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DISTRICT:: TINSUKIA

IN THE COURT OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE,

TINSUKIA

G. R. Case No. 1613/2015

U/S. 279 and 304A I. P. C.

STATE

V.

Sri Ranjit Jatarma

... Accused Person

PRESENT: Sri Kiran Lal Baishnab, AJS.

Additional Chief Judicial Magistrate,

Tinsukia.

For the Prosecution: Smti. J. Khatoon, Addl. P. P.

For the Defence: Sri Brijesh Mishra, Advocate.

Evidence recorded on: 10.05.2016, 20.04.2016, 22.06.2016, 12.08.2016, 16.12.2016,

16.02.2017, 26.07.2017 and 04.10.2017.

Argument heard on: 23.10.2017.

Judgment delivered on: 02.11.2017.

JUDGMENT

1. The prosecution case in brief, as reflected from the ‘ejahar’, is

that on 11.07.2015 at about 7.00 P. M., the accused Sri Ranjit Jatarma

riding a motorcycle bearing Registration Number AS-23M-4382, in a rash

and negligent manner dashed the deceased Rahul Sah near Kajanibari

Shiv Mandir, Dinjan as a result of which the deceased sustained grievous

injuries on his body and succumbed to said injuries while under

treatment in Tinsukia Civil Hospital. Hence, the case.

Contd..Page/2

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2. That on 12.07.2015, the case was brought into motion by

written ejahar filed before the In-charge, Panitola Police out post who

received the case vide G.D. entry No.284 dated 12.07.2015 and

forwarded it to the Officer-in-Charge, Tinsukia Police Station who in turn

received and registered the same as Tinsukia P. S. Case No. 889/2015,

U/s-279/304A of the Indian Penal Code.

3. On the basis of the ‘ejahar’ police started investigation and

after completion of investigation the police found sufficient materials

against the accused Sri Ranjit Jatarma for the offence U/s – 279 and

304A of the Indian Penal Code. Hence, the Investigating Officer

submitted charge-sheet u/s- 279 and 304A of the Indian Penal Code

against him.

4. On submission of the charge-sheet, the case was

transferred to this Court by the Hon’ble Chief Judicial Magistrate,

Tinsukia. This court upon receipt of the Case Record took cognizance

U/s. 279 and 304A of the Indian Penal Code against the accused Sri

Ranjit Jatarma and issued summons upon the accused person. On his

appearance the accused Sri Ranjit Jatarma was enlarged on bail. During

trial copies of relevant documents were furnished to the accused Sri

Ranjit Jatarma complying with the provisions contained U/s. 207 Cr. P. C.

and particulars of the offences U/s. 279 and 304A of the Indian Penal

Code was explained to the accused person and was asked as to whether

he pleads guilty to the offences charged, to which he pleaded not guilty

and claimed to be tried.

5. In the course of hearing the prosecution examined 7 (Seven)

witnesses, namely; P.W.1,Sri Bijay Sah; P.W.2, Sri Deepak Rai; P.W.3, Sri

Shiv Charan Thakur; P.W.4, Md. Wahidur Rahman; P.W.5, Sri Santosh

Sah; P.W.6, Sri Monuj Gowalla; P.W.7, Sri Bishnu Dayal Sah; P.W.8, Sri

Sakin Mridha; P.W.9, Rohit Chouhan and P.W.10, Sri Sunil Gogoi.

The prosecution also exhibited The Ejahar as Exhibit-1; the

seizure list as Exhibit-2 and 3; the inquest report as Exhibit- 4; the sketch

map of the P.O. as Exhibit-5; the M.V.I. report as Exhibit-6; the post

mortem report as Exhibit-7 and the charge-sheet as Exhibit-8.

Contd..Page/3

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The accused person was examined U/s. 313 Cr. P. C. and his

answers were recorded on a separate sheet.

The defence story is of total denial and they declined to adduce

any evidence.

6. Points for determination:-

Whether on 11.07.2015 at about 7.00 P. M., the accused

Sri Ranjit Jatarma riding a motorcycle bearing Registration

Number AS-23M-4382, in a rash and negligent manner dashed

the deceased Rahul Sah near Kajanibari Shiv Mandir, Dinjan as a

result of which the deceased sustained grievous injuries on his

body and succumbed to said injuries while under treatment in

Tinsukia Civil Hospital and thereby committed offences punishable

U/s. 279 and 304A of the Indian Penal Code?

