in the court of judicial magistrate first class,...
TRANSCRIPT
G.R. Case No. 2045/2014 Dated: 27.01.16
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IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,
TINSUKIA
Present:– Smti Karuna Devi, A.J.S.
Judicial Magistrate First Class,Tinsukia.
Wednesday, the 27th day of January, 2016
G.R. Case No. 2045/2014
U/S. 279/ 304(A)/ 427 I.P.C.
State of Assam ……....... Complainant.
-Vs-
Sri Sayanjyoti Gogoi,
S/O. Sri Dimbeswar Gogoi,
R/O. Choto Tingrai T.E.,
P. S.Bordubi,
Distt. Tinsukia, Assam ………… Accused.
Date of charge : 18.02.15
Date of evidence : 23.03.15, 21.04.15, 20.05.15, 17.06.15, 13.07.15, 09.11.15,
Date of argument : 08.12.15, 18.01.16
Date of Judgment : 27.01.2016.
This case coming on for final hearing on the 08.12.15 and 18.01.16 in the
presence of:-
Advocate for the Prosecution :- Smti P.Kalita, Astt.P.P
Advocate for the Defense :- Sri N. Phukan and associates
and having stood consideration to this day, the Court delivered the following
Judgement:
JUDGMENT
1. The brief fact of the prosecution story is that the complainant, Sri Laljee
Bhagat lodged an ejahar before Tinsukia Police Station(Traffic Branch) on
12.10.2014 stating inter-alia that on 28.09.14 at about 7 p.m, while his father was
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returning from Tinsukia Sunday Bazar after selling vegetables in his hand cart, a
motorcycle bearing registration number AS-23-L-7146 , which was also going from
Tinsukia towards Tingrai Side, which was being driven in a rash and negligent
manner knocked down his father from behind near Tingrai bridge as a result of
which his father got grievous injuries on his person and became senseless. That the
rider of the motorcycle was caught by nearby people who informed police and that
his father expired on 29.09.14 at about 8.25 a.m. That the hand-cart was also
damaged in the accident. That the accident occurred only due to rash and negligent
driving of the rider of the motorcycle. That as he was busy in performing the last
rites of his father and other religious ceremonies, hence the delay in lodging the
ejahar. That verbal information of the accident was informed in Tinsukia P.S. on the
day of the accident itself. Hence, the instant case upon the accused person.
2. The i/c of Tinsukia P.S.( Traffic Branch) received the said ejahar vide GDE
No. 248 dated 12.10.14 and forwarded the same to Tinsukia P.S., where the same
was registered as Tinsukia P.S. case No. 918/14 U/S. 279/ 304(A)/ 427 I.P.C. After
completion of investigation, the I.O. submitted charge-sheet against the accused
person U/S. 279/ 304(A)/ 427 I.P.C.
3. Summons was issued to the accused person who appeared thereafter and
was allowed to go on bail. Then, the accused person was furnished copies as per
the provisions of Sec. 207 Cr.P.C. After perusal of the Case-Record, statements
under Sec.161 Cr.P.C., FIR, Case-Dairy, etc, prima-facie materials were found
against the accused person U/S. 279/ 304(A)/ 427 I.P.C., and so gist of the
offences were explained to the accused person to which he pleaded not guilty and
claimed to be tried.
4. POINTS FOR DETERMINATION:-
i. Whether the accused person on 28.09.14 drove his motorcycle bearing
Registration No. AS-23-L-7146 in such a rash and negligent manner so
as to endanger human life on a public way and thereby committed the
offence as alleged?
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ii. Whether the accused person, in the same day and same time drove the
motorcycle in such a rash and negligent manner that it caused death of
the complainant’s father and thereby committed the offence as alleged?
iii. Whether the accused person, by such rash and negligent driving, caused
damage to the hand-cart pulled by the complainant’s father and thereby
committed the offence as alleged?
5. During the course of trial, the prosecution side examined eight (8) number
of witnesses. Statement of the accused person was recorded under Sec. 313 Cr.P.C.
The defense case was of total denial and they adduced one document as evidence.
