In the Court of 5th Judicial Magistrate at Bankura, Dist. Bankura. PRESENT: Mr. Sk. Md.

. Arif Hasan, 5th J.M., Bankura. G.R. Case No. 84/10 T.R. No. 210T/10
State of West Bengal v/s Manu Bauri. JUDGEMENT DELIVERED ON: February 28, 2014 Author: Mr. Sk. Md. Arif Hasan, 5th J.M., Bankura
Accusations: u/s 279/338/427/304A of I.P.C.

JUDGEMENT
Facts are many, but truth is oneRabindra Nath Tegore. Fact behind this action: 1. This case arises out of a tragic road accident which took place on February 04, 2010, evening when a truck vide regd no WB37A-6720 crashed directly from the opposite side

into the front of an ambassador having regd no WMC-2176. On this evening Mr. Biswajit Barat, CIC, NRDMS, Bankura was going to Beliatore through the Bankura-Durgapur State Highway. He was on Govt. Duty. He was going by the ambassador having regd no. WMC2176. It was a Govt. pool car on duty of District Magistrates establishment. Driver Yakub Ali Khan was driving the car. He was the paneled driver of said establishment and was driving the car as a part of his duty. 2. Yakub, the deceased, was driving the car along left side of the State Highway. Mr. Barat was on the back sit of the ambassador car. Around 07:00pm Yakubs car reached near Bikina village. His hands were on steering. Suddenly he noticed a truck is coming from the opposite direction. He noticed that its coming by the side of the road along which he was driving i.e. the right side of the road for the truck or in other words, from the wrong side for the truck (left side would be the proper route for the truck). It was the truck whose regd No is WB-37A-6720. Mr. Barat also noticed this. Yakub instantly pushed break, but by this time the truck ran into his car. It crashed with the ambassador directly on the front of it. The front portion of the ambassador got heavily damaged. Yakub, the driver of ambassador, got frozen in the seat. The steering went (trimmed) directly into his abdomen. Seeing this the driver of the truck flee away instantly, leaving the truck there. Those who saw this from distance rushed to the spot. SDO, Bankura was informed. He rushed to the spot. They tried to rescue Yakub and Mr. Barat. The accident injured Yakub severely. Steering of the ambassador went so strongly in his abdomen that he could not be rescued for a long time. He lost his sense in the car. Mr. Barat also got injured. Yakub was taken to hospital immediately after rescue. It was Little Heart hospital. Mr. Barat was also treated there. But to the misfortune of Yakubs parents, he expired within a few hours in the hospital. He expired around 01:00am on February 05, 2010. The investigation, inquiry and examination u/s 251Cr.P.C: 3. Mr. Barat, the defacto complainant, lodged one FIR with Bankura PS on February 05, 2010. It was lodged against unknown accused mentioning the unknown accused as driver of the truck having regd no. WB-37A-6720. So, investigation was started. The I/O seized the offending truck as well as the ambassador, which Yakub was driving, from the Place of Typed & Printed by me: 5th J.M., Bankura. Page 1 of 15

Occurrence [henceforth referred to as P/O]. It was seized on February 05, 2010. Then, on February 10, 2010 Mr. Bamdeb Gorai, the owner of the truck, produced the D/L of Manu Bauri, the accused, before the I/O and he seized it accordingly. On the very same date, Manu Bauri, the accused, himself surrendered before the then Ld. CJM admitting that he was the driving the truck when the accident took place. Later Ld. CJM refused to accept his surrender, though initially he had taken him into custody. He refused on the ground that his signature in vokalatnama does not match with the signature on seizer list dt 10-02-2010. He probably did not notice that the D/L was produced by the owner of the truck and the seizer list contains the truck owners signature and not of Manu Bauri. Nevertheless, he was then arrested on February 13, 2010 and thereafter released on bail by Ld. CJM, Bankura on that very day. In course of investigation the I/O seized documents relating to the truck viz. R/C book etc on February 16, 2010. Those documents were produced by the owner of the truck before I/O, which he later seized. After completing investigation I/O filed charge sheet seeking criminalization of Manu u/s 279/338/304A/427 IPC. Subsequently, after supplying copies to Manu Bauri u/s 207 Cr.P.C., the case was transferred to my court for trial and disposal. Ld. Predecessor PO of this Court from the materials available on record, prima facie found a case u/s 279/338/304A/427 of I.P.C. has been made out. Accordingly, she read over and explained the substance of accusations to Manu Bauri in his mother tongue. To this he pleaded his innocence and claimed trial. Hence the trial began. Defence: 4. The accused during cross examination took the defence that the truck vide regd no. WB37A-6720 did not dash the ambassador. He took another defence that the accident was not caused for the faulty driving of Manu and Mr. Barat lodged the FIR falsely. Trial: 5. The prosecution tendered the following seven witnesses in evidence: Biswajit Barat (defacto Complainant) PW-1. Gurupada Gorai PW-2. Mahadeb Gorai PW-3 Ayub Ali Khan PW-4. Ananta Kr Kundu PW-5. Bamdeb Gorai(owner of the truck) PW-6. Barun Debnath PW-7. 6. The prosecution proved the following documentary evidences during trial: The written Complaint dt 05-02-2010 Exbt.-1. The Signature of PW-1 upon written complaint dt. 05-02-10 Exbt.-1/1. The Signature of PW-2 upon seizer list dt. 05-02-10 Exbt.-2. The Signature of PW-5 upon seizer list dt. 05-02-10 Exbt.-2/1. The Signature of PW-3 upon seizer list dt. 10-02-10 Exbt.-3. The Signature of PW-7 upon seizer list dt. 10-02-10 Exbt.-3/1. The Signature of PW-3 upon seizer list dt. 16-02-10 Exbt.-4. The Signature of PW-5 upon seizer list dt. 16-02-10 Exbt.-4/1. The Signature of PW-6 upon seizer list dt. 16-02-10 Exbt.-4/2. 7. I had examined Manu Bauri u/s 313 Cr.P.C. I had also asked him if he wants to give any defence evidence or not; but he declined to tender any witness or other evidence. POINTS FOR DETERMINATION 8. With reference to factual matrix, I would frame the following points for deciding this
