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HEADING OF JUDGMENT ON APPEAL

IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE,

Present : Md. A.U.Ahmed, AJS

Additional Sessions Judge, Golaghat

CRIMINAL APPEAL NO. 18 OF 2016

(Under Section 374(3) of the CrPC)

Sri Joy Kumar Singh Son of Sri Late Pakhang Singh Vill-Baihha Kandighat Dist-Cachar, Present Address:- Bokakhat Koroati Gaon P.S-Bokakhat Dist- Golaghat, Assam------Appellant

Versus

1.State of Assam 2.Sri Arun Hazarika Son of Late Upen Hazarika Vill-Purana Amalapatty PS & Dist- Golaghat ------Respondents Appearance:

For the appellant : Sri P.Borah, Advocate For the State of Assam : Md.S. Rahman, Additional PP Date of argument heard : 23-06-2016 Date of Judgment pronounced : 08-07-2016 Page 2 of 9

JUDGMENT

1. This criminal appeal has been directed against the Judgment and order dated 02-05-2016 passed by the Sub-Divisional Judicial Magistrate, Bokakhat(S) in connection with GR Case No.692-2012 where by the appellant/accused person has been convicted and sentenced under sections 279/304A/338/427 IPC.

2. The prosecution story in brief is that on 17.05.12 at about 2-50 pm while the brother of the informant Barun Hazarika was coming from towards Dibrugarh by driving the Indigo car bearing regd. No.AS- 06 L -0091 along with his wife, son and daughter along NH 37, reaching Latabari under Bokakhat PS a dumper coming from opposite direction driven in high speed negligently knocked it down, as a result the said car got completely damaged and his aforesaid brother and his niece Poulmi Kayshap died on the spot. The rest occupants sustained serious injuries. The injured persons were immediately taken to Medical College. On receipt of the written ejahar, Bokakhat PS registered a criminal case vide Bokakhat PS Case No.69/2012 u/s 279/338/304A/ 427 IPC. On completion of the investigation charge sheet was submitted under sections 279/338/304A/427 IPC against the accused /appellant.

3. On completion of appearance of the accused person, copy was supplied to him. The particular of the offences u/s 279/338/304A/427 IPC was explained to the accused/ appellant to which he pleaded not guilty and claimed to be tried.

4. During the trial the prosecution has examine as many as 8 witnesses. Accused/appellant has been examined under section 313 CrPC. The defence has examined none. The plea of defense is of total denial.

5. The following points raised by the learned court below. (i) Whether the accused/appellant on 17.05.12 had driven the vehicle so rashly and negligently as to endanger the human life on the public road ? Page 3 of 9

(ii) If so, whether in consequent to the accident one Barun Hazarika & his daughter Poulmi Kashyap lost their lives at the spot and his wife Mintumoni Hazarika & male child Tathagot Kashyap received serious injuries and their vehicle got damaged extensively due to such rash and negligent act of the accused?

1. Having very carefully gone through the submissions of both sides as well as evidence on record, the learned court below passed the impugned Judgment and order. On being aggrieved and dissatisfied with the Judgment, this appeal has been preferred on the grounds stated in the appeal memo.

2. Point for determination:

Whether the impugned Judgment and order suffer any illegality, impropriety and infirmity

3. Decisions and reasons there of: I have very carefully gone through the arguments duly advanced by the Ld lawyers of both sides as well as case record of lower court, the impugned Judgment and the appeal memo.

4. It has been argued by the Ld. Lawyer appearing on behalf of the appellant that the learned court below has failed to appreciate the evidence of the victim and as such its finding is not proper and the same is liable to be set aside. On the other hand rebutting the aforesaid submission, the Ld. Additional PP has submitted that the Ld court below after full application of his judicial mind and meticulously scanning evidence adduced came to conclusion that the prosecution has succeeded in establishing its case under sections 279/338/304A/427 IPC against the accused/ appellant beyond all reasonable doubts and as such it can be said the he has rightly passed the impugned judgment and order in conformity with law. Page 4 of 9

5. I have given my anxious and thoughtful consideration as regards to the rival contentions raised by the learned counsel of both sides. In order to appreciate the arguments duly advanced by the Ld. Counsel of both sides and to examine correctness of the impugned judgment it would be appropriate to briefly scrutinize the evidence on record.