I have heard the arguments of both the sides and thereupon come to the following
findings:
DISCUSSION, DECISION & REASONS THEREOF :
6. Now coming to the depositions of the witnesses, PW-1, Sri Lalji Bhagat
deposed that he was at his house at the time of the accident, which is around 5
kilometres away from the place of occurrence. That his fellow villager, Sri Bhaiti
Sasoni informed him that his father had met with an accident. That one bike had
knocked down his father due to which the entire accident occurred. That he
immediately went to the place of occurrence and met police there. That he saw that
the cart pulled by his father was completely damaged and also the bike involved in
the accident. That police took his father first to St. Luke’s Hospital and when he
visited his father, he saw his father in a serious condition and that he had sustained
injuries on his head and chest and cut wound on his hand. That his father was
referred to Dibrugarh for further treatment and next day his father expired at 8.30
a.m. That he was busy in the final rites of his father, hence the delay in lodging the
ejahar. That police seized the cart and the bike involved in the accident. That his
father was returning home after selling vegetables in Tinsukia and the bike was also
going from Tinsukia direction. That the accident occurred due to the mistake of the
accused person and that the accident occurred as the bike was in a high speed.
7. During his cross-examination, PW-1 deposed that he learnt about the
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accident at around 7 p.m. and he went to the place of occurrence with one Sri
Ranjit Bhagat. That he met police and some fellow villagers at the place of
occurrence. That none of the people in the place of occurrence told me about the
accident. That at the time when he lodged the ejahar, the accused person was not
present. That he does not know to read and write English. That he doesn’t know
what is written in the ejahar. That he does not remember the registration number
of the bike involved in the accident. That he has filed the instant case for the
expense borne by him in the treatment of his father.
8. PW-2, Sri Parama Sasoni deposed that he was at his house at the time of
the accident. That while he was going from his house towards the shop when he
heard a hue and cry from the house of Lalji Bhagat and he heard that Lalji Bhagat’s
father had met with an accident. That he thereafter went home. That he learnt that
Lalji Bhagat’s father was admitted in hospital and later he expired. That he had
signed in Ext-2 as witness when police had given zimma of the cart to Lalji Bhagat.
9. During his cross-examination, he deposed that he has no knowledge how
the accident occurred and that he had not seen the cart after the accident. That he
has no knowledge about what is written in Ext-2.
10. PW-3, Sri Nandu Bhagat deposed before Court that the accident occurred
near his house and that the place of occurrence can be seen from his house. That
he was outside his house at the time of the accident. That while the deceased was
going from Tinsukia after selling vegetables, the bike had knocked him down from
behind. That he does not know the name of the person driving the bike. That he
went and caught the person. That due to the accident, the deceased fell down in a
ditch and sustained injuries. That the person driving the bike also sustained injuries.
That they picked up the deceased person from the ditch and took him to hospital
for treatment. That he was bleeding and unconscious and was in a critical
condition. That the person driving the motorcycle sustained injury on his nose. That
he took both the driver and the injured to St. Luke’s Hospital. That he heard the
next day that Mukti Nath Bhagat expired in Dibrugarh. That they called over police
and handed over the cart and the bike. That the cart was completely damaged.
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11. During his cross-examination, he deposed that the accident occurred near
Tingrai Bridge and that his house is situated at around 20 metres from the place of
occurrence. That Nandan Dutta, Dhan Saikia, Mohan Bhagat and Bimi Dutta are his
neighbours. That lights were on at the time of the accident. That both the cart and
the bike were moving from Tinsukia direction and the lights of the motorcycle was
also switched on. That he does not know the model of the motorcycle. That he had
witnessed the incident himself. He denied that he has not seen the incident, that he
was deposing falsely, that none had seen the incident and hence none had come
forward to depose, that he had not handed over the motorcycle and cart to police.
12. PW-4, Sri Amar Tassa deposed that he knows the accused person from
the day of the incident and that he knew the deceased person, Mukti Nath Bhagat.
That he was going home from Bahadur Charali and when he stopped to receive one
phone call, then the accident occurred. That deceased, Mukti Bhagat was travelling
back home from Tinsukia after selling vegetables. That one blue coloured Yamaha
FZR bike, being driven by the accused person in the same direction knocked down
the deceased victim from behind. That the motorcycle did not bear any registration
no. at the time of the accident and later the accused person’s father put the
number plate having number AS-23-7146. That the accused and the motorcycle fell
down due to the accident. That the deceased fell down on the left side of the road
and hit one light post and the cart broke into two pieces. That the accused person
fell a little distance away as the bike was in high speed. That when the accused was
trying to pick up the bike and go, then he stopped him and took him alongwith the
deceased to St. Luke’s hospital in the autorickshaw. That the deceased was
probably first taken to Civil Hospital and thereafter to Assam Medical, Dibrugarh.