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case: (i) Is Manu Bauri guilty of committing crime u/s 279/338/304A/427 of I.P.C.? (ii) Has the prosecution been able to prove him guilty for any or all of the above crimes beyond all reasonable doubts? DECISION WITH REASONS 9. For convenience, I would take both the points together. 10. So far as the evidence on record is concerned, the prosecution could produce seven witnesses out of whom Mr. Barat (PW-1) was the sole eye witness of the accident. The other one who could have been an eye witness of this case had expired, as Mr. Barat said, within a few hours of the incident as a consequence of the accident. He was the co-victim of this accident. He was Yakub Ali Khan. I would make it clear that except Mr. Barat (PW-1) and Ayub Ali Khan (PW-4), all other witnesses are mere seizer list witnesses who did not see the accident. They also did not say anything touching the manner of accident or like issues. They merely proved the seizer lists viz seizer list dt 05-02-10, 10-02-10 and 16-02-10. 11. Having read the entire evidence of Mr. Barat (PW-1), I found it to be strong enough. He was the sole surviving eye witness of the accident. He was present in the ambassador, a Govt pool car, on which the offending truck crashed into. He also got injured in the accident, though not so severely like Yakub. There are more reasons, for which his evidence inspired my confidence. I would state them one by one. The three main reasons for believing his evidence are: 1st, I did not find any discrepancy in his entire evidence i.e. his examination-in-chief and cross examination. I did not find any discrepancy with his evidence and that of other witnesses. 2nd, He did not have any animosity with Manu Bauri; at least Manu did not raise any such plea of animosity. 3rd, Why would an injured victim falsely implicate any other driver sparing the true culprit? Let me say at once that there is no law which directs the courts to disbelieve the witnesses from the very beginning and to raise eyebrows on their evidences looking into them with doubtful eyes. It is only when there are significant discrepancies in a witnesss evidence or for some other reason his evidence becomes doubtful, the courts are permitted to look into the evidence of such witnesses with doubtful eyes and insist for corroboration. Nevertheless, the gist of Mr. Barats evidence is that on February 04, 2010 he was going through the State High-way running from Bankura towards Beliatore, on a Govt. pool car. It was an ambassador. Their ambassador was being driven along the left side. When the ambassador reached near Bikina, the truck having regd no. WB-37A-6720 suddenly came from the opposite direction and dashed their car from the front. The truck was being driven along the wrong side of the road and was being driven in a very rash and reckless manner. When the truck dashed their ambassador, it was around 07:00pm. As a result of the accident Mr. Barat received injuries below his left eye and chest. But the condition of the ambassador driver was very serious. The steering had gone inside his abdomen. They both were admitted at Little Heart hospital. The front portion of the ambassador got seriously damaged. So, this evidence would suggest the following four facts: a) The truck, having regd no WB-37A-6720, dashed the ambassador on the State Highway around 07:00pm on February 04, 2010, near Bikina. b) The ambassador was going along the proper side, but the above truck was coming from the wrong side and clashed with the ambassador from opposite direction face
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to face. c) The truck was driven very rashly and in a dangerous manner. d) As a result of the accident, the front portion of the ambassador got seriously damaged and Mr. Barat received injuries to his chest and below his left eye. The driver of the ambassador also got injured. His condition was very serious. The steering of the ambassador went right inside his abdomen. Both Mr. Barat and the driver were admitted to Little Heart Hospital. 12. It is important to notice the cross examination of Mr. Barat. They are few denials only. However, I have been referred to one cross examination of Mr. Barat where he admitted that he did not write in his FIR that the truck was coming from the wrong side or his car was going along left side of the road. Mr. Ranjit Biswas, Ld. Defence Counsel, by referring this intended to show a contradiction in Mr. Barats evidence from his earlier statement. It is true that the I/O did not record 161 statement of Mr. Barat. So, the FIR is the only available document to show Mr. Barats earlier statement. Having read the entire FIR, I do not believe that this omission could affect Mr. Barats credibility in any manner. The written complaint contains averment regarding rash and reckless driving by the driver of the offending truck (WB-37A-6720). While lodging the FIR what Mr. Barat was doing, was giving a concise intimation or information to the police about the crime. He was not writing any encyclopedia about the crime or incident. The statement in FIR that the offending truck was driven recklessly is sufficient to cover the matter regarding the driving of the truck along wrong side. [see, Dharmender Singh v. State of UP 1998 Cr.L.J. 2064(All); Alamgir v. State (NCT, Delhi) 2003 (1) SCC 21; Tehsilder Singh v State of UP AIR 1959 SC 1012; Bharwada Bhaginbhai Hirjibhai v. State of Gujrat AIR 1983 SC 753; Ravi Kapoor v. State of Rajasthan, Criminal Appeal No 1838 of 09 (Supreme Court)]. 13. There is another piece of evidence available on record regarding the accident scene. It is Ayub Ali Khans evidence. His evidence has two parts. One is about the crime scene which is absolutely corroborative with Mr. Barats evidence. But I would not give any independen t weight to Ayubs this evidence. The reason is simply that it is hearsay evidence which is not coming within the scope of res gestae. Ayub admits in his cross examination that he did not see the accident in his own eye. He heard about the accident in evening around 08:00pm. Nevertheless, the other part of his evidence relating to post accident factums is direct evidence. He said in his cross examination: I went to hospital after hearing about the accident. So, it is quite natural that he has direct knowledge or in other words he saw the post-accident facts which happened in the hospital. The gist of this other part of his evidence is that after the accident both Mr. Barat and the driver Yakub were admitted to Little Heart