in the court of judicial magistrate first class,...

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

http://indiankanoon.org/doc/785258/

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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-4 : Sketch map of place of Occurrence


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

in the court of judicial magistrate first class,...

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