That the next day, he learnt that Mukti Nath Bhagat had expired.
13. During his cross-examination, he deposed that he is the night chowkidar of
Shivpur T.E. and that he has no duty on Sunday. That the day of the incident was a
Sunday. That at the time of the accident, he was driving a motorcycle. That the
incident occurred at around 5.50 p.m. and there was some light and it was visible.
That he was talking over phone at the time of the incident but he could not
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remember with whom he was talking. That he does not know the name of the
accused person. That he does not know to whom the autorickshaw belonged to in
which the victim was taken. That Nandu Bhagat was also with him. That at that
time, the accused person was conscious and the victim was unconscious. That he
heard after 3/4 days that the victim had expired but he could not state who had
informed him. That he saw the motorcycle again after about 3 months of the
accident and that at that time, it bore a number plate. That there was dent in the
visor and petrol-tank. That the bike had scratch and the left indicator was broken.
That his garden is situated at a distance of around 2 kms away from the place of
occurrence. That as he is the ACMS president, hence he is not required to attend to
his duty. That he regularly attends his duty from 4 p.m. till 12/ 1 a.m. He denied
that he was not present at the time of the accident, that he had not seen the
accident. That he could not stated due to whose mistake the accident occurred.
14. PW-5, Sri Ranjit Bhagat deposed that at the time of incident, he was
going home in a motorcycle from Tinsukia. That he saw a crowd in the place of
occurrence and on stopping, he saw the victim and the accused person. That the
deceased was lying on the left side of the road near the garbage and the accused
got up and was trying to go when Amar Tassa caught the accused and took him in
the autorickshaw with the deceased to St. Luke’s Hospital. That he saw that the
victim was bleeding from his mouth and was unconscious. That the victim’s cart
was broken into two pieces. That the accused had also sustained minor injuries.
That the victim was taken to St. Luke’s Hospital, thereafter to Swastik Nursing
Home and then to Civil Hospital. He was then referred to Dibrugarh medical. Next
morning, he learnt that the victim had succumbed to his injuries. That the deceased
at the time of the incident was returning from the market with his cart towards his
house. That as per other people, the accused person was also driving the
motorcycle and he knocked down the deceased from behind as a result of which
the deceased was thrown towards a post and sustained injuries. That he could not
say due to whose fault the accident occurred.
15. During his cross-examination, he deposed that he had not seen the incident.
That he had not met police at the place of occurrence. That he was not questioned
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by police. That he does not know what is written in Ext-2 and that police had not
read over to him what was written in Ext-2.
16. PW-6, Sri Ganesh Tanti deposed that he has no knowledge about the
accident. That he does not know the deceased or the complainant. That he met the
accused person’s father who took him to the police station where he signed Ext-3.
17. PW-7, Sri Sadananda Kherawar deposed that the accused person’s
father had met him and asked him to accompany him to the police station to bring
back the motorcycle. That he had signed Ext-3 in the police station.
18. PW-8, ASI Sri Bhaben Dutta deposed that on receiving information about
the accident, he went to the place of occurrence. There he found the driver injured
and took him to Tinsukia Civil Hospital and seized the cart and the motorcycle. That
Ext-2 and 3 are the seizure list of the motorcycle and the cart. That they received
the ejahar on 12.10.14. That the ejahar(Ext-1) was received vide GDE No. 248
dated 12.10.14 upon which Tinsukia P.S. Case No. 918/14 U/S. 279/ 304(A)/ 427
IPC was registered and he was entrusted to investigate the case vide Ext-1(2). That
he took down the statement of the complainant, prepared the sketch map of the
place of occurrence vide Ext-4 and also took down the statement of the witnesses.
That he got the MVI report of the vehicle after inspection. That when the accused
person appeared in the P.S., he was questioned, arrested and also allowed to go on
bail. That on completion of his preliminary investigation, S.I. Sri Jatin Konwar
submitted charge-sheet against the accused person U/S. 279/ 304(A)/ 427 IPC vide
Ext-5.