Hospital. Later the driver Yakub died in hospital. This evidence has two important aspects. One is that it corroborate Mr. Barat on a material point that both Mr. Barat and the ambassador driver were admitted in the Little Heart Hospital. The 2nd is that the name of ambassador driver was Yakub which Mr. Barats FIR also speaks and Yakub died in hospital as a consequence of the tragic accident. The cumulative effect of these evidences of Mr. Barat and Ayub, therefore, suggest the following fact: On February 04, 2010, Mr. Barat was going through the State Highway running from Bankura towards Beliatore. He was going by an ambassador and Yakub was driving it. The ambassador was going along the proper side of the road, i.e. along the left side. A truck having regd no WB-37A-6720 was coming from the opposite side and it was very rashly driven along the wrong side of the road. The truck crashed into the ambassador (face to face) around 07:00pm near Bikina. As a result of the accident, steering of the ambassador
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went right inside Yakubs abdomen. Mr. Barat also received injuries on his chest and below his left eye. They both were admitted to Little heart Hospital. But Yakub died very soon in the hospital. The seizer list dt 05-02-2010 also corroborates with these facts with regard to the place of occurrence and the identity of offending truck. It shows that the truck having regd no. WB37A-6720 and the ambassador found on road near Bikina. Let me say at once that the court should only concern with the quality of evidence and not insist upon the quantity of it. Evidence of a lonely witness is enough, if he is otherwise believable. The court should not hesitate in convicting an accused relying upon such evidence of sole witness. [see, Kartick Malbar v. State of Bihar 1995(3) All India Crl. Law Reporter, page 622]. I have, therefore, no doubt that the accident happened between the truck having regd No. WB-37A-6720 and the ambassador having regd no. WMC-2176 and that it happened in the manner which I said above. 14. But the important question is not how the accident happened. It is rather, what was the cause of this accident and damage. Was it the rashness and negligence of the driver of the offending truck? If it was his bad driving, then if the negligence is blameworthy as a crime? 15. All negligence, no doubt, would not come within the scope of crime. So far I believe, it should be something more than a mere breach or omission to take duty of care which the party at fault owes to the victim and thereby crossing the limits of tortious liability it becomes blameworthy and enters into the arena of criminal activity. It is true that our Indian Penal code did not define the word rash or negligence; but few western countries like USA has maintained this distinction between mere civil negligence and criminal negligence defining the term criminal negligence in their statute. The western statute, to which I particularly desire to refer in this regard, is the Penal Code of New York, USA: Article 15, New York Penal Code: Sub-Article 15.05: Culpability; definitions of culpable mental states. The following definitions are applicable to this chapter: *************** 3. "Recklessly": A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto. 4. "Criminal negligence": A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. [visit: http://law.onecle.com/newyork/penal/PEN0P1TBA15_P1TBA15.html ] 16. The other countries like UK, whose penal statue did not define the term negligence, has also maintained this distinction between mere negligence and criminal negligence through judicial authorities. The best authority on this distinction is Andrews v. Director of Public
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Prosecution (1937), 2 All E.R. 552. Here, Lord Atkin said: simple lack of care such as will constitute civil liability is not enough. For purposes of criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied reckless most nearly covers. It is important to notice the language of s.279 IPC. It has qualified the word negligence with the phrase as to endanger human life or to be likely to cause hurt or injury to any other person. I can, therefore, not believe that the negligence as crime has some other m eaning in our country than the meaning accepted by USA or UK. The negligence as a crime must, therefore, be gross negligence or failure to perceive a substantial risk or danger. But there still remains the question- what should be this standard of perception of risk? Should it be subjective or objective? Manu, the accused, in this case took the defence that his fault did not result the accident, though he did not take the defence of mechanical failure [see, PW1s cross examination]. By this defence case he tried to advance a two-fold defence. One is of course that I was doing my best, but the God had already wrote the accident on our fate. The other was contributory negligence. Let me say at once that in a criminal trial the defence of contributory negligence has no place, though it might be a mitigating factor for assessing the quantum of punishment. [see, 27 Cr.L.J. 257; Kanshis Case 27Cr.L.J 566]. So far as the standard of perception of risk is concerned, criminal law insists that every person should attain an objective standard measured by the standard of a reasonable man of normal prudence. That is shown by McCrone v. Riding [1938] 1 All ER 137, where a learner-driver "was exercising all the skill and attention to be expected from a person with his short experience", but he knocked down a pedestrian. He was charged with driving "without due care and attention" contrary to section 12 of the Road Traffic Act, 1930. The Magistrates acquitted him, but the Divisional Court directed them to convict. Lord Hewart, Lord Chief Justice, said that the "standard is an objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway. It is in no way related to the degree of proficiency or degree of experience attained by the individual driver." 