In the Court of the Sub-Divisional Judicial Magistrate (S) at Dibrugarh

IN THE COURT OF THE SUB-DIVISIONAL JUDICIAL MAGISTRATE (S) AT DIBRUGARH

GR No.1395/09

U/S 279/338 IPC

Tulan Chetia @ Dhaneswar Chetia…………….…Accused.

Appearance:-

Smt. P Gogoi, APP, for the prosecution &

Kazi Safiqual Islam, advocate for the accused.

Evidence recorded on 23-12-2010,

17-09-2011,

17-02-2012,

19-05-2012,

12-06-2012,

29-09-2012,

03-12-2012 &

18-12-2012.

Argument heard on 19-03-2013.

Judgment delivered on 11-04-2013.

FACTS OF THE CASE

1. The allegation made against the accused by PW-4 is that on 01-08-09 at 4 p.m. the accused Tulan Chetia by riding a motorcycle bearing No.AS-06 C 5217 in speed mowed down the grand-daughter, Neha Sahu of the informant while she was standing in front of his residence causing hand and forehead injury and to this effect informant, Sibarat Sahu lodged an ejahar to the Officer-In-Charge (OC), Tingkhong Police Station (PS) through Rajgarh Police Outpost (OP).

2. After receiving the above ejahar forwarded by Rajgarh OP vide G.D.E. No.86 dated 06-08-09 the OC, Subash Kachari, Tingkhong PS registered a case no.104/09 u/s 279/338 IPC and directed ASI, Siddheswar Neog to take up the investigation and after completion of which Investigating Officer (IO) submitted charge-sheet against the accused person u/s 279/337 IPC.

3. Accused person was summoned to appear before this court. After his appearance, he was allowed to go on bail. Copy was furnished to him. Particulars of offences punishable u/s 279/338 IPC was explained to him to which he pleaded not guilty but claimed to be tried. Hence the case.

4. To prove the case prosecution examined as many as 15 witnesses including 4 CWs. The statement of the accused was recorded u/s 313 of Cr.PC. His plea was of total denial of the allegation made against him by the prosecution. However the accused declined to adduce his defence. Argument was heard from both sides.

pg. 1 POINTS FOR DETERMINATIO N

4(i). Whether the accused person on 01-08-09 at 4 p.m drove the offending motorcycle in a rash and negligent manner and met an accident to the granddaughter of the informant S.Sahu and thereby committed an offense punishable u/s 279 IPC?

(ii)Whether the accused person on 01-08-09 at 4 p.m caused grievous hurt to Neha Sahu by riding his motorcycle in a rash and negligent manner endangering public safety and thereby committed an offense punishable u/s 338 IPC?