19. During his cross-examination, he deposed that they received information
about the incident on 28.09.14 through a phone call and the same was entered in
GDE No. 593 dated 28.09.14. That there are two numbers of GDE no. in this case.
That he immediately went to the place of occurrence on receiving the information.
That Ext-4 was prepared at the place of occurrence. That Ext-2 and 3 was prepared
on the day of the incident. That Ext-2 and 3 has the reference of the case number
which was registered on 12.10.14. That PW-4, Amar Tassa has not stated before
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him that the incident occurred at 7 p.m. neither did he state the colour, registration
number or model of the motorcycle. That he only stated the name of the accused
person. That PW-1 did not state before him that the accident occurred due to the
mistake of the bike nor as to who had informed him about the accident. That he did
not meet the accused person at the place of occurrence when he visited the P.O.
20. Now, let us appreciate the evidence available on record to arrive at the
points for determination. The points for determination are whether the accused
person had committed the offences U/S. 279/ 304(A)/ 427 IPC. In order to see
whether the essential elements of these sections have been proved or not in the
instant case, we must start first from the FIR, through which the complainant had
set the state machinery into action.
21. Now, it is to be remembered that FIR is only a piece of information which
sets the criminal law into motion and is not in any way a substantive piece of
evidence. Before we proceed to examine the evidences, one thing that is apparently
clear is the accident as well as the death of the deceased person, Sri Mukti Nath
Bhagat is nowhere disputed. The only eye-witness of the incident are PW-3 and
PW-4. PW-1, Sri Lalji Bhagat, who is the complainant deposed that one Sri Bhaiti
Sasoni informed him about the accident but the said witness has not been
examined so as to corroborate the said witness. Further, he has deposed that the
accident occurred due to the mistake of the speeding bike but it is worth
mentioning that he has not stated the same before police while his statement U/S.
161 Cr.P.C was recorded. It is also stated by him that he has not seen the incident.
As such, he being a hearsay witness and his statement being uncorroborated
cannot be taken into consideration.
22. On the other hand, PW-2, Sri Parama Sasoni deposed that he learnt about
the accident from the house of PW-1 but did not state who has informed him. As
such, his evidence being hearsay is unacceptable being of no evidentiary value. He
has also deposed that he signed Ext-2 as zimma witness but Ext-2 is the seizure list
and not the zimma bond, which makes his statement doubtful. Similarly, PW-6 and
7 are seizure witnesses but they, in their respective depositions, have deposed to
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have no knowledge about the seizure as both of them have deposed that they had
gone to the police station to take back the seized motorcycle. Hence, it is seen that
the seizures also could not be proved.
23. Now, coming to the eye-witnesses, PW-4, Sri Amar Tassa deposed that he
saw the victim coming from Tinsukia direction and the accused riding his blue
coloured Yamaha FZR bike with no number plate but it is pertinent to note that the
said fact has not been stated by him before police in his statement U/S. 161 Cr.P.C.
as affirmed by the I.O. of the case who deposed as PW-8, in which case his
statement cannot be taken up for consideration as being contradicted with his
statement U/S. 161 Cr.P.C. He also stated that he does not know the name of the
accused and that he could not state how the accident has occurred. Hence, nothing
relevant for the points for determination has been stated by the said witness. PW-5,
Sri Ranjit Bhagat, on the other hand, stated that he could not say due to whose
fault the accident occurred.
24. PW-3, Sri Nandu Bhagat has stated that he has seen the accident himself
and that he saw that when the deceased was returning back home, then the
accused person knocked him down. He also stated that he does not know the name
of the accused person. However, it is pertinent to note that he failed to recognise
the accused person present in Court at the time of his examination. Had he stated
truly in his examination, then he could have easily recognised the accused person
as he has stated that he had caught the accused and also took him to hospital. If
he had infact done so, the least he could have stated is that he has forgotten the
face of the accused or that he has difficulty in recollecting. Hence, in such a
circumstance his statement requires to be weighed with the other evidence on
record and see as to whether the same is corroborated or not. Although
corroboration may not always be necessary, but owing to the particular facts and
circumstance of a case, it becomes of utmost necessity. In the instance case, it is
seen that the place of occurrence is a busy road, being the Tinsukia- Duliajan link
road and that PW-3 has also stated the names of 4 neighbours and that the place
of occurrence is not far from his home. As the incident has occurred at a prime time
at around 5.30 to 6, it is unbelievable that there were no eye-witnesses who had
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seen the incident. As such, corroboration of evidence becomes of utmost
importance. In the instant case, it is seen that the statement of PW-3 is
corroborated by none and hence under the circumstance, it can be presumed that
PW-3 has failed to prove the case of the prosecution, as his evidence is un-
corroborated.