17. Again in Regina v. Evans [1963] 1 Q.B. 412, an experienced driver was overtaking another car at the dip in the road. He crashed head-on into an oncoming car and the driver of it was killed. He was charged with causing death by driving in a Banner dangerous to the public, contrary to section 1 of the Road Traffic Act, 1960. Mr. Justice Salmon, as he then was, directed the jury that "even though the dangerous driving was caused by slight negligence, the slightest negligence on his part, he is guilty." The Court of Criminal Appeal affirmed the conviction, and said: "If a driver in fact adopts a manner of driving which the jury think was dangerous to other road-users in all the circumstances, then, on the issue of guilt, it matters not whether he was deliberately reckless, careless, momentarily inattentive, or even doing his incompetent best. Such considerations are highly relevant if it ever comes to sentence." In India also the same principle has been adopted. [see, Sayed Akbar v. State of Karnataka (1980) 1 SCC 30; Bhalchandra Waman Pathe vs. State of Maharashtra 1968 Mh.L.J. 423] So the criminal law on negligence is clear. No one would dream of throwing any doubt on it. Return to the case 18. The criminal negligence, no doubt, is to be inferred from the attending circumstances. In this case, as I already found, the driver of WB-37A-6720 was coming along the wrong side (right side) of the road from the opposite direction of the ambassador (WMC-2176). The
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road was not a mere metal road. It was Bankura-Durgapur State Highway. The minimum speed of any vehicle on such highway must be between 60km per hour to 80km per hour. The time was 07:00pm. The road must, therefore, be dark and except the headlights of the plying vehicles, there would not be any other source of light. Any reasonable driver in such a situation must perceive that if he drive any truck along the wrong side of the road, there is a huge risk of any accident and the same may happen at any moment, especially when the time is night and the road was a Highway. I can, therefore, not believe that the negligence or recklessness of the driver of WB-37A-6720 was not a gross deviation from the normal standard of an ordinary and reasonable driver or in other words the negligence was not a criminal negligence. It is important to note the seriousness and the effect of the accident. The steering of the ambassador went straight into the abdomen of Yakub and he could not be rescued for a long time for such trimming of the steering into his abdomen and within a few hours he expired. The evidence of Mr. Barat clearly suggests that the front portion of the ambassador had highly been damaged in the accident. So, I have no doubt that the speed of the truck was very high and the accident was a tragic accident. The maxim res ipsa liquitur i.e. the accident speaks for itself, no doubt, is a rule of evidence, but it has application in case of such severe accident also. If I were to decide this case without having regard to the recent development of criminal law on this maxim, I would not have applied this maxim in this case till all the requirements of circumstantial evidence have fully been satisfied. I would have referred to Sayed Akbar v. State of Karnataka (1980) 1 SCC 30. I would also have referred to the Malaysian Federal Courts decision in Lai Kuit Seong v Public Prosecutor (1969) ACJ 341. But, neither am I deciding this case in a Malaysian Court; nor, the law is standing still. The doctrine is now equally applicable to a criminal case as much it is applicable in civil cases provided that the basic facts and attending circumstances are proved. [see, Rattan Singh v. State of Punjub. AIR 1980 SC 84; Thakur Singh v State of Punjub (2003) 9 SCC 208; Ravi Kapoor v. State of Rajasthan, Criminal Appeal No 1838 of 09 (Supreme Court); P. Rathinam Nagbhusan Patnik v. Union of India AIR 1994 SC 1844]. The attending circumstance and basic facts which I said above has been established in this case. The seriousness of the accident as well as the driving of the truck along the wrong side of the road in dark night on a State Highway coupled with the cumulative effect of the above doctrine leaves no scope of any alternative hypothesis than gross criminal negligence of the driver of WB-37A-6720. I would, therefore, hold that the driver of WB-37A-6720 was guilty of criminal negligence and his gross negligence was the root cause of the accident dated February 04, 2010 whereby Yakub had died. 19. It is true that the mechanical experts report have not been proved in this case. But, I do not think that the report is necessary in the fact and circumstances of this case. Let me say at once that the criminal courts does not sit to do justice to the accused only. It is also under the duty, as I believe, to do justice to the victim also. It is true that the court shall be diligent to see that an innocent may not be punished. But it is equally true that the court is also to see that a guilty man may not be allowed to evade punishment. Nothing would be more unjust than to insist upon the prosecution to prove such facts does not exist which, if exist would be a defence for the suspect. The mechanical experts report mainly serves two purposes. 1st, it shows the severity of the accident and 2nd, the prosecution could show by this that the accident did not happen due to mechanical failure of the offending vehicle or that avoidance of the accident was not beyond the control of the driver. As I already said, the negligence as a crime is not dependent upon the fact as to if it was deliberate fault of the driver or not. It is
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simply a failure to perceive a substantial danger. I would have seen this non-production of the mechanical experts report as a ground favouring the defence, if any defence of mechanical failure were taken by the accused. No witness was even put with any suggestion to the effect that the accident was happened due to mechanical failure of the offending truck. So far as the severity of the accident is concerned, Mr. Barat had proved the severity with sufficient certainty. I dont think any corroboration is necessary in this regard when an eyewitness has given believable evidence and when he was found to be otherwise trustworthy. 