7. Discussion, Decision and Reasons thereof:-

Heard arguments of both sides. Perused the Case Record

very minutely. My findings are as follows:-

The Learned advocate for the defence argued that the

prosecution failed to adduce any evidence showing rashness or negligence

of the accused person as alleged and as such, the prosecution failed to

prove the case against the accused Sri Ranjit Jatarma. On the other hand

the prosecution argued that the case was proved beyond all reasonable

doubts against the accused person.

Now, in the instant case to bring home the charges U/S – 279

and 304A of the Indian penal Code against the accused Sri Ranjit

Jatarma, the prosecution has to prove the following ingredients:-

i. That the accused Sri Ranjit Jatarma was riding the

motorcycle bearing Registration No. AS-23M-4382 near

Kajanibari Shiv Mandir, Dinjan on 11.07.2015 at about

07.00 P. M in a rash or negligent manner;

ii. That the accused dashed against the deceased Rahul Sah

as a result of which he sustained grievous injuries

And

Contd..Page/4

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iii. That the rash and negligent riding of the accused caused

the death of deceased Rahul Sah;

As to the date, time and place of occurrence, though all the

witnesses did not specifically state the exact date, time and place of

occurrence and the same is corroborated by the ejahar.

P.W.1, Bijay Sah, the informant and P.W.2, Sri Deepak Rai

deposed that the incident took place on 11.07.2015 at about 7.00 PM.

near Shiv Mandir on the road.

P.W.3, Sri Shiv Charan Thakur deposed that the incident took

place in the year 2015 in front of Shiv Mandir at about 6.00 PM.

P.W.4, Md. Wahidur Rahman deposed that the incident took place

in the month of July, 2015 at about 7.00 to 7.30 PM. on Dinjan Kajani Bari

road.

P.W.5, Sri Sanotosh Sah deposing on 12th day of August, 2016

stated that the incident took place in the previous year in the evening in

the Kajani Bari road.

P.W.6, Sri Monuj Gowalla deposed that the incident took place

near Kajnibari T.E. at about 7.00 PM.

P.W.7, Sri Bishnu Dayal Sah deposed that the incident took place

in the year 2015 at about 6.00 to 6.30 PM.

P.W.8, Sri Sakin Mridha deposing on 16th day of February, 2017

stated that the incident took place about 1 and half year ago.

P.W.9, Sri Rohit Chouhan deposed that the incident took place on

11.07.2015 at about 8.00 PM. near the temple of Dinjan on the road.

Though all the witnesses could not state the exact date and time

of the incident. They could corroborate the ejahar as to the period of

incident and the same is even admitted by defence.

Moreover, the informant and his nephew Sri Deepak Rai

specifically stated corroborating each other that the incident took place on

11.07.2015 at about 7.00 PM. near Shiv Mandir.

Thus, it is seen that though all the witnesses did not specifically

state the exact date, time and place of the accident but their deposition

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as to the period of incident is very well corroborated by the ejahar and

other documents on record.

Moreover, the defence also does not deny the accident as a

whole but deny the rashness and negligence of the accused person in the

alleged offences.

Thus, I am of the considered opinion that the prosecution

successfully proved beyond all reasonable doubts that the accident took

place near Kajanibari Shiv Mandir, Dinjan on 11.07.2015 at about 07.00

P. M.

The fact that the involved motorcycle was being ridden by

the accused Ranjit Jatarma at the time of the accident is admitted by the

defence and also stated by the witnesses of the prosecution.

P.W. 6, Sri Monuj Gowala was the pillion rider of the said

motorcycle at the time of the accident and he deposed that the accused

Ranjit Jatarma was ridding the motorcycle at that time.

It is also admitted by the defence that the deceased met

with accident with the motorcycle which was being ridden by the accused

Ranjit Jatarma. Not only that, the defence also submitted and even

supported by other witnesses of the prosecution that the accused person

himself also sustained injury in the said accident.

