Judgment & Order (Cav)

1. Heard Mr. J. Hussain, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Addl. Public Prosecutor for the State and Ms. R. Choudhury, learned counsel for the informant/respondent No. 2.

2. This is an application under Section 442 read with Section 438 of BNSS, 2023 assailing the impugned Judgment and Order dated 26.09.2023, passed by the learned Sessions Judge, Kamrup, Amingaon in Criminal Appeal No. 23/2018 dismissing the appeal and thereby upholding the impugned Judgment and Order dated 27.11.2018, passed by the learned CJM, Kamrup, Amingaon in CR Case No.13028/2013, convicting the petitioner and sentencing him to undergo Simple Imprisonment for one month under Section 279 of IPC and Simple Imprisonment of six months under Section 304(A) of IPC.

3. The brief facts leading to the institution of this appeal is that one Md. Basir Ali on 02.11.2013 lodged an FIR before I/C Bijoynagar OP interalia stating that on 11.09.2013 at around 2.40 pm when his father Md. Gathiya Seikh was proceeding on foot near Madrassa High School on NH.37, one TATA Magic vehicle bearing regd. No. AS25AC3299 coming from Chhaygaon towards Guwahati in a very rash and negligent manner lost control of the vehicle and collided with his father causing grievous injuries as a result of which his father expired on the spot. It is also stated that the said Tata Magic Vehicle after losing control collided with a stationary truck which was standing on the side of the road bearing regd. No. AS01H7389. In the FIR he also mentioned that one of the passengers of the Tata Magic vehicle Md. Taijuddin Ali has also suffered grievous injury and is undergoing treatment. In the FIR he mentioned that as he was preoccupied with the religious activity on the demise of his father there was delay in lodging of the FIR.

4. On receipt of the FIR I/C Bijoynagar PP made GDE No. 227 dated 02.11.2013 and forwarded the same to O/C Palashbari PS for registering a case under the proper provisions of law, SI Dhrubajyoti Borah I/C Bijoynagar PP had taken up the Investigation. On receipt of the FIR O/C Palashbari PS registered Palashbari PS Case No. 365/2013 u/s 279/304A/338/427 IPC. Police after completion of investigation submitted charge sheet against the accused Kushal Nath u/s 279/338/304A/427 IPC. Along with the charge sheet I/O submitted one post mortem report, two MVI reports, seizure list and one Injury report.

5. In course of proceedings accused/appellant appeared before the learned Chief Judicial Magistrate(CJM), Kamrup, Amingaon and learned CJM after going through the record framed charge u/s 279/304A/338/427 of IPC against the accused/appellant. Ld. CJM after completion of trial convicted the accused/appellant as stated above.

6. Being aggrieved, Criminal Appeal No. 23/2018 was preferred by the petitioner, which also came to be dismissed by the learned Session Judge, Kamrup, Amingaon by Judgment dated 26.09.2023.

7. I have heard the learned counsels for the parties. I have also perused the material available on record.

8. The evidence in the case may be briefly discussed.

9. Adverting to the instant case, PW-1, Md. Basir Ali, the informant of this case, has deposed before the learned Trial Court that he does not know the accused person and on 11.09.2013 at about 02:00 pm, i.e. the date of the incident, he got information from one Babujhan (PW-4) that his father met with an accident. PW-1 stated that he immediately rushed to Bijoynagar PHC and found his father in a serious injured condition, but his father unfortunately succumbed to his Injuries, PW-1 stated that on enquiry, he came to know that the driver of the offending TATA Magic vehicle drove the vehicle under the influence of alcohol, in a careless and reckless manner and hit his father absolutely on the side of the road.

10. PW-2, Md. Mahim Uddin Ahmed @ Mahim Ali, who is an eyewitness of the incident, stated in his evidence that the incident took place on 11.09.2013 at about 02:00/02:45 PM. PW-2 stated that at that time, he was standing in front of his residence on the side of the National Highway and at that time, one TATA Magic vehicle coming from Boko side and going towards Guwahati at a high speed knocked a person standing on the backside of the truck. PW-2 stated that he along with other person pulled the Magic vehicle and pulled out the person rammed by the TATA Magic vehicle. PW-2 stated that the victim and other injured persons were taken to hospital. But the injured unfortunately expired in the hospital. PW-2 stated that he saw that the driver of the offending TATA Magic vehicle drove the vehicle in a careless and reckless manner causing the accident.

11. PW-3, Md. Babujhan Ali, who is an eyewitness of the incident, stated in his evidence that he knows the informant. But he does not know the accused person. PW-3 stated that on 11.09.2013 at about 12:00 Noon/1:00 PM, a TATA Magic vehicle was coming from Chhaygaon side to Guwahati and near Batorhat, a truck was kept parking on the side of the road, but the TATA Magic vehicle hit a person walking on the side of the road with the stranded truck, and as a result, the person died on the spot. PW-3 that the driver of the TATA Magic vehicle left the place by leaving the vehicle there. PW-3 stated that he was present on the side of the spot and informed the matter to the family of the victim.

12. PW-4, Md. Hamid All, who is a seizure witness, stated in his evidence that the incident took place in the year 2013 at Batorhat. PW-4 stated that he went to the place of occurrence after 10-15 minutes of the incident and saw Ghatia Sheikh (victim) lying dead by the side of the road. PW-4 stated that he saw injuries on the chest and saw blood oozing out from the mouth of Gathia Sheikh. PW-4 stated that eyewitnesses of the incident told him that one TATA Magic vehicle knocked him.