20. Until now I had found that the driver of WB-37A-6720 was guilty of criminal negligence and he is criminally responsible for the accident and the death of Yakub, which was a direct consequence of the accident dated February 04, 2010. But there still remains a question- was Manu driving the truck having regd. no. WB-37A-6720 when it caused the accident? It is true that none of the witnesses could identify Manu Bauri, the accused. How could they? Except Mr. Barat none was present at the spot. Mr. Barat said in his evidence that he could not recognise the driver. I can understand his inability to recognise the driver. How could he see the driver of offending truck? He was on the back seat of the ambassador. I do not expect that a person on the back seat of a car would attentively keep watch upon the vehicles plying around his car. It is important to note the time of accident and the direction from where the truck came just a moment prior to the accident. It was 07:00pm, i.e well past evening. The truck came directly from the front. It would not be possible for any person on the back seat to see the driver of the truck. Perhaps Yakub might have seen the driver of the offending truck. But he is no more. I can, therefore, not expect him to come and depose on dock about the identity of the driver of WB-37A-6720. But, I must say, Ld. APP was very negligent while examining Bamdeb, the owner of the truck (PW-6). He did not ask a single question with regard to the driver of his truck on February 04, 2010. This brought me before a question- how could Manu Bauri be said to have been driving the truck at the time of the accident? Then my attention went to the 1st order of this case dated February 10, 2010 and the seizer list dated February 10, 2010. The seizer list dt. 10-02-10 shows that Bamdeb (PW-6) had produced the driving license of Manu before the I/O in the morning of February 10, 2010. He said to I/O that Manu was driving the offending truck at the time of accident. This Bamdeb is the owner of the truck having regd. no WB-37A-6720, the offending truck. He took the truck in his custody under zimmanama and for this he filed petition in court on February 10, 2010 which was later allowed. The very 1st order of this case dated February 10, 2010 shows that Manu Bauri had voluntarily surrendered before Ld. CJM, Bankura after 10:30am pleading himself to be the accused, i.e. the driver of the offending vehicle at the time of accident and the then Ld. CJM, Bankura, took him into custody. The FIR was lodged against unknown driver and it only contains allegations against the driver of WB37A-6720 without mentioning any name. The police also could not trace the identity of the driver till February 13, 2010. It is another matter that later during bail hearing, i.e. after 2:00pm on February 10, 2010, his surrender was not accepted by Ld. CJM on the ground that his signature in vokalatnama and seizer list dt 10-02-2010 does not match and released him. Probably Ld. CJM did not notice that the driving license of Manu was produced before I/O by Bamdeb, the owner of the offending truck, and not by Manu himself. The seizer list would certainly contain signature of Bamdeb and not of Manu. Nevertheless, I am not entering into the controversy as to whether Ld. CJM wa s right or wrong in rejecting Manus
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bail and surrender petition; but this action of Manu i.e his voluntary surrender before Ld. CJM, Bankura, long prior to he was tagged in this case as accused cannot go without a legal consequence. The consequence could have been otherwise if he had preferred an application u/s 438 Cr.P.C before Ld. Session Judge. In that case it was open for him to plead that he had an apprehension of being falsely implicated in this case and out of that apprehension he approached Ld. Session Judge with application u/s 438Cr.P.C without pleading or admitting himself to be the driver of offending truck. But the consequence would be entirely different when he approaches Ld. CJM with surrender petition prior to he has been tagged in the case as accused. No doubt, it could never be interpreted as confession. But it would certainly amount to an admission that he was driving the offending truck at the time of accident though without any admission or inference as to his negligence in driving. I would give reason for this conclusion. Admission in Criminal case 21. The statute says a statement either oral or written which suggest an inference as to any fact in issue or relevant fact is an admission. [see, S.17 Evidence Act]. I need not to distinguish amongst admission and confession, which is altogether a distinct legal matter. Until such admission amounts to suggestion about makers guilt or any element of it, it would not be confession. But, there could be an admission in criminal cases without the same being a confession like what happened in this case. Mere silence may also amount to such admission in some situation. Quite a lot of people, however, think admission to be an exclusive subject matter of civil suits. But, it would be absolutely erroneous to say that admission is an exclusive matter of civil cases and in criminal cases it has no application. [see, I.T.O, Jind v. M/S Mangat Ram Norata Ram Narwana & anr (2011) 5 SCR 1137; Chandran v. State of Kerala 1986 Cr.L.J 1865; Sucha v R AIR 1932 Lahore 488; Nga Ba v. R AIR 1936 Rengoon 131]. In USA admission is quite strong evidence in criminal trial even though the same is made during trial by the suspect s counsel. [see, People v. Walker 198 N.Y. 329 (335)]. I do not think the Indian legislators has intended any such proposition that admission of a suspect cannot be used against him in criminal cases, otherwise the illustration (c), (d) and (e) would not have been appended to S.21 Evidence Act. There is nothing in S.58 of Evidence Act which restrict the reliance on admission in criminal cases. [see, Bhulan v. R AIR 1926 Oudh 245; Upendra v. R 40CWN 313]. I would, therefore, hold that an admission of an accused, especially when the fact admitted does not itself constitute any element of any crime by itself, could be used against him in a criminal trial, no doubt very cautiously. [see, I.T.O, Jind v. M/S Mangat Ram Norata Ram Narwana & anr (2011) 5 SCR 1137]. Admission by conduct, if possible? Has it any application in criminal cases? 22. Let me say at once that it is not necessary that the admission must be express. It could either be express or may be implied to be inferred from conduct. It is quite possible that an absolutely silent expression coupled with conduct and the situation may amount to admission under some circumstances and it would be as good as an admission made expressly. [see, State v. Sawyer 230 N.C 713; U.S. v Hoosier 542 F.2d 687; State v Sharbino 194 La 709 (Lousian), 1940; People v. Wright 210p (2d) 263]. All that is necessary is that it must be clear and unambiguous. This is shown by Sidney Lovell Phipson in his book Law of evidence (p. 130, 1st edition, 1892). There he wrote: a party's admission by conduct as to the existence or non-existence of any marital fact may always be proved against him. [see also, Tay, S804-816; AIR 1952 Ori 152; Page 212-213 of the book
