering human life. He further contended that no question was put to the appellant in course of his examination u/s 313 Criminal Procedure Code that he was the driver of the offending vehicle. No question was also put to him for his explanation whether he was driving the vehicle in rush and negligent way so as to endanger human life and caused death of Madhu Sudan on the fateful date. He has contended further that learned Court has taken view from his personal knowledge and came to a conclusion that there was a ditch which the driver of the offending vehicle wanted to avoid and hit the bye-cycle of Madhu Sudan resulting in his death. He contended that the Judgment is neither based on evidence on record nor on any strong probability. Therefore, the same is liable to be set aside.

Mr. Pawan Kumar Gupta, learned Counsel appearing for the State respondent fairly conceded to the points raised by Mr. De. He has submitted that the offending vehicle as well as the driver of the vehicle were not identified. None could say the source wherefrom the number of the offending vehicle was collected. This apart, he contended that on a personal inspection the Trial Court found a ditch on the place of occurrence which might not be in existence when the alleged incident had taken place. Therefore, the personal opinion of the learned Trial Court should not have been the basis of recording conviction under Sections 304A and 279 of the Indian Penal Code.

I have carefully gone through the evidence on record. No doubt, on 10.07.2008 Madhu Sudan Patra died in an accident while he was riding on a bye-cycle through Banaras road. There cannot be also any doubt that a truck knocked his down. From behind and he was ran over and died instantly. The F.I.R. was written by one Kartick Patra who was examined as P.W.-1 in the Trial Court. It appears from his testimony that he did not witness the incident and that he came to the spot after hearing of the news of the accident. He came to the police station afterwards, found a truck allegedly committed the accident, number of which was WB-23/7193. He wrote the F.I.R. on the spot, according to his statement in his cross-examination but at the same time he stated that he was shown the lorry in the police station and came to know about the number of the lorry which was seized police as offending vehicle. If it is so, we find that the P.W.-1 have no scope to know the number of the offending vehicle but collected the number from the police in the police station after writing of the F.I.R. The statement in the F.I.R. regarding the number of the offending vehicle and the statement of the P.W.-1 to that effect cannot be relied on. The P.W.-2 has not seen the incident while P.W.-3 and 4 have been examined as eye-witnesses of the alleged incident. P.W.-3 and P.W.-4 have not stated anything about the vehicle, its number and the driver of the vehicle. They have not stated anything that the vehicle was being ran rush and negligently. They have not stated also that because of rush and negligent driving of the vehicle, the death of Madhu Sudan was caused.

On careful perusal of the evidence on record, oral and documentary, I find that the truck seized by police at Bally Toll Plaza situated about seven kilometers away from the place of occurrence was not identified by any of the witnesses as the truck which caused the death of Madhu Sudan. The truck was not placed in T.I. Parade for the purpose of identification. The driver of the truck was not also placed in T.I. Parade as the person who had been driving of the truck at the relevant point of time. None of the witnesses said that the driver of the truck was running the truck in rush and negligent manner endangering human life. No question was put to the appellant in course of his examination u/s 313 Criminal Procedure Code as to whether he was driving the offending vehicle or not on the relevant date and time. No question was asked to the appellant in course of his examination u/s 313 Criminal Procedure Code that because of his rush and negligent driving the death of Madhu Sudan was caused. The local people failed to say the number of the truck, identify the same and the driver. They have not stated the manner in which truck was being driven by the driver. The cycle which was dashed by the offending vehicle was not seized.

The learned Trial Court personally visited the place of occurrence and found ditch on the road near the place of occurrence. The learned Trial Court came to the conclusion that in order to avoid the ditch, the offending truck perhaps turned its side and that is why the accident had taken place. This appears to be absolutely ridiculous because the visit of the P.O. by the Trial Court was obviously long after the date of commission of the incident. It is nowhere within four corners of the record that on the particular date there was a ditch on the road where the accident had taken place. Therefore, the personal knowledge of the Court regarding drawing up sketch map of the place of occurrence by the I.O. does not appear to be helpful in coming into any conclusion.

Considering the nature of evidence recorded by the learned Trial Court and the way the conviction and sentence is recorded, I find that the judgment impugned is not at all sustainable. Accordingly, the appeal is allowed. The Judgment of conviction and sentence passed by the learned Trial Court is set aside. The appellant be set at liberty at once and be discharged from bail bond, if any. A copy of the Judgment be given to the appellant. The L.C.R. together with a copy of the Judgment be sent to the Trial Court.