IN THE COURT OF THE JUDICIAL MAGISTRATE (FIRST CLASS), JORHAT. GR CASE NO: 1881/2011 U/S.s 279/304A, IPC

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1 1 DISTRICT: JORHAT IN THE COURT OF THE JUDICIAL MAGISTRATE (FIRST CLASS), JORHAT GR CASE NO: 1881/2011 U/S.s 279/304A, IPC STATE OF ASSAM VERSUS SRI MANASH PRATIM BORGOHAIN PRESENT : B. DUTTA, JUDICIAL MAGISTRATE FIRST CLASS, JORHAT ADVOCATE FOR THE PROSECUTION: SMTI NANDITA GOHAIN, A.P.P. ADVOCATE FOR THE ACCUSED: SRI SIDDHARTHA BORA OFFENCE EXPLAINED ON: 02/01/2014 EVIDENCE RECORDED ON: 03/02/14, 14/03/14, 19/04/14, 09/07/14, 02/08/14 ARGUMENT HEARD ON: 28/08/2014 JUDGMENT DELIVERED ON: 06/09/2014 JUDGMENT 1) The incident, as alleged by the prosecution, which led to institution of this case is based on the ejahar filed by informant Sri Jatin Changmai on 03/12/11 alleging interalia that on 17/09/11 at about 6 o clock his father Tankeswar Changmai was hit by motor bike bearing No. AS-03G-9253, which had come in high speed, near Meleng High school. After that his

2 2 father was treated at Jorhat medical College, Dibrugarh Medical College and Guwahati Medical college; but he dies on 03/12/11 due to that accident. Informant stated that the rider of the motor bike promised to bear medical expenses of his father; so he kept on treating his father. But ultimately the expenses was not paid by the rider. There has been delay in lodging the ejahar due to being busy in treatment of his father. His ejahar was registered as Teok PS Case No. 325 of 2011 U/S.s 279/304A,IPC dated 05/12/11. 2) After investigation the police submitted Charge-Sheet against accused person Sri Manash Pratim Borgohain under Sections 279/304A, IPC. Accused appeared in response to process of the court and was allowed to go on bail. Copies of relevant documents, submitted with Chargesheet, were furnished to the accused person. Particulars of offences, punishable under Sections 279/304A, IPC were explained to the accused person to which he pleaded not guilty and claimed to be tried. 3) Prosecution examined eight witnesses and exhibited seven documents. Section 313, CrPC statement of the accused recorded. Defence has not adduced any evidence and pleaded for total denial. Accused contended that he stopped his motor bike at the place of occurrence seeing Tankeswar Changmai lying injured. He was caught out of suspicion. Heard arguments of the learned counsels for both sides. POINTS FOR DETERMINATION 4) The following points for determination arose before this court in the instant case- (i) Whether motor bike bearing No. AS-03-G-9253 met with an accident on 17/09/11 near Meleng Gohain Gaon high school? (ii) Whether the accused person was riding the motor bike bearing No. AS- 03-G-9253 on 17/09/11? If so, (iii) Whether the accused drove the said motor bike near Meleng Gohain Gaon high school in such a rash or negligent way that is likely to cause hurt or injury to any person?

3 3 (iv) Whether the accused person caused death of Tankeswar Changmai by committing an accident by driving the said motor bike bearing No. AS- 03-G-9253 rashly or negligently on 17/09/2011? On these points, the decision of this Court and reasons thereof are discussed below- DISCUSSION,DECISION AND REASONS THEREOF 5) Point (i) Whether motor bike bearing No. AS-03-G-9253 met with an accident on 17/09/11 near Meleng Gohain Gaon high school? Point (ii) Whether the accused person was riding the motor bike bearing No. AS-03-G-9253 on 17/09/11? If so, Point (iii) Whether the accused drove the said motor bike near Meleng Gohain Gaon high school in such a rash or negligent way that is likely to cause hurt or injury to any person? Point (iv) Whether the accused person caused death of Tankeswar Changmai by committing an accident by driving the said motor bike bearing No. AS-03-G-9253 rashly or negligently on 17/09/2011? For purpose of convenience, all the points are discussed together- (5.1) PW1 Jatin Changmai i.e. the informant stated that on a day in 2011 his father was coming home by pulling the bicycle after work. He was following his father. He saw his father lying on road. His bicycle was broken and blood was oozing from his nose, face, legs, hands and head. He was senseless. Accused was standing nearby alongwith his bike. Accused told PW1 that he had hit his (PW1) father. Many people assembled there. His father was brought to Jorhat Medical College and Hospital (in short JMCH) by 108 service. There he stayed for one day. After that he was brought to Sanjivani at Jorhat and Sanjivani at Dibrugarh for better treatment. After that he was brought to Gauhati Medical College and Hospital (GMCH). There he stayed for 8 days and discharged. Then he was not fully recovered. After staying at home for about 10 days he died. On the next day of death of his father he lodged

