The State v. Sandip Kumar

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE AJOY KUMAR MUKHERJEE CRA No. 6 of 2018 The State ... Appellant

Versus

Sandip Kumar ... Respondent For the appellant : Ms. Sumit Karmakar For the respondent : Mr. Gopala Binnu Kumar Heard on : August 22, 2022 Judgment on : August 25, 2022 AJOY KUMAR MUKHERJEE, J.

1.

Being aggrieved and dissatisfied with the judgement and order of acquittal passed on 21st December, 2017 by the learned Court of Chief Judicial Magistrate, Mayabunder in GR Case No. 192 of 2012 for commission of offence under Section 279/304 A of Indian Penal Code read with Section 134/187 of Motor Vehicles Act, 1988, present appeal has been preferred by the State through learned Public Prosecutor under Section 378 of Code of Criminal Procedure.

2.

The grounds taken in the appeal by the appellant is that the Court below did not appreciate the case of the prosecution

in its proper perspective. There are ocular witnesses in the case and learned Trial Judge has disbelieved the deposition of the ocular witnesses and acquitted the accused person without appreciating the evidence on record properly. The entire judgement of the Court below is beyond the evidence on record. 3.

Mr. Sumit Karmarkar on behalf of the State submits that PW-1 has categorically stated that she is the ocular witness of the incident and due to rash and negligent driving on the part of the accused, the accident occurred. He further submits that PW-3 is an independent witness but he has corroborated the evidence of PW-1. PW-4 who is another eye witness has also corroborated the evidence of other ocular witnesses. Similarly learned Court below also failed to appreciate the evidence of PW-5, who is an independent witness and also corroborated the mode and manner of accident. Learned Trial Court also failed to appreciate the evidence of PW-8 and the Motor Vehicle Inspection Report which is marked as Exhibit 3. Exhibit 3 clearly states that the accident did not occur due to any mechanical failure of the offending vehicle. Furthermore, learned Trial Court failed to appreciate the fact that while examining the accused under Section 313 Cr.P.C, the accused driver had admitted the accident and also admitted that he was driving the vehicle at the relevant point of time.

4.

Mr. Karmakar further submits that learned Trial Court failed to appreciate the fact that all the eye witnesses remained unimpeached during the cross-examination and their testimony is creditworthy and trustworthy, and are fully reliable and should have been believed by the Trial Judge. Accordingly, Mr. Karmakar submits that the judgement and order of acquittal passed by the learned Magistrate on 21st December 2017 in GR Case No. 192 of 2012 is bad and illegal and against various judicial pronouncements of the Hon'ble High Court as well as Apex Court of India and as such impugned judgement is liable to be set aside and the accused is liable to be convicted and punished.

5.

Mr. Gopala Binnu Kumar on behalf of the accused submits that the impugned judgement is well reasoned. The evidence adduced on behalf of the prosecution is full of contradictions and does not support the prosecution case. He further submits that from the facts and circumstances of the case and the evidence brought on record, if two propositions emerges before the Court, one is in favour of the conviction and the other in favour of the acquittal, then the accused should get the benefit of doubt. Furthermore, it is settled principle of law that no one should be punished merely on the basis of surmises and conjectures and accordingly, Mr. Kumar submits for the dismissal of the present appeal.

6.

Considered the submissions made by both the parties. Prosecution had heavily relied upon evidence of PW-1, PW-3 and PW-4, who are stated to be eye-witnesses of the incident. On perusal of the evidence of PW-1 who claimed herself as ocular witness of the incident, stated that 'she saw one red colour Echo vehicle which was coming from Rangat towards Betapur at high speed and after overtaking another vehicle, which was proceeding from opposite direction, had dashed the victim'. She further stated that the driver was caught red handed. PW 3 also stated to be an eye witness of the accident, but he has only stated that 'one red coloured Maruti Echo was coming from Rangat to Mayabunder with speed and dashed one aged person'.

Said PW-3 unlike PW-1 has not stated that at the time of accident the accused was driving the vehicle at high speed but he has only stated that it was running with speed. Moreover, during cross-examination he has stated that 'prior to reaching spot there were two to three persons present there'. PW-4 another eye witness stated that 'he saw one vehicle was coming from Rangat to Mayabunder with a zig-zag way and high speed and dashed the victim'.

victim. Though the prosecution claimed that PW-3 is an ocular witness, but it appears from the evidence of PW-3 that he had not specifically stated that he had witnessed the accident. On the contrary he had stated that his shop is situated 100 meters away from the spot and at the relevant time of accident, there were 8 - 10 persons in his shop. Prosecution has not explained as to who were those 8 - 10 persons and why those persons were not brought as witnesses to corroborate the prosecution case.

7.