It is deposed by P.W.1, the informant that when he came

to the place of occurrence he saw the accused person and another person

lying on the road and the bike was also lying at the place of occurrence.

This statement of the informant is even corroborated by

P.W.6, Sri Monuj Gowalla who stated that the motorcycle in which he was

coming along with the accused fell on the ground and Ranjit Jatarma

sustained injuries along with the deceased and that he also sustained

injuries on his back.

The fact that the accused person sustained injuries in the

incident in question is also deposed by P.W.2, Deepak Rai who stated that

the person who was riding the involved bike also sustained injuries.

P.W.5, Sri Santosh Sah also deposed that the motorcycle

ridden by the accused Ranjit Jatarma had hit the deceased Rahul causing

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injuries on his head and that Ranjit Jatarma also sustained injuries in the

said accident.

P.W.7, Sri Bishnu Dayal Sah deposed that at the time of

the accident the motorcycle was being ridden by the accused Ranjit

Jatarma.

Thus, in my considered opinion there is no doubt that the

accused Ranjit Jatarma was ridding the involved motorcycle at the time of

the incident and that the deceased was hit by the said motorcycle.

Hence, I am of the considered opinion that the

prosecution could successfully prove the first ingredient of the offence

u/s- 279 and 304A of the Indian Penal Code i.e. it is successfully proved

beyond all reasonable doubt that the accused Sri Ranjit Jatarma was

riding the motorcycle bearing Registration No. AS-23M-4382 near

Kajanibari Shiv Mandir, Dinjan on 11.07.2015 at about 07.00 P. M in a

rash or negligent manner.

Now, the facts remains to be proved is that the

motorcycle was being driven in rash and negligent manner.

In this connection the P.W.1 and 2 deposed that the

motorcycle was being ridden at a high speed and thus, the ridding of the

motorcycle was rash and negligent.

P.W.1, Sri Bijay Sah deposed that the bike was being

ridden in high speed by the accused standing in the dock and dashed his

son.

During cross examination the P.W.1 stated that his

nephew Deepak Rai reported that it was at the speed of 90 KM/hr.

This fact is duly corroborated by P.W.2, Sri Deepak Rai whereby

he deposed that the bike was at a speed of 80-90 KM per hour.

Contradicting the evidence of P.W.1 and 2, P.W.3, Sri Shiv Charan

Thakur deposed that he was standing near the place of occurrence at the

time of incident and he saw that the accused person was driving the

motorcycle at a normal speed at the time of incident.

P.W.5, Sri Santosh Sah stated during cross examination that

though he had not seen the accident he often goes on the bike of the

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accused as a pillion rider and as such knows that the accused usually

drives at a normal speed.

P.W.6, Sri Monuj Gowalla deposed that he was a pillion rider at the

time of the accident on the involved motorcycle and the accused was

riding his motorcycle at a normal speed.

It was also stated during cross examination by P.W.3, Sri Shiv

Charan Thakur and P.W.6, Sri Monuj Gowalla that the motorcycle was

being ridden on the left side of the road.

It is also deposed by P.W.6 that the deceased suddenly came

across the road and got dashed against their bike thereby sustaining

injuries and this fact is also corroborated by P.W.3 who stated that the

boy was crossing the road and at that time the motorcycle came and hit

him.

None of the other witnesses deposed anything as to the speed of

the motorcycle what to speak of rash or negligent riding of the same.

Here the prosecution argued vehemently that the accident was

caused due to the rash riding of the motorcycle by the accused which is

implied from the speed as witnessed by P.W.2 and corroborated by P.W.1.

On the other hand the defence argued that the bike was at a

normal speed and the accident was caused due to sudden running of the

deceased across the road and there was no fault on the part of the

accused person.

The learned advocate for defence also argued that even if it is

admitted for the sake of the argument that the accused was riding the

bike at a high speed, it cannot be termed as rash or negligent act as

because high speed is a relative term. A vehicle which is driven in a

congested road even at a speed of 30 K.M. may constitute high speed,

but driving a vehicle at a speed higher than 30 K.M. in an open road may

not be considered driving at high speed. It would depend upon nature

and situation of road, concentration of pedestrians and vehicular traffic on

it and many such other relevant factors.