13. PW-5, Md. Eleyas Hussain, who is an eyewitness of the incident, stated in his evidence that he knows both the informant and the accused person. PW-5 stated that the incident occurred on 11.09.2013 tabout 02:40 pm near Haligaon Madrassa High School over 37 National Highway. PW-5 stated that on that day, the victim was going by the side of the road towards Bijoynagar and at that time, he was knocked by a TATA Magic vehicle bearing registration number AS-25-AC-3299 coming at high speed and negligent manner from the back side and dragged him with the vehicle and collided with a stranding truck. PW-5 stated that at the time of the incident, he was standing near the Madrassa High School. PW-5 stated that the victim was declared dead at Upaharli medical. PW-5 also stated that one passenger, Md. Taizuddin and another passenger who were coming on the TATA Magic vehicle also sustained grievous injuries. PW-5 stated that the accident occurred due to the negligence of the accused person.

14. PW-6, Md. Rahul Hussain Ali, in his evidence stated that he knows the informant but he does not know the accused person. PW-6 stated that the incident occurred in the year 2013 at about 2/2:30 pm at Batorhat Chowk over 37 National Highway and on that day, the victim who was his grandfather came out of his house and was going towards Bijoynagar on a bicycle and when he reached the place of occurrence, one TATA Magic vehicle knocked him from the front side and dragged him, as a result, he collided with a truck which was standing there and died on the spot. The bicycle of the victim was also damaged.

15. Upon consideration of the evidence on record, the learned Trial Court came to the conclusion that the eyewitness account of the incident revealed that the victim was knocked down by a Tata Magic vehicle, which dragged the deceased and it collided with a standing truck and the sketch map also reveals the place of occurrence was by the side of the road, which suggests that the deceased was coming by the side of the road and the seizure list also discloses that the offending Tata Magic vehicle and the accused person were involved in the accident. The MVI report disclosed the damage caused to the Tata Magic vehicle, which is suggestive of the fact that it knocked the deceased and collided with the standing truck.

16. The learned Trial Court also came to the finding that in the instant case, the accused had driven the Tata Magic vehicle at high speed in a negligent manner, causing the death of the deceased.

17. The learned Appellate Court also relied upon the evidence of PW-5, Md. Eleyas Hussain, who deposed that the Tata Magic vehicle being driven by the accused was coming at a high speed in a negligent manner and knocked the deceased while he was going by the side of the road and dragged him with the vehicle and collided with a Truck standing there. His evidence regarding seeing the accused driving the Tata Magic vehicle was not challenged during crossexamination and PW-7 deposed that after the incident, the accused appellant had surrendered before the police on the basis of the above as well as the other surrounding circumstances. The learned Appellate Court also held that it can be safely concluded that the accused appellant was driving the Tata Magic vehicle on that date and the evidence of PW-5 was also corroborated to a certain extent and also by PW-2 who deposed that he was an eyewitness and he had seen the Tata Magic vehicle hit one person standing on the back of the truck and he had pulled out the person rammed by the vehicle who later expired.

18. The fact of negligent manner of driving has been proved all beyond reasonable doubt from the evidence which has been brought on record by the prosecution, held the learned Appellate Court.

19. The learned counsel for the petitioner submits that it would not have been possible for the PW-2 to see the incident since he was standing at a distance of 30-40 feet/meter and there are many other infirmities in the evidence. For example, the color of the offending vehicle, number of passengers traveling therein, number of vehicles lying at the road at the time of the accident could not be deposed to by PW-2.

20. These are matters which depend on the power of observation of the individual concerned and more when an accident takes place, nobody can be expected to count the number of cars or number of passengers and it may not be possible to recall the color of the vehicle concerned. It is also submitted that the PW-5 stated during cross-examination that he was about 100 meters away from the place of occurrence and therefore, the accident may not have been visible to him. The figure of 100 meters stated by the PW-5 is his estimation which may or may not be correct.

21. But that ipso facto does not lead to a conclusion that he could not have seen the accident and more over during cross-examination of PW-5, defense did not challenge that he had seen the accused driver driving the Tata Magic vehicle and PW-7 also deposed that the accused had surrendered before the police after the accident.

22. In a revision application, the revisionary Court is not expected to go into the minute details of the evidence as if sitting in appeal. Unless some glaring omission or error committed by the learned Courts below has been pointed out or it is a case of no evidence.

23. A revisionary power is normally to be exercised on a question of law. However, when factual appreciation is involved then it must find place in the class of cases resulting in a perverse finding and the power is required to be exercised so that justice is done and there is no abuse of power by the Court. [Amit Kapoor Vs. Ramesh Chander reported in 2012 9 SCC 460].

24. It is only in the event of a glaring defect in the procedural aspect or there being a manifest error on the point of law and thus a flagrant miscarriage of justice that exercise of revisionary jurisdiction ought to be called for. Ordinarily, it is not open for the revisionary Court to re-appreciate the evidence in its revisional jurisdiction. [State of Karnataka Vs. Appa Balu Ingale, reported in AIR 1993 SC 1126].

25. The learned Courts below have come to concurrent findings of fact and I do not see any such glaring error, material irregularity or perversity in the said findings discussed herein above.

26. As far as the quantum of sentence is concerned, the learned Trial Court has imposed the sentence of 1 month SI under Section 279 IPC and 6 months SI under Section 304A IPC, which has been affirmed in appeal.

27. Having regard to the fact that due to the rash and negligent act of the petitioner, one person has lost his life, I see no reason to interfere with the quantum of sentence.

28. In view of the above, the revision petition stands dismissed.