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Evidence by Steven Emanuel; 5-13 of the book Defending Drinking Drivers, Vol-1 by John A. Tarantino & Walter J. Frajola]. Let me say at once that in criminal cases, prosecution, no doubt, is to prove the case beyond reasonable doubt. The evidence for this could very well be an implied admission of the accused to be inferred from his conduct. This admission may be proved by any other evidence or it may be available with the record. That is shown by our (Indian) Supreme Court in Income Tax Officer, Jind v. M/S Mangat Ram Norata Ram Narwana & anr (2011) 5 SCR 1137, where in a criminal case the conviction given by Ld. Chief Judicial Magistrate was set aside by both Ld. Session Judge and High Court. But Supreme Court restored the Judgement of Ld. CJM and approved the conviction. The division bench of the Supreme Court used the conduct of Hemraj, the accused, in not raising any dispute against the assessment of IT officer as an implied admission by conduct and applied the same as substantive evidence against him, though it was a criminal case. The Supreme Court said that even in criminal cases it is trite that admission is the best evidence against the maker and it can be inferred from the conduct of the party. Admission implied by conduct is strong evidence against the maker, but he is at liberty to prove that such admission was mistaken or untrue. Effect of admission: 23. The statute says, facts admitted need not be proved [see, S.58 Evidence Act]. The weight of such admission increases with the knowledge and deliberation of the speaker. [see, p.215-216, Phipsons Law of Evidence, 8th edition]. But, so far I believe, the court shall not treat such admissions as conclusive. The party making it, must have the option to rebut it. The admission especially in criminal cases, so far I believe, has the effect of shifting the onus upon the party making it as soon as the admission is proved or the court otherwise takes judicial notice of it. But in the absence of any explanation from the party making it, such admission would be taken as true and presume the admitted fact to have been proved. [Kishori v Chaltibai AIR 1955 SC 504; I.T.O, Jind v. M/S Mangat Ram Norata Ram Narwana & anr (2011) 5 SCR 1137]. Situation in this case 24. The FIR was against an unnamed driver of WB-37A-6720. The police was yet to trace out the identity of the driver. In such situation Manu Bauri, the accused, voluntarily sent his driving license to PS through the truck owner Bamdeb on the morning of February 10, 2010. On the same day he voluntarily surrendered before Ld. CJM, Bankura. This voluntary surrender before Ld. CJM could suggest the only thing that he was driving the offending truck at the time of incident. I would have thought of an alternative hypothesis, if instead of surrendering before LD. CJM he had approached u/s 438 Cr.P.C. In that situation there was a scope of alternative hypothesis that Manu preferred the 438 Cr.P.C application out of apprehension of being falsely implicated. But when he is approaching Ld. CJM and surrendering quite before his name was tagged in the case as accused, and when only an accused driver could surrender before a Magistrate in such accident case, then the only inference that could be drawn is that he was driving the offending truck at the time of accident and has surrendered admitting this fact of driving at the time of accident. This would, however, not any way admission of the guilt or in other words a confession. The guilt would only be established when such driver has been proved to be grossly negligent and such negligence caused the accident. Manu, the accused, could have rebutted this admission during trial. But he did not do this. He did not even cross examine any witness denying this particular fact of driving. He did not even take the defence, as I already said,
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that he was not driving the offending truck. Rather, he took the defence that the accident had not happened for his fault. In 313 examination also he did neither deny nor explained that he was not driving the offending truck at the time of accident. Rather, refused to explain the implied admission suggested by his conduct as aforesaid, when he was asked about it while 313 examination. I, therefore, have no doubt that Manu was the person who was driving the truck at the time of accident. As a final conclusion of the discussions which I made from paragraph 20 to 24 i.e this paragraph, I would, therefore, hold that Manu Bauri, the accused, was driving the offending truck vide regd no. WB-37A-6720 at the time of the accident dt. February 04, 2010, which resulted death of Yakub Khan, the deceased victim. Non-examination of I/O, if fatal for this action? 25. It is true that the I/O has not been examined in this case. Let me say at once that the nonexamination of I/O, no doubt, is a serious fault on the part of the prosecution, but for this fault the prosecution case may not fail always. It would not be correct to contend that if the Investigating Officer is not examined the entire case would fail on the ground that the accused was deprived of the opportunity to effectively cross-examine the witnesses and bring out contradictions. The case of prejudice likely to be suffered depends upon the facts of each case and no universal strait-jacket formula could be laid down that non-examination of Investigating Officer per se vitiate the criminal trial. [see, Behari Prasad v. State of Bihar AIR 1996 SC 2905]. The effect of non-examination of Investigating Officer has been considered by Indian Supreme Court in a series of cases. One of such case is Ram Dev v. State of U.P. 1995 Supp. (1) SCC 547. In this case it was held that it is always desirable for the prosecution to examine the Investigating Officer. However, non-examination of the Investigating Officer not in any way create any dent in the prosecution case much less affect the credibility of otherwise trustworthy testimony of the eye witnesses. 