The learned advocate for defence supported his submission by the

ruling of Hon’ble Supreme Court of India given in State of Karnataka v.

Satish, reported in (1998) 8 SCC 493.

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In the aforesaid case, the Hon’ble Supreme Court of India held

that -

“4. Merely because the truck was being driven at a “high

speed” does not bespeak of either “negligence” or “rashness” by

itself. No ne of the witnesses examined by the prosecution could

give any indication, even approximately, as to what they meant by

“high speed”. “High speed” is a relative term. It was for the

prosecution to bring on record material to establish as to what it

meant by “high speed” in the facts and circumstances of the case.

In a criminal trial, the burden of providing everything essential to

the establishment of the charge against an accused always rests

on the prosecution and there is a presumption of innocence in

favour of the accused until the contrary is proved. Criminality is

not to be presumed, subject of course to some statutory

exceptions. There is no such statutory exception pleaded in the

present case. In the absence of any material on the record, no

presumption of “rashness” or “negligence” could be drawn by

invoking the maxim “res ipsa loquitur”. There is evidence to show

that immediately before the truck turned turtle, there was a big

jerk. It is not explained as to whether the jerk was because of the

uneven road or mechanical failure. The Motor Vehicle Inspector

who inspected the vehicle had submitted his report. That report is

not forthcoming from the record and the Inspector was not

examined for reasons best known to the prosecution. This is a

serious infirmity and lacuna in the prosecution case.”

The learned advocate for defence also submitted that relying on

the aforesaid judgment the Hon’ble Gauhati High Court also held that

mere driving at a high speed cannot constitute rashness or negligence as

required to constitute an offence U/S- 279 and 304A of the Indian Penal

Code.

This fact is also discussed very well by the Hon’ble Gauhati High

Court in the case of Kriti Singh Vs. State of Assam cited at 2005 (2)

GLT 274.

Contd..Page/9

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In the case of Kriti Singh Vs. State of Assam it was held by the

Hon’ble Gauhati High Court that –

“In order to find a person guilty under Section 279 IPC

prosecution is to establish that the accused was driving the

vehicle in a public way and that he was driving in a rash or

negligent manner. Similarly, to constitute offence under Section

304 (A) IPC, the prosecution is to establish the rash or negligent

act of the accused which was responsible in resulting to death of

the victim and such act of rash or negligence do not amount to

culpable homicide. Thus, in order to constitute either of these two

offences, the proof of rashness or negligence is essential. The

term "rash" and "negligence" has not been defined in the code

and both the words are not synonymous. Rashness is an act done

in the hope that no untoward consequence will ensue though the

person is aware of the like hood of such consequence. On the

other hand, negligence is acting with the awareness that harmful

or mischievous consequences will follow. If a person does an act

with utter indifference of the consequence, of which he may be

conscious, which he hoped may not take place, he is said to be

rash. Negligence is failure to take that precaution, which a

reasonable and prudent person is expected to take. Even if an act

is found to be negligent, it may not be construed to mean as rash

in a given case. Culpable rashness is acting with consciousness

that mischievous consequences are likely to follow although the

accused hoped, even though he hoped sincerely, that

consequences might not follow. Criminality lies in not taking the

precaution to prevent the happening of the consequences in the

hope that they may not happen. On the other hand, negligence is

an act done without doing something, which a reasonable man,

guided upon those considerations, which ordinarily regulate the

conduct of human affairs, would do, or an act, which a prudent or

reasonable man would not do in the circumstances attending

it. The Apex Court in the case of Bhalchandra Vs. State of

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Mahashtra, reported in AIR 1968 SC1319, approving what was

said by Straight in Empress of India vs. Indu Beg, (1881) ILR 3

ALL 776 held that criminal negligence is the gross and culpable

neglect or failure to exercise that reasonable and proper care and

precaution to guard against injury either to the public generally or

to an individual in particular, which having regard to all the

circumstances out of which the charge has arisen, it was the

imperative duty of the accused person to have adopted.” 20. For

proving the offences under section 279 or 304(A) IPC, Proof of

criminal rashness or negligence is essential. When there is no

evidence by the prosecution that the driver was driving rashly and

negligently due to which the accident took place, it cannot be said

that the accident took place due to rush and negligent driving.

