Shah Istarul Haque vs State Of West Bengal

Chaitali Chatterjee Das, J

This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure,1973 against an order dated 30.3.2006 passed by the Learned Additional Sessions Judge, Fast Track Court ,Bankura in Criminal Appeal No. 15 of 2005 affirming thereby the judgement and order dated 08.04.2005 passed by Learned Chief Judicial Magistrate, Bankura in Trial no. 605 of 2004 whereby the Learned Magistrate was pleased to convict the petitioner for committing offence punishable under Section 279/304-A of the Indian Penal Code and sentencing him to suffer imprisonment for six months and to pay a fine of Rs. 500/-.

The case of the appellant is that the allegations levelled against him  by virtue of the written complaint lodged by the P.W.1 Mathur Chandea Misra before the Officer-in-Charge of Bankura Police Station to the effect that on 04.06.2002 at about 10-40 hours two cousin brothers of the de-facto complainant namely Ramjiban Mishra and Soumen Mishra while returning after performing Puja in village Agaya through the Bankura Durgapur Road riding bicycle, at that point of time one Bus, coming towards Bankura from Durgapur and another Bus bearing registration No. W.B.-67/1814 was also coming from Durgapur side which was behind the first Bus suddenly tried to overtake as a result of overtaking of the bus the bus in front of the said Bus landed on the Kutcha road below the metal road and dashed the cycle in which the two brothers of de-facto complainant were travelling. On account of such accident Ramjiban Mishra and Soumen Mishra aged about 22 years and 16 years respectively sustained grievous injuries and subsequently Ramjiban Mishra succumbed to such injuries when Soumen Mishra died in the hospital later. On the basis of the said complaint the Bankura P.S. GR case no 277 of 2002 started and after investigation the charge sheet was submitted under Section 279/304-A IPC.

The prosecution in order to bring home the charges adduced as many as 9 witnesses including the investigating officer. After assessing the evidences and the medical paper as well as the mechanical report of the two vehicles and the evidences adduced by the eye witness that is P.W.1, the Learned Chief Judicial Magistrate, Bankura passed the order of conviction whereby the present appellant was found guilty for the offence punishable under Section 279/304-A IPC. Challenging the same the criminal appeal was filed and the Learned Fast Track Court , Bankura considering the judgement of the Learned Court of CJM and after scrutinising the evidence and the report of the mechanical expert that the accident took place for reasons other than mechanical defect and further considering the statement given by the accused during his examination under Section 313 Cr.Pc affirmed the said judgement and order of conviction against which this revisional application has been filed.

The main thrust of the argument advanced by the Learned Advocate is on the issue that in order to prove the negligence attributed by the appellant, there must be a case of rash and negligent driving of the vehicle by the appellant which were absolutely missing. Furthermore there are absolutely no materials to frame the charge under section 304-A of I.P.C and no intention can be found from the evidences adduced by the prosecution witness to commit any offence. Furthermore the I.O never tried to ascertain as to whether this Appellant was the driver of the said offending vehicle or not and also not examined the owner of the Bus. The eye witness as claimed by the P.W 1 did not see the driver who fled away. It was further argued that most of the witnesses did not support the prosecution case and P.W. 1 himself said the buses were not plying rashly.

It is further argued that both the Learned Court failed to consider this aspect and considering the evidence of the eye witness and the medical paper and also considering the statement of the accused as admission about the accident arrived at a conclusion that it was an act of rash and negligent driving on the pare of the accused as it is not the law of the land that a vehicle overtake another vehicle ahead of its through left side and thereby passed the order of conviction which is not correct. Accordingly prays for setting aside the judgement and order of conviction passed by the learned appellate court affirming the judgement and order of conviction passed by the learned court of CJM, Bankura.

The Learned advocate on behalf of the prosecution in order to buttress the rival contention took the point of gross negligence on the part of the appellant who tried to overtake and at whose instance the incident occurred. Furthermore the prosecution has proved the charges by adducing prosecution witnesses including the eye witness who deposed the manner in which the accident took place as a result two innocent persons including one minor had to succumb to the injuries and therefore both the Learned Trial Court as well as Appellate Court were right in arriving at such decision .Hence prayed for dismissal of this appeal.