6. PW-1 is Sri Arun Hazarika who is the informant of this case. He has stated in his evidence that on 17.05.12 at 3 pm while his brother Barun Hazarika and niece Miss Riki were coming from Guwahati in an Indica car, reaching Latabari under Golaghat PS met an accident with a dumper coming from opposite direction, as a result niece Riki and aforesaid bother died on the spot. In the said car his sister-in-law Smti. Mintu and nephew Angshu were also coming. The nephew and sister-in-law were taken to Jorhat Medical College. Getting information about the accident he came to Bokakhat PS and found dead bodies of his brother and niece there. Dead bodies were sent for post mortem. Nephew and sister-in-law were taken to Jorhat and they were kept in ICU. Both injured persons sustained fracture injuries. He heard that while the Indica car was going slowly, 3 Nos.of dumper were coming from the opposite direction and while the dumper which was in the middle tried to overtake, the accident took place. On the same day he lodged a written ejahar. Ext.1 is the said FIR and Ext.1(1) is his signature. He could not recollect registration number of the said dumper. The car of the deceased Barun Hazarika was got complete damaged. He forgot who had drove the dumper.

7. PW-2 is Mrinmoy Dutta who is the nephew of the informant from mother side. His evidence reveals that on 17.05.12 while his uncle Barun, aunty Mintu, cousin and cousin’s sister Poulmi coming from Guwahati in an Indigo car to their house, reaching Latabari a dumper coming from opposite direction driven in rash and negligent manner at high speed knocked it down from front side as a result, uncle Barun and cousin sister Poulmi died on the spot. Aunty and cousin sustained serious injuries. Page 5 of 9

Injured persons were taken to Bokakhat hospital and thereafter they were taken to Jorhat Medical College. The injured persons sustained head injuries and their legs were broken. His uncle Arun lodged the case. He heard that due to fault of the accused / appellant the accident took place.

8. PW-3 is Smti. Mintumoni Hazarika who is one of the injured persons. Her evidence shows that on 17.05.12 while she , her husband Barun Hazarika, son Tathagot Kashyap and daughter Smti. Poulmi Kashyap were coming from Guwahati in an Indigo car to Dibrugarh, reaching Latabari under Bokakhat PS at 2-30 pm , one of the dumpers out of three numbers, which was in middle coming from opposite direction knocked their car down after overtaking the first one, as a result her husband and daughter died on spot. She and her son sustained injuries.

9. PW-4 is Sri Bhakta Bahadur Raut. His evidence shows that he knows nothing about the occurrence.

10. PW-5 is Sri Nomi Telenga. His evidence shows that about 2 years back one day at noon while he was in the line he heard that an accident took place. Coming to the place of occurrence he found that two persons died. He had not seen as to how the occurrence took place.

11. PW-6 is Bipul Kakaty. His evidence shows that about 2 years back at noon an accident took place wherein one Barun Hazarika and his daughter died while they were coming from Guwahati towards Dibrugarh. Getting information about the accident he came to the Bokakhat Hospital and found injured persons there who were wife and son of the deceased Barun Hazarika. Police seized the car of the deceased. Ext.2 is the said seizure list and Ext.2(1) is his signature.

12. PW-7 is Kamal Gogoi. His evidence shows that the occurrence took place in the month of May,2012 at about 2-50 pm while he was coming from Kaziranga to his house. He saw a dumper vehicle after crossing his car at Latabari being driven at high speed in rash and negligent manner. Page 6 of 9

He also saw the said dumper vehicle knocking down a silver colour Indigo car coming from Guwahati bearing regd. No.AS-06-L-0091. He also saw the aforesaid car being run over by the dumper vehicle. Due to aforesaid accident front side of the Indigo car was got completely damaged. The driver of the dumper vehicle fled away immediate after the occurrence. On the day of the occurrence at about 3-10 / 3-15 pm, police came to the place of occurrence. Two occupants of the car died on the spot and remaining occupants sustained injuries. The occupants of the car who died on the spot are Barun Hazarika and Poulmi Kayshap. Ext.1 was written by him.

13. PW-8 is Khirod Kr. Duta. His evidence shows that the accused/ appellant has been driving the vehicle of one Ram Avatar Choudhury for 2/3 years. In the alleged accident some persons died. The dead bodies of the deceased had been taken to different places before he came to the police station. He saw a broken vehicle in the campus of the police station. Ext.2 is the seizure list and Ext.2(3) is his signature. He could not recollect as to why he had signed the Ext.2.