4 4 ejahar. Ejahar was lodged after about 3 months of the occurrence. Before that the accused was assuring to bear expenses of the treatment of his father. But that was not given. So, there was delay in lodging the ejahar. During cross-examination, PW1 stated that he did not see the the accused hitting his father. He does not remember the number of the motor bike. (5.2) PW2 Puniya Majhi stated that he does not know anything about the occurrence. About 3 years back police kept a bicycle at his house. He came to know that the accident occurred due to hitting of an old man named Dhuma by a motor bike. He came to know that Dhuma was coming by pulling his cycle and the motor bike hit from the back. He does not know as to who wa sowner of the motor bike. During cross-examination PW2 stated that he did not see the occurrence. He does not know as to who was riding the motor bike. (5.3) PW3 Bijit Majhi stated that he knows the accused, the informant and the deceased. About 2/3 years back he he came to know after coming from work that an accident had occurred between motor bike and bicycle. The cycle was kept at their house. He heard that Tankeswar Changmai was pulling the cycle; then the motor bike hit him. Later he heard that after about 5 months of the occurrence Tankeswar Changmai died. He does not know as to who had ridden the motor bike or as to how the accident occurred. During cross-examination, PW3 stated that after the occurrence for about 4 months Tankeswar Changmai was leading a healthy life. Police did not interrogate him. (5.4) PW4 Rajib Changmai i.e. nephew of the deceased person stated that on a day in 2011 he heard that a motor bike hit Tankeswar Changmai near Hulungapar High School while he was coming home after shopping by bicycle. He came to know that the motor cycle was being ridden by the accused person. The time of occurrence was evening hours. PW4 stated that he does not know as to how the motor bike was being ridden. After that Tankeswar Changmai was treated at JMCH, Jorhat and in Dibrugarh, Guwahati. He was recovered recovering. But after 2 months of the occurrence he died.

5 5 During cross-examination, PW4 stated that he does not remember as to who told him about the occurrence. After treatment the deceased was gaining back his good health. After about 5 months of being recovered he died. (5.5) PW5 Ranjit Murmu stated that he has neither seen anything nor heard anything. [On prayer of the prosecution, this witness has been declared hostile after perusal of his Section 161, CrPC statement.] He denied that he stated before the police- On 17/09/09 at about 6 PM he was at the gate of his house. At that time Sri Manash Pratim Borgohain of Gohain Gaon came from the side of Sulal Gaon by riding his motor bike bearing No. AS-03G-9253 in high speed and negligently, he hit Tankeswar Changmai and injured him severely on pacca road near Gohain gaon L.P. school. Tankeswar Changmai was brought to Jorhat Medical College. I saw the occurrence myself. This witness denied that he has deposed falsely. He denied that he has good relationship with the accused person. During cross-examination, PW5 stated that he has neither seen the occurrence nor heard about it. He does not know the accused. (5.6) PW6 Dhrubajyoti Borpatra stated that he knows the accused, the informant and the deceased. About two years back the accused met with with an accident while going by his motor bike. He heard that at about 7 PM the accident occurred while Tankeswar Changmai was going from market. The police seized the motor bike of the accused and took signature of PW6 on the seizure list. He heard that Tankeswar Changmai came home on being recovered after treatment. He died after 2½ months. He went to attend religious functions, cultivated during that period. During cross-examination, PW6 stated that the police did not show him the seized motor bike. (5.7) PW7 Dipen Changmai i.e. son of the deceased stated that accused hit his father. On a day in 2011 he was coming with his father by bicycle at about 3.30 PM after work. Near Meleng Gohain Gaon high school his father was hit by the accused, who was coming in high speed by his motor bike from the opposite direction. Accused was not putting

6 6 his feet on the break; but on the front guard. PW7 himself and the accused held his father. Accused called for 108 ambulance. Jatin Changmai brought the injured to hospital. Then his father was senseless. At about 12 midnight he got his sense back. He was treated at JMCH, Sanjivani nursing home, at Dibrugarh and at GMCH. PW7 stated that his father was brought back on being recovered a bit. After about 2 weeks of the same his father died. He saw the occurrence himself. During cross-examination, PW7 denied the suggestion that he did not see the occurrence. He does not remember the number of the motor cycle. After about 3 months of the occurrence his father died. He denied that after treatment his father was becoming able to do his works. (5.8) PW8 ASI Nurtaz Ali (I.O.) stated that on 17/09/11 while he was working at Lahdoigarh O.P. as ASI it was informed over phone from 108 service that a motor cycle had hit a person. In-Charge of the O.P. registered GDE No. 311 dated 17/09/11 and PW8 was entrusted with the responsibility of investigation. He went to the place of occurrence and there prepared sketchmap (Ext.3). He interrogated witnesses. The Pulsar motor cycle bearing No. AS-03-G-9253 was brought to police station by Sri Madhurjya Borgohain. The motor bike was seized. Motor cycle was sent for MVI report. He collected the MVI report (Ext.4). Motor bike was given in zimma of Madhurjya Borgohain. On 03/12/11 Tankeswar Changmai died at home. Inquest of his body conducted. On 04/12/11 his post mortem was conducted. He collected post mortem report (Ext. 6). On 03/12/11 jatin Changmai lodged ejahar at Lahdoigarh O.P. Accused was arrested and was allowed to go on bail. After completion of investigation, PW8 handed over the C.D. to I.C. Guleswar Sonowal. PW8 further stated that witness Ranjit Murmu told him- On 17/09/09 at about 6 PM he was at the gate of his house. At that time Sri Manash Pratim Borgohain of Gohain Gaon came from the side of Sulal Gaon by riding his motor bike bearing No. AS-03G-9253 in high speed and negligently, he hit Tankeswar Changmai and injured him severely on pacca road near Gohain gaon L.P. school. Tankeswar Changmai was brought to Jorhat Medical College. I saw the occurrence myself.

