Subash Reang vs State Of Tripura

[1] Heard Mr. S. Sarkar, learned counsel appearing for the convict-appellant and Mr. S. Debnath, learned Addl. P.P. appearing for the State-respondent.

[2] This appeal is directed against the judgment and order of conviction and sentence dated 11.12.2018, passed by the learned Sessions Judge, Dhalai Judicial District, Ambassa, in connection with S.T.(TYPE-2) 6 of 2015, whereby and whereunder, the appellant has been sentenced to suffer RI for 3 (three) months, for the offence under Section-337 of IPC and to suffer imprisonment of 6(six) months for the offence committed under Section-338 of IPC and further imprisonment for a period of 3(three) years for committing offence under Section-304 Part-II of IPC with default stipulations.

[3] Being charged under Sections-279/337/338 and Section-304 Part-II of IPC, the convict-appellant was tried. The offence as the convict-appellant had committed was that, he was driving a vehicle bearing registration number TR-01-A-2098 (commander jeep), which was overloaded by gunny bags of rice and other items & also was carrying 19 passengers. When the vehicle was going upward, suddenly started rolling down backwards and ultimately had collided with an iron-bridge and fallen into a lunga (ditch). Some passengers were injured and one person expired at the spot, and the driver fled away. The police officer suo moto lodged an FIR and investigation was carried out. The driver was arrested, relevant documents relating to the vehicle were seized. Ultimately, the investigating officer had submitted charge-sheet against the accused driver and the charges were framed. In course of trial as many as 24 witnesses were examined and 14 documentary evidences were introduced.

[4] After completion of recording evidences, the convict-appellant was examined under Section-313 of Cr. P.C., where he denied the incriminating materials revealed against him by the prosecution witnesses.

[5] Having heard the learned counsel for the parties, learned trial Judge convicted the appellant and sentenced him as aforestated. Hence, this appeal.

[6] Mr. S. Sarkar, learned counsel appearing for the convict-appellant has submitted that there were nine injured witnesses but, only one eye-witness i.e. PW-5 had identified the driver i.e. convict-appellant. Mr. Sarkar, learned counsel further submits that the conviction of the convict-appellant under Section-304 Part-II of IPC is unwarranted and not sustainable in law. He further submits that the evidence let in by the prosecution attracts the provision of Section 304-A, but, not Section-304 Part-II.

[7] On the other hand, Mr. S. Debnath, learned Addl. P.P. appearing for the State-respondent has submitted that the convict-appellant had committed the offence and he has rightly been convicted and sentenced. He further submits that the convict-appellant had fled away after the accident without looking into the passengers.

[8] I have heard and considered the submission of both the learned counsel appearing for the parties and also perused the evidence and the judgment of the trial Court. To consider the sustainability of the judgment under which the appellant had been convicted and sentenced under Section-304 Part-II of IPC, it is relevant to reproduce the said provision which is as under:

"Application of Section-304 Part-II necessary requirements-

To make out an offence punishable under Section 304 Part-II of the Code, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death."

[9] Now, to reach at a definite conclusion about what offence the convict-appellant has actually committed, I have gone through the evidence brought on record. All the injured witnesses have categorically stated that the vehicle while climbing a hilly road suddenly started to roll behind and collided with an iron bridge and had fallen into a ditch, thereby caused injuries to them and other persons, and out of that accident one person succumbed to his injuries.

[10] After perusal of the evidence, it transpires that the vehicle was overloaded due to which it could not climb the hill and went down hitting the iron-bridge. It is a sheer negligence on the part of the driver, who has been convicted and sentenced herein. For purpose of reference Section-304A of IPC reads as under:

"304A. Causing death by negligence:- whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

[11] After careful reading of both Section-304 Part-II and Section-304A, I am of the opinion that, the convict-appellant has committed offence under Section-304A of IPC and has to be convicted under the said provision.

[12] Mr. Sarkar, learned counsel appearing for the convict-appellant has submitted that the convict-appellant is the only earning member of his family and if he has been convicted for two years as prescribed under Section-304A, not only he, but also his entire family members will be ruined. Mr. Sarkar, learned counsel has further submitted that in interior area where there is scarcity of vehicles, sometimes the people force the driver to carry their goods along with them and the driver at that time had no other alternative to do but to board them.

[13] Considering the entire scenario as I have already discussed, that the convict-appellant, has committed offence under Section-304A IPC, he has to be convicted and punished under the said provision instead of Section-304 Part-II of IPC. The conviction of the accused-appellant as upheld by the trial Court is upheld.

[14] Under Section-304A, maximum imprisonment as prescribed is two years, or fine or both. Since the convict-appellant has not been committed any offence prior to that of the present offence, I am inclined to sentence him to suffer imprisonment for one year along with fine. Accordingly, the accused-appellant has been sentenced to suffer rigorous imprisonment for 1(one) year along with a fine of Rs. 5,000/- (Rupees five thousand) only, in default to pay the fine money, the accused-appellant shall further suffer simple imprisonment for 1(one) month.

[15] It is submitted that the convict-appellant is on bail, as such, I direct the convict-appellant to surrender before the Court of learned Sessions Judge, Ambassa, Dhalai Judicial District within a period of one month from today.

[16] With the modification in the above terms in regard to the sentence imposed upon the appellant, the instant appeal stands partly allowed and thus, disposed off. Pending application, if any, also stands disposed off.

[17] It is pertinent to mention herein that the if the convict-appellant does not surrender before the learned trial Court within 30 days from today, the learned Sessions Judge, shall pass necessary order ensuring the convict-appellant to suffer sentence as imposed by this Court. The period of detention during investigation and trial shall be set-off from one year sentence as imposed by this judgment.

[18] A copy of this order be supplied to the learned Sessions Judge, Abmassa, Dhalai Judicial District for doing the needful in accordance with law. The benefit of bail as granted to the convict-appellant shall stand to be cancelled after expiry of one month which will be counted from the date of this judgment.