14. The case record shows that on 02-03-2016 the case was fixed for further evidence of prosecution side but on that day no prosecution witness turned up. On that day evidence of the prosecution was closed abruptly without assigning any reason. It is found that some vital prosecution witnesses namely investigating officer, Motor vehicle Inspector, seizure witness Sanjib Chaudhury were withheld to be examined. The case record is silent that for procuring the attendance of the aforesaid prosecution witnesses, any coercive measure was taken.

15. It is also revealed from the case record that the accused /appellant was examined twice. Second time the accused/appellant was examined in respect of evidence of PW-8. I find that the learned court below failed to examine the accused/ appellant u/s 313 Cr.PC properly in terms of incriminating evidence available in evidence.

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16. Evidence of PW-1 to PW-7 is totally silent that they saw the accused person driving dumper vehicle at the time of occurrence or coming out from the driving seat of the said dumper vehicle. It is found that the learned court below relying upon the evidence of PW-8 held that at the time of occurrence, the accused/appellant drove the offending dumper vehicle.

17. From the case diary it appears that on 19-05-2012 the investigating officer seized one vehicle bearing Registration No. AS-05C/1587, R/C, Fitness, permit of the said vehicle and Diving Licence of the accused/appellant Joy Singh on being produced by one Sri Sanjib Chaudhury who is the brother of the registered owner of said vehicle Sri Sushil Kumar Chaudhury. The fact remains that the after occurrence, the driver of the dumper vehicle having Registration No.AS-05C/-1587 fled away leaving the said vehicle in the PO. The fact also remains that in the car there were four occupants at the time of occurrence and that due to occurrence two occupants succumbed to injuries on spot and the rest became senseless due to injuries sustained. It is not possible for an occupant to identify the driver of a vehicle coming from the opposite direction.

18. The sketch map prepared by the investigating officer shows on what part of NH 37 at Latabari TE the occurrence took place. The NH-37 in the said area has 2 Nos.of lines. If both vehicles were on the tracks in their side, no occurrence would have been taken place. Evidence of PW-7 shows that he saw the dumper vehicle scuttling the Indigo Car while he was coming by driving his car behind the said dumper. From the evidence of PW-1 and PW-3 it appears that at the time of occurrence, 3 Nos. of vehicles including the offending vehicle were coming from opposite direction and that while the offending vehicle came to the track of the car for overtaking a vehicle, it collided with the car. In my considered view, the sketch map has vital role for arrive at right decision.

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19. In this case, the owner of the dumper vehicle is the best person who can say that at the time of occurrence under whose custody the alleged dumper vehicle was. The section 311 of the CrPC empowers the court to examine any person to arrive at right decision. It is a case where two persons succumbed to injuries sustained in the alleged occurrence. Learned Court below ought to have resorted to the section 311 of CrPC to arrive at right decision.

20. From the discussion made above I find that the learned court below has failed to record the statement of the accused/appellant u/s 313 Cr.PC properly. I also find that the learned court below committed error in closing evidence of prosecution without taking coercive measure for examination of MVI, seizure witness Sri Sanjib Chaudhury and investigating officer. Hence I find that it is a fit case for remand back.

O R D E R 21. In the result, the appeal is allowed. Accordingly the impugned Judgment and order are set aside and the case is remanded to the learned court below back for trial afresh from examination of MVI, seizure witness Sanjib Chaudhury and investigating officer at instance of the prosecution including examination of the owner of the offending vehicle Sri Sushil Kumar Chaudhury under section 311 of the CrPC. The learned court below is asked to dispose of the case within 2(two) months from the date of receipt of the case record back. Send the case record back immediately with a copy of this judgment & order. The accused/ appellant is asked to appear before the learned court below on 08.08.16.

22. Let LCR be sent to the learned court below with a copy of Judgment & Order back immediately. Accordingly this appeal is disposed of.

23. Given under my hand and seal of the Court on this 8th day of July 2016 at Golaghat. Page 9 of 9

Dictated and Corrected by me

(Md. A.U.Ahmed, AJS) (Md. A.U.Ahmed, AJS ) Additional Sessions Judge Additional Sessions Judge Golaghat, Assam Golaghat, Assam