25. Now, to constitute an offence U/Section 279 IPC, it requires the following
ingredients to be established by the prosecution: (1) The accused was driving a
vehicle or riding; (2) He was doing so on a public way; (3) He was also doing so
rashly or negligently; (4) The act of driving or riding was to endanger human life or
was likely to cause hurt or injury to any other person. And in order to constitute an
offence U/S. 304(A) IPC, the three things which are required to be proved for an
offence under Section 304(A) are : (1) death of human being; (2) the accused
caused the death and, (3) the death was caused by the doing of a rash or
negligent act. Although the death of Mukti Nath Bhagat is not disputed at all, it is
seen that the prosecution has miserably failed to prove that it was the accused
person who was driving the motorcycle, that he had driven the same in a rash and
negligent manner and that due to such driving, the deceased had to met with an
accident causing his death. Hence, it is seen that prosecution has failed to prove
the charges U/S. 279/ 304 (A) IPC.
26. Further, as the seizure has not been duly proved, hence mischief could not
be proved satisfactorily beyond reasonable doubt so as to hold the accused person
guilty U/S. 427 IPC. Neither the seizure of the motorcycle bearing Regn. No. AS-23-
L-7146 and the hand pulled cart has been proved nor the quantum of damage
substantially assessed so as to constitute an offence U/S. 427 IPC. Hence, in the
absence of substantive proof, the benefit of doubt may be accorded to accused and
hence he is found not guilty of the offence U/S. 427 IPC.
27. Thus from the evidence of the prosecution witness, it is found that there is
no evidence on record to implicate the accused person with the incident, as has
been alleged in the FIR. The cardinal principle of criminal jurisprudence is that the
guilt of an accused person in any criminal case is required to be established beyond
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any reasonable doubt by cogent evidence. Hence in the absence of any substantive
proof or evidence to substantiate the guilt of the accused person in the instant
case, this Court is of the considered opinion that the accused person is not guilty of
the offences U/S. 279/ 304(A)/ 427 I.P.C.
ORDER
28. Thus, in view of the above discussions and observations, Sri Sayanjyoti
Gogoi is not found guilty of the alleged offences and hence he is acquitted of the
charges U/S. 279/ 304(A)/ 427 I.P.C. As such, he is to be set at liberty forthwith.
29. Seized articles be disposed of as per law in due course of time.
30. Bail-bond shall remain in force for a period of six months from today.
Given under my hand and seal of this Court on this the 27th day of January,
2016 at Tinsukia.
(Karuna Devi)
Judicial Magistrate First Class,
Tinsukia
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APPENDIX
Prosecution Witnesses:
PW-1 : Sri Lalji Bhagat
PW-2 : Sri Parama Sasoni
PW-3 : Sri Nandu Bhagat
PW-4 : Sri Amar Tassa
PW-5 : Sri Ranjit Bhagat
PW-6 : Sri Ganesh Tanti
PW-7 : Sri Sadananda Kherawar
PW-8 : ASI Sri Bhaben Dutta
Prosection Exhibits :
Ext-1 : FIR dated 12.10.14
Ext-1(1) : Signature of Sri Lalji Bhagat
Ext-1(2) : Endorsment of O.C. of Tinsukia P.S.
Ext-2 : Seizure list of “thella”( hand pulled cart)
Ext-2(1) : Signature of Sri Parama Sahani
Ext-2(2) : Signature of Sri Ranjit Bhagat
Ext-2(3) : Signature of I.O.
Ext-3 : Seizure list of Motorcycle
Ext-3(1) : Signature of Sri Ganesh Tanti
Ext-3(2) : Signature of Sadananda Kherawar
Ext-3(3) : Signature of I.O.
Ext-4 : Sketch map of place of Occurrence
Ext-4(1) : Signature of I.O.
Ext-5 : Charge-sheet
Ext-5(1) : Signature of S.I. Jatin Konwar
Defense Witnesses : Nil
Defense Exhibits : Nil
(Karuna Devi)
Judicial Magistrate First Class,Tinsukia