26. The same view was approved in Ambika Prasad v. State (Delhi Admn.) AIR 2000 SC 718, where it was held that the criminal trial is meant for doing justice, not just to the accused but also to the victim and the society so that law and order is maintained. It was held that a Judge does not preside over criminal trial merely to see that no innocent man is punished. A Judge presides over criminal trial also to see that guilty man does not escape. Both are public duties which the judges have to perform. It was unfortunate that the Investigating Officer had not stepped into the witness box without any justifiable ground. This conduct of the Investigating Officer and other hostile witnesses could not be a ground for discarding evidence of other witnesses whose presence on the spot was established beyond any reasonable doubt. So, non-examination of the Investigating Officer could not be a ground for disbelieving eye witnesses. 27. This issue was again considered in Bahadur Naik v. State of Bihar 2000 Cri.L.J. 2466, where it was held that non-examination of an Investigating Officer is of no consequences when it could not be shown as to what prejudice had been caused to the appellant by such non-examination. 28. So, the principle is well established. Let me say all that examination of I/O could serve is that he could give evidence about the P/O and its surroundings and the defence could get an opportunity to contradict the evidences of witnesses with their earlier statements which they made u/s 161 Cr.P.C. In this case, I do not think that the I/O could give any better description of the P/O than what is given by Mr. Barat. He was the only surviving person who was present at P/O from beginning to end of the accident. The I/O, no doubt, reached there much later than Mr. Barat, who probably called the police. Mr. Barat has already given
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believable evidence and described the P/O with sufficient certainty. The seizer list dated February 05, 2010, where under the offending truck and the suffered ambassador were seized, also corroborate his description of P/O. I would, therefore, hold that the Defence party did not suffer any prejudice on this score of P/O. I would have held Manu had been prejudiced, if anything had been recovered u/s 27 Evidence Act in this case. So far as the question of opportunity to contradict the witnesses with their earlier statements recorded u/s 161 Cr.P.C. is concerned, I do not think Manu had been prejudiced on this score in any manner. Except Mr. Barat none was present at the spot at the time of accident and none had given any evidence about the happening of the incident and except Mr. Barats evidence on this point, none had been relied on by me. So far as the scope of contradicting Mr. Barat with his statement u/s 161 Cr.P.C. is concerned, I would say, even if had the I/O been examined in this case, the defence would have not gotten any benefit. The I/O did not record any 161 Cr.P.C. statement of Mr. Barat. I did not find any with the record. This was, no doubt, a fault on the part of I/O. But for this dereliction of duty by the I/O, it would not be proper to acquit a guilty man when there is otherwise believable evidence on record establishing suspects guilt. [see, Karnel Singh v. State of MP (1995) 5 SCC 518; see also, Alamgir v. State(NCT, Delhi) 2003 (1) SCC 21]. This legal issue was much considered by the Supreme Court in Ram Bihari Yadav v. State of Bihar [(1998) 4 SCC 517] and Paras Yadav and others v. State of Bihar [(1999) 2 SCC 126]. In the former this was held: In such cases, the story of the prosecution will have to be examined dehors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the lawenforcing agency but also in the administration of justice. While in the later this was held: It may be that such lapse is committed designedly or because of negligence. Hence the prosecution evidence is required to be e xamined dehors such omissions to find out whether the said evidence is reliable or not. 29. So, the position of law is clear. No one would even dare to throw any doubt on it. To my mind, as a final conclusion of all that I have said, Manu Bauri, the accused, has not been prejudiced in any manner due to non-examination of the I/O. In the end, I would, therefore, hold him guilty. Nevertheless, so far the accusation u/s 338 IPC is concerned, I do not think it would be just to hold him guilty of this crime also. So far as the evidence is concerned, it no doubt established that Yakub had suffered grievous hurt as a result of the accident and within a few hours he succumbed to death. But, I think the crime u/s 304A is a much greater crime than the crime u/s 338 IPC so as to merge the same within it. The death of Yakub has in fact converted the crime u/s 338 IPC into the crime u/s 304A IPC. Nevertheless, Manu could still be held guilty of crime u/s 338 IPC, had Mr. Barat also suffered grievous hurt by the accident. But, so far as evidence on record is concerned, it establishes that Mr. Barat suffered a simpliciter hurt only. I would, therefore, hold Manu to be guilty of Crimes u/s 279/337/304A/427 IPC instead of crimes u/s 279/338/304A/427 IPC. 30. Hence, I do hereby ORDER that, Manu Bauri, the accused, has been proved guilty of committing crimes u/s 279/337/304A/427 IPC and he is hereby convicted for his crimes u/s 279/337/304A/427 of I.P.C. His bail bond is hereby cancelled and he is taken into custody. Let a copy of this Judgement be supplied to Manu Bauri, the convict, free of cost.
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Let another copy of this Judgement be sent to the appropriate authority, Motor Vehicle Department, for recording a noting of this conviction on driving License of Manu Bauri, the convict. Let the seized alamats, if any, be returned to the person entitled thereto after expiry of the appeal period. Nevertheless, hearing the convict of punishment point is desirable as per para 24 to 29 of the AP High Courts Judgement (Dilip Kulkarni & ors v. Bahadurmal Chowdary & sons 2005(2) ALD Cri 171), though not mandatory u/s 255 Cr.P.C. The pronouncement of sentence is hereby deferred for two hours accordingly.