Having heard both the Learned counsel and after careful perusal of the materials on record and the judgment of both the trial as well as the appellate Court this Court is to consider only as to whether there was any irregularity or illegality in the order passed by the Learned Appellate Court. It is well settled that the High Court will ordinarily not interfere in revision except in exceptional cases wherein interest of public justice requires interference for the correction.

In this case the P.W.1 Mathur Chandra Mishra adduced evidence and in his cross examination said he witnessed the accident. He deposed that the bus ahead did not give side to the offending bus despite horns and the bus ahead was driving slowly while giving side to the truck and at that time the bus compelled to go on the kuccha road. Admittedly, in the written complaint the above facts were not mentioned, but it is not necessary that every minute details are to be mentioned in the written complaint. The P.W.2 reached at the P.O. after the accident and saw Ramjiban lying dead at the spot and Soumen with severe injuries and the cycle was severely damaged and then the police came and sent Soumen for treatment where he died at the hospital. He also said that he did not witness the accident but he signed on the seizure list whereby the papers of the bus were seized. P.W.3 did not say anything and is of no use to support the case of the prosecution .P.W. 4 deposed as the mechanical expert of the vehicle. P.W 5, 7, 8 9 are all police personnel including the investigating officer, and P.W 6 is the Autopsy surgeon. In the examination under Section 313 the accused himself said that both the cyclist came through the wrong side and dashed the bus on the backside as a result the accident took place but the defence never tried to build up this version by way of giving any cogent evidence .

In order to prove the charges under Section 279/304 A IPC the essential elements are rashness and negligence in driving and from the cross examination apparently no case of rash driving could be seen but a case of overtaking by the bus which was behind the bus is well established. It is also established that the appellant was driving the vehicle as he himself admitted in his examination under section 313 Cr.Pc. The evidence of eye witness discloses that it was a pure case of accident when the situation went beyond control and as a result the bus came down from the main road to the Kutcha road and the unfortunate incident happened and it is well established that a lorry was coming from the opposite direction when this driver was honking continuously to give side and the bus ahead at that time lost control and went down to the kaccha road. In Mahammed Aynudin V. state of A. P. AIR 2000 SC 2511 it was observed:-

“A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and within difference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.”

P.W.4 adduced evidence as the MVI technical rank according to whose opinion the accident occurred due to other than mechanical failure therefore the question of the accident being happened on account of mechanical failure does not arise. The post mortem report also supports the case of the prosecution that the cause of death was due to the injuries which was ante mortem in nature.

So from the nature of the evidence adduced the role attributed by the appellant can be seen which sufficiently attracts the ingredients of Section 279/304-A IPC because had there been no insistence by the accused driven to overtake through left side when a lorry was also coming from opposite direction these accident may not have occurred and two innocent persons would have still alive. So and this Court finds no irregularities with the observation of both the learned appellate court as well as the learned trial court that he should not have insisted to overtake and ultimately he did the same and his act of negligence of overtaking took the lives of two innocent people and hence the charge under Section 279/304-A IPC is proved against him.

At this stage it is to be considered that the incident happened in the year 2006, the judgement of the appellate Court was passed on 2006 and the revisional application was filed in the year 2006 but the matter was pending before this Court since 2006 that is for a period of almost 19 years so it would be really harsh if the appellant is taken behind the bar after long 23 years. In the judgment as relied upon by the Learned Advocate of the appellant in Prakash Chandra Agnihotri vs State of Madhya Pradesh (supra) where the order of conviction was for a period of 6 months and a fine of Rs. 250, for commission of offence under Section 304-A of the Indian Penal Code the Hon’ble Supreme Court was pleased to convert the sentence to fine for the interest of justice since the judgement was passed after 18 years from the date of incident .In this case also the order of conviction and sentence was of Rigorous Imprisonment for a period of 6 months for commission of offence under Section 279/304-A IPC so following the above decision in view of the passing of long time due to delayed disposal of the case the said period of sentence is hereby converted to fine of Rs. 10,000 which is to be deposited with the trial Court within one month from this date and the Trial Court is directed to disburse the same to the family to the de-facto complainant being the family of the deceased and in absence thereof to the next to kin of the deceased person. It is made clear in default of the payment of such fine the appellant will have to undergo for the imprisonment for 3 months. Accordingly this revisional application is disposed with the above terms. Let a copy of this judgement be sent to the trial court for taking necessary steps.

In view of the disposal of this revisional application all the connected applications are hereby disposed of.

Urgent Photostat copy of the order be supplied upon compliance of all formalities.