On careful scrutiny of the impugned judgement, it appears that the Trial Court recorded the order of acquittal mainly on the following grounds amongst others :- a. PW- 1, who is daughter of the victim has only stated about high speed of the car. No where she stated that the accused/driver was driving the vehicle rashly or negligently. High speed alone of a car cannot be said as negligent driving. In this context learned Trial Court relied upon Abdul Subhan vs. state (NCT of Delhi), 2006 (3) SCC 1797 and state of Karnataka Vs. Satish reported in 1998 SCC (cri) 1508.

b. The alleged incident took place on the National Highway, where lot of vehicles run day and night and from the sketch map (exhibit-7), it appears that the road is wide and straight and naturally driving in high

speed cannot be said as negligent, considering the surroundings of the P.O. witnesses did not say about probable speed of the vehicle at the time of accident and therefore it is difficult for the court to understand what according to prosecution was high speed to cause the incident.

c. PW-3, other eye-witness did not speak about high speed of the vehicle and he did not say about negligent driving by the driver and on the contrary, after scanning his evidence as a whole, it demonstrates that he had not seen the incident and reached the P.O. after incident.

d. PW-1 claimed that she had seen the accident but she did not say that the car was running in zig-zag manner at the time of occurrence but PW-4 claimed that he saw that the vehicle was coming from Rangat to Mayabunder in zig-zag way, which is an attempt to exaggerate prosecution case.

e. Said PW-4 contradicted prosecution case on material point by saying during cross-examination that no vehicle crossed the offending vehicle prior to the incident. Again PW-5 claimed that one vehicle crossed the offending vehicle just before the incident, though in cross-examination PW-5 admitted that he had not

witnessed the incident and he does not know for whose fault, said incident occurred.

f. There is no denial of the facts of accident and death of victim. The quest before the Court is for whose fault the accident took place. In this regard other witnesses did not say anything to implicate the accused person with the incident.

g. Considering all aspects, it appears that there are so many contradiction in the deposition of the witnesses on material point. Except high speed there is no other allegation against the accused. Speed of the vehicle not proved. It is not proved which particular speed in the given circumstance can be considered as negligent driving.

h. Though prosecution submitted that the deceased fall about 15 meters away from the spot and the electric pole was bend but that by itself does not justify that the vehicle was running in rash and negligent manner and conviction cannot be based on the basis of presumption.

8.

In Rohtash -vs- State of Haryana 2012 (6) SCC 589 the law of interfering with the judgement of acquittal has been well settled by the Apex Court. It is to the effect that only in exceptional cases, where there are compelling circumstances

and the judgement in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. In this context the Apex Court reminded that the appellate court should bear in mind the presumption of innocence of the accused and further that the Trial Court's acquittal bolsters the presumption of innocence. It was further held that interference in routine manner where the other view is possible should be avoided, unless there are good reasons for interference. 9.

Needless to say that the accused is not FIR named and it is only the PW-3 who has stated that he came to know one Sandip Kumar was driving the vehicle. But said PW-3 during cross-examination could not identify the accused person. Except PW -1, 3 and 4 other witnesses have not admittedly witnessed the accident.

10.

Now regarding high speed and negligent driving, it appears from the evidence of Mechanical Engineer R.Soma Sekharan Pillai that the accident took place on Andaman Trunk Road where vehicle admittedly ply constantly. Moreover, from a catena of decisions it is now settled principle of law that even if the vehicle in question was running at a high speed, at the relevant time of accident, it does not automatically lead to an inference that it was running in a rash and negligent manner.

11.

Having perused the evidence of the witnesses as stated above I find that it is difficult to rely upon those evidence and to record the order of conviction. I feel that the Trial Court had rightly discarded their evidence as unworthy of reliance. It appears that the evidence of alleged ocular witnesses namely PW-1, PW-3 and PW-4 does not corroborate with each other about the cause and manner of accident to prove the rashness or negligence causing the incident. The other witnesses have not claimed to have seen any rashness or negligence on the part of the accused. There are no certain circumstances which raises suspicion about the allegation levelled against the respondent in respect of driving the vehicle in question in a rash or negligent manner. It is well settled that convictions cannot be based on suspicion or surmises or conjectures. Accordingly, I am unable to come to a conclusion that the impugned judgement is perverse. The contradictory statements of prosecution witnesses cannot be stated to be minor contradiction as submitted by learned counsel for the appellant.

12.

The presumption of innocence of the accused being primary factor, in absence of exceptional compelling circumstances and perversity of the judgement, I am not inclined to interfere with the judgement of the Trial Court.

13.

In view of the above CRA 006 of 2018 is dismissed. However from the facts and circumstances of the case, without any cost.

14.

Urgent photostat certified copy of this order, if applied for, shall be supplied to the parties upon compliance of all formalities.

(AJOY KUMAR MUKHERJEE, J.)