(Sk. Md. Arif Hasan) Judicial Magistrate of 1st Class, 5th Court, Bankura. Dated: 28-02-2014 Later: 28-02-2014 Manu Bauri, the convict, was produced from J/C. Ld. App and Ld. Defence Counsel both are present. Hd. both the counsels and Convict. Considered. So far as the issue of punishment is concerned, Probation of Offenders Act, 1958 would be my first choice. It is true that the contagion of lawlessness may undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity, no doubt, is the prime object of law. [see, Legal Philosophies by JW Harris (2nd edition)]. I do not deny that Friedman in his "Law in Changing Society" said, "State of criminal law continues to be as it should be a decisive reflection of social consciousness of society". But, still the necessity of reintegrating the criminals with society and their rehabilitation to the society, so far I believe, cannot be ignored. All that is the task of a court, so far I believe, is to balance between all these irreconcilable issues and to impose an effective sentence and not the maximum or minimum sentence according to dictates of the judges individual morals. For this the judge should delicately balance all the mitigating and aggravating factors. No doubt, this is a difficult task, but somehow or other the court has to balance this. I do admit that to reach this conclusion the books Crime reason and History by A. Norrie and Sentencing and Criminal Justice by A. Ashworth (2005) helped me out a lot. But, there remains the question- what should be the guideline which criminal courts would follow for this balance? To my mind, the best criterion is the guideline given by US Supreme Court in Dennis Councle MCGDautha v. State of Callifornia: 402 US 183: 28 L.D. 2d 711. Their Lordships said: No formula of a fool proof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any fool proof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
I would have invoked Probation of Offenders Act, 1958 for Manu Bauri, the convict, if I had been oblivious of the direction of Honble Supreme Court given in a series of cases viz. Dilbar Singh v. State of Haryana AIR 2000 SC 1677, State of Karnataka v. Sharanappa
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Aregoudar AIR 2002 SC 1529, Alister Anthony Pareira v. State of Maharashtra (Criminal Appeal no 1318-1320 of 2007 decided on 12-01-12), B. Nagabhushanam v. State of Karnataka 2008 (3) RCR (Crl.) 50 etc. In all these cases the Supreme Court held that the benefit of the Probation of offenders Act shall not be given in cases u/s 304A IPC. I feel myself bound by these judgements. I would, therefore, not go beyond this direction. I would not, I am afraid, give any benefit of Probation of Offenders Act, 1958 to Manu. One paragraph of Dilbar Singhs case that I particularly desire to refer here is: Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304A IPC as attracting the benevolent provisions of Section 4 of the PO Act. While considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles. So far as the quantum of sentence is concerned, it is true that Manu was grossly negligent while driving the truck on February 04, 2010 and his negligence took the life of Yakub putting his entire family in a deplorable condition. Manu was not only driving along the wrong side of the road inattentively, but he drove as such during the night on a state highway. He did not even care to give any aid to the sufferers of his negligence, but fled away after the accident. Yakub, no doubt, would not return how sever sentence may be imposed on Manu; nor the deplorable condition of his family, which caused due to the death of Yakub, would be improved. But, at the same time some deterrence is necessary for the inattentive, negligent and callous drivers, most of whom are seen to have an I dont care attitude. I have no doubt that Manu also comes within such group of drivers. Nevertheless, the only mitigating factor in his favour is his decision of voluntary surrender. Having considered the entire scenario, I believe that if Manu is sentenced to serve 30 days S.I in J/C for each of his crime u/s 279/337/427 IPC, and is further sentenced to serve S.I of 6 months in J/C for his crime u/s 304A IPC, it would be sufficient. Accordingly, I would sentence him to serve the above sentences. Nevertheless, I think Yakubs wife and his legal representatives deserves some compensation. They, no doubt, are in deplorable condition, at least financially. No doubt, they were dependents of Yakub. Had Yakub not died for the gross negligence of Manu, they would have not fallen in such condition. Had Manu not so grossly negligent on the night of February 04, 2010, Yakub would have been alive till date. It was the grossly faulty and negligent actus reus of Manu which put Yakubs family in such deplorable condition. Having considered this aspect, I would exercise my equitable jurisdiction u/s 357 Cr.P.C. I think a compensation @ 30,000/- to be payable to Yakubs wife and his legal
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representatives by Manu would be just amount of compensation. One may raise a question about a Magistrates authority to award such amount of compensation and about receivers of it. Let me say at once that the answer is in S.357 itself. So far as the question of receiver of compensation is concerned, Yakub was no doubt a victim and his legal representatives by fiction of law represent him and his estate. [see, s.2 CPC]. So far as my authority to award compensation and the amount of it is concerned, S. 357(3) Cr.P.C is the answer. This section on one hand authorises a magistrate to award compensation to be paid by the accused to the person who suffered a loss or injury, if the sentence imposed on accused does not include fine. On the other hand, this provision does not limit the amount of such compensation to any upper limit like S.29 Cr.P.C does in case of fine. In this case I have not sentenced Manu to pay any fine. I can, therefore, certainly award any compensation which would be just and fair. The amount of damages, which I already assessed above, is a just and fair amount, in my opinion. I would, therefore, direct Manu Bauri, the convict, to pay 30,000/- to Yakubs wife or his legal representative as compensation against valid receipt thereof within two months from this day. If he fails to pay this amount, this court would enforce the order u/s 421 read with 431 Cr.P.C, if any application is made in this behalf. Hence, I do hereby, ORDER that, Manu Bauri, the convict, is hereby sentenced to serve thirty (30) days simple imprisonment in J/C for each of his crimes u/s 279/337/427 IPC and to serve another simple imprisonment for six (6) months in J/C for his crime u/s 304A of I.P.C. All the captive sentences shall run concurrently. Manu Bauri, the convict, is further directed u/s 357 (3) Cr.P.C. to pay 30,000/- to Yakubs wife or his legal representatives, as the case may be, as compensation against valid receipt thereof within two months from this day. In case he failed to comply with this compensation order, it may be recovered in terms of S. 421 of Cr.P.C. read with S. 431 of it and Yakubs wife or his legal representatives are

at liberty to initiate such proceeding in case of default of Manu Bauri, the convict, to pay the compensation. Inform Yakubs wife/ legal representatives accordingly. Let a copy of this Judgement be supplied to Manu Bauri, the convict, at once and free of cost. Let another copy of this Judgement be sent to the appropriate authority, Motor Vehicle Department, for recording a noting of this conviction on driving License of Manu Bauri, the convict. Let the seized alamats, if any, be returned to the person entitled thereto after expiry of the appeal period. The case is thus disposed of on contest. Note in concern registers. (Sk. Md. Arif Hasan) Judicial Magistrate of 1st Class, 5th Court, Bankura. Dated: 28-02-14.

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