7 7 During cross-examination, PW8 stated that after about 3 months of the occurrence ejahar was lodged. (5.9) Now, accused admitted during his 313, CrPC statement that he arrived at the place of occurrence, where he stopped the motor bike. He is not denying that he was riding the motor bike. (5.10) Now, evidence of PW2, PW3, PW4 and PW6 is hearsay regarding the occurrence. PW5 turned hostile and showed complete ignorance regarding the occurrence. Only eye witnesses are the informant (PW1) and PW7. PW1 stated that he did not see the accident; but he arrived after the accident and saw his father lying being injured, where the accused was standing. PW7 stated that he saw the accused coming in high speed from the opposite direction and hitting his father. Accused was keeping his legs on the front guard.this statement of PW7 remained uncontroverted during cross-examination. So, prosecution has been able to prove that accused was riding the motor bike negligently and in high speed, and thereby he hit Tankeswar Changmai. Accused admitted his presence at the place of occurrence. So, when circumstantial evidence is taken into account it also shows that PW7 show the occurrence and immediately after the occurrence PW1 arrived and he saw that Tankeswar Changmai was lying and the accused was standing there. (5.11) So, the next question is whether the death of Tankeswar Changmai was caused due to the aforesaid accident? It is clear from the ejahar (Ext.1) itself that Tankeswar Changmai died on 03/12/11 i.e. after about 3 months of the occurrence. PW3 stated that after the accident the deceased person led a healthy life for a few months. PW4 also stated that Tankeswar Changmai was recovering from the injuries, caused by the accident. PW6 stated that Tankeswar Changmai was attending religious functions and also cultivated after the accident. So, evidence on record shows that the deceased person was able to lead a normal life after the occurrence. Prosecution has not examined the doctor who conducted the post mortem. So, without any specific evidence in this respect, the accident cannot be directly linked to his death.

8 8 (5.12) Defence referred to delay in lodging ejahar. As per PW8 the GDE number wass registered immediately after the occurrence and accordingly the preliminary investigation started. Major portion of investigation had been over by the time Tankeswar Changmai died. So, even though the written ejahar was lodged after death of Tankeswar Changmai, that did not affect the investigation. (6) In view of the above discussion, points (i), (ii), (iii) are decided in affirmative; point (iv) is decided in negative. Prosecution has been able to prove that the accused committed offence, punishable under Section 279, IPC; but it has failed to prove that the accused committed the offence under Section 304A, IPC beyond reasonable doubt. 7) As such, accused person Sri Manash Pratim Borgohain is acquitted of the charge under Section304A, IPC on benefit of doubt ; but he is convicted under Section 279, IPC. Now-a-days, there is a growing trend among the youths to ride motor bikes rashly and quite often negligently in the name of experiencing thrill of motor bike-riding. If such cases are dealt with leniently, that will encourage this kind of negligent behaviour. So,this court does not deem it proper to extend benefits of Probation of Offenders Act,1958 to the accused person. Convicted person is heard on the quantum of sentence. He stated that his father stays away and his ailing mother needs his support. After hearing, accused person is sentenced to rigorous imprisonment for a term of one month and to pay a fine of Rs. 1000/-; in default simple imprisonment for another fifteen days. The seized motor cycle and documents shall remain in hands of the zimmadar i.e. Sri Madhurjya Borgohain. Convicted person is entitled to a copy of the judgment free of cost. Given under my hand and the seal of this court on this the 6 th of September, day SMTI B. DUTTA J.M.(FIRST CLASS), JORHAT

9 9 APPENDIX (A)PROSECUTION EXHIBITS: (i) Exhibit 1- Ejahar (ii) Exhibit 2- Seizure list (iii) Exhibit 3- Sketchmap (iv) Exhibit 4- MVI Report (v) Exhibit 5- Zimmanama (vi) Exhibit 6- Post mortem report (vii) Exhibit 7- Chargesheet (viii) Exhibit 8- Section 161, CrPC statement of witness Ranjit Murmur (B)DEFENCE EXHIBITS: Nil (C)PROSECUTION WITNESSES: (i) PW1- Jatin Changmai (ii) PW2- Puniya Majhi (iii) PW3- Bijit Majhi (iv) PW4- Rajib Changmai (v) PW5-Ranjit Murmu (vi) PW6- Dhrubajyoti Borpatra (vii) PW7-Dipen Changmai (viii) PW8- ASI Nurtaz Ali (D)DEFENCE WITNESSES: Nil [B. DUTTA] JMFC, Jorhat