21. In criminal trial, as opposed to civil proceeding, the burden of

establishing the charge against the accused rest on the

prosecution and the standard of proving the same is always

beyond all reasonable doubts. For liability under criminal law, a

very high degree of negligence is required to be proved. Apart

from other ingredients, to bring home the offence under section

279 or 304 (A) IPC, first of all the identity of the author of rush

and negligent act must be fixed by proper evidence. But, in the

present case in hand the prosecution failed to prove that the

accused was driving the vehicle not to speak of rush and

negligently.

In the instant case, P.W.2, 3 and 6 are admittedly the eye

witnesses out of which only the P.W.2 stated that the accused was riding

at a high speed and thus, his evidence being contradicted by the other

two eye witnesses, his evidence is not at all reliable.

Hence, considering the contradictory evidence adduced by the

witnesses of the prosecution as to the speed of the motorcycle and the

precedent relied upon by the defence, as discussed above, I am of the

considered opinion that not only there is doubt as to riding of the bike at

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high speed but it is also seen that the speed alone cannot be considered

as a rash or negligent act as required in the instant case and thus, there

is no material on record showing rash and negligent ridding of the

motorcycle by the accused person.

Hence, in my considered opinion there is no reliable evidence on

record in proof of rash or negligent riding of the involved motorcycle by

the accused person.

Thus, from the foregoing discussion, I am of the considered

opinion that the Prosecution though successfully proved the fact that the

deceased met with an accident on 11.07.2015 at about 07.00 P. M at near

Kajanibari Shiv Mandir, Dinjan, they failed to prove the fact that the

accident was caused due to the rash or negligent riding of the motorcycle

by the accused person.

Hence, I am of the considered opinion that the prosecution

had failed miserably to prove beyond all reasonable doubts that on

11.07.2015 at about 7.00 P. M., the accused Sri Ranjit Jatarma riding a

motorcycle bearing Registration Number AS-23M-4382, in a rash and

negligent manner dashed the deceased Rahul Sah near Kajanibari Shiv

Mandir, Dinjan as a result of which the deceased sustained grievous

injuries on his body and succumbed to said injuries while under treatment

in Tinsukia Medical and thereby committed offences punishable U/s. 279

and 304A of the Indian Penal Code.

ORDER

Hence, considering the above

discussions, the accused Sri Ranjit Jatarma

is found not guilty of the offences

punishable U/s. 279 and 304A of the Indian

Penal Code and thus, he is accordingly

acquitted of the said accusations/charges

labeled against him.

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8. The bail-bond of the accused Sri Ranjit Jatarma stands

cancelled.

9. The judgment is delivered and operative part of the same

is pronounced in the open court, today, the 2nd day of November, 2017

under my hand and the seal of this Court.

(KIRAN LAL BAISHNAB) Additional Chief Judicial Magistrate

Tinsukia

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ANNEXURE

1. PROSECUTION WITNESSES:

P.W.1 - Sri Bijay Sah;

P.W.2 - Sri Deepak Rai;

P.W.3 - Sri Shiv Charan Thakur;

P.W.4 - Md. Wahidur Rahman;

P.W.5 - Sri Santosh Sah;

P.W.6 - Sri Monuj Gowalla;

P.W.7 - Sri Bishnu Dayal Sah;

P.W.8 - Sri Sakin Mridha;

P.W.9 - Rohit Chouhan

And

P.W.10 - Sri Sunil Gogoi.

2. DEFENCE WITNESSES:

NIL.

3. EXHIBITS (BY PROSECUTION SIDE):

Exhibit-1 :: The Ejahar;

Exhibit-2 and 3 :: The seizure list;

Exhibit-4 :: the inquest report;

Exhibit-5 ::The sketch map of the P.O.;

Exhibit-6 :: The MVI report;

Exhibit-7 :: The Post mortem report;

And

Exhibit-8 :: The charge-sheet.

4. EXHIBITS (BY DEFENCE SIDE):

NIL.

(KIRAN LAL BAISHNAB) Additional Chief Judicial Magistrate

Tinsukia