DISCUSSION, DECISION AND REASON THEREOF

5. The allegation made against the accused by the PW-4 is that the accused by riding his motorcycle (AS-06 C 5217) in a rash and negligent manner mowed down the granddaughter of the informant at No.2 Rongabanani Gaon while she was standing in front of his residence Rajgarh Haloguri P.W.D. Road. The accident had taken place on 01-08-09 at about 4 p.m. and his grand-daughter sustained hand and forehead injury soon after which she was taken to Rajgarh CHC wherefrom she was referred to Assam Medical College and Hospital (AMCH) and thereof to Guwahati Medical College (GMC) and to this effect the informant lodged the Ext-1 ejahar/FIR subscribing his signature thereon as Ext-1(1). His allegation has been supported by eye-witness, PW-2 Ajit Tamang that the accused by riding a motorcycle from Haloguri to Rajgarh in a rash and negligent manner knocked down the granddaughter of PW-4 while she was standing in front of his residence. PW-3 Pankaj Phukan deposed that the accused by riding his motorcycle hitted Neha Sahu from behind coming from Rajgarh to Kendoguri and the offending motorcycle was lying on the spot. The rider of the motorcycle hitted the small girl Neha Sahu. PW-5, Rira Sahu stated the same version of PW-3 and accordingly her injured daughter was first admitted to the AMCH and thereof shifted to GMC for better treatment of the brain. PW-6 Juron Sahu, he is the father of the injured Neha Sahu. According to him his daughter was injured by hitting with a motorcycle by the accused Tulan Chetia and accordingly her daughter was treated at AMCH and then shifted to GMC for better treatment. PW-7 Govind Roy stated in his evidence that the accused by riding the motorcycle in a rash and negligent manner at Rangabanani Gaon met an accident to the granddaughter of the PW-4 and she was admitted to AMCH and after that to GMC . PW-8 Dibyananda Dahatia has clarified of the motorcycle accident as a result of which the motorcycle was damaged from the front side. Damage of headlight and side indicators and there was no mechanical failure of the offending motorcycle. Ext-2 is MVI report and Ext-2(1) his signature. PW-9 Dr.Naba Kumar Deka, I/C Rajgarh CHC. On 01-08-09 he examined injured Neha Sahu aged about 6 years old. On her examination he found abrasion on her hand and forehead and fracture. Ext-5 is Medical report and Ext-5(1) his signature. PW-10 Siddheswar Neog. He stated that on 06-08-09 he was serving as an ASI at Rajgarh OP under Tingkhong PS. On that day by receiving an ejahar from PW- 4, he forwarded it to the OC Tingkhong PS for registration which was marked with GD Entry. On 01- 08-09 one Priti Phukan informed of the accident to him and accordingly he was reported of the fact that motorcycle met with an accident with a small girl. On reaching the place of occurrence he found none there but he seized the motorcycle. The ejahar was filed by the PW-4 after six days of the accident and finally the accused person was arrested and he was allowed to go on bail. Ext-4 is seizure list and Ext-4(1) his signature. Ext-3 is seizure list and Ext-3(3) his signature. Ext-6 is sketched map of the place of occurrence and Ext-6(1) his signature. PW-11 on 30-12-09, he simply submitted charge-sheet against the accused u/s 279/337 IPC. Ext-7 is charge-sheet and Ext-7(1) his signature. The CW-1 to 4 also supported the prosecution case.

6. On the other hand it is contended by the defense counsel that the present case was investigated finally by an Assistant Sub-Inspector (ASI) of Police but the ASI who investigated into the case had no power to investigate into the case as per provisions of Part-V Chapter-II Rule 36 nor was he specially empowered by the Superintendent of Police (SP) as per evidence of the concerning OC of the Police

pg. 2 OP concerned and thus the investigation and charge-sheet are defective and the accused person may be acquitted.

7. Moreover the ASI, I/O in course of his cross-examination admitted that none of the witnesses stated that who drove the bike at the time of the alleged accident. He further stated that the accused person does not know how to drive bike and it is not a fact that the accused person was driving the bike and caused the accident.

8. The SI, PW-11, Dipok Bishaya who signed the charge-sheet in his evidence (Cross-examination) specifically stated that the final investigation of the case was not done and thus the charge sheet was submitted without final investigation. To this contrary the Learned APP refuted the allegation emphasizing that the accused by riding the motorcycle in a rash and negligent manner knocked down Neha Sahu from behind that too on the other side of the road coming from Haloguri to Rajgarh side towards Moran side. The accused have driven the offending motorcycle in a rash and negligent manner as inmate of the DI (TATA) vehicle PW-2 caught hold of the accused while he was fleeing away from the scene abandoning the offending motorcycle. It is evident from PW-1 to PW-11 that an accident had taken place at Rangabanani Gaon causing injury to Neha Sahu which has been supported by PW-9. The contention advanced by the defense side has been rebutted by the prosecution side. Prosecution has been able to prove its case against the accused as he by riding the motorcycle hitted Neha Sahu causing her hand and forehead injury and for her brain treatment she was shifted from Rajgarh CHC to AMCH and thereof to GMC which the accused side could not bring any fact of their denial of allegation leveled against the accused by the prosecution. The accused is convicted u/s 279/338 IPC.

9. Prosecution has been able to prove its case against the accused beyond any reasonable doubt. I find him guilty of offence u/s 279/338 IPC. I sentence him to pay a fine of Rs.1,000/- (Rupees one thousand) only u/s 279 IPC and Rs.1,000/- only u/s 338 IPC in default of which to undergo 2 months simple imprisonment for each offence and this will meet the ends of justice. If the fine is realized 50% of it be given to the victim. The bail bond of the accused stands cancelled. Let a copy of this judgment be given to the accused free of cost.

Given under my hand and seal of this court on this 11th day of April, 2013 at Dibrugarh.