The central legal point established in the judgment is the requirement for cogent and consistent evidence to prove rash and negligent driving under Sections 279 and 304(A) of the IPC.

1. This revisional application, under Section 397 read with Section 401 of Cr.P.C. is directed against the judgment and order, dated 16.10.2012, passed by learned Addl. Sessions Judge, Court No.4, Agartala, West Tripura in Criminal Appeal No.24(3) of 2011 whereunder the judgment and order of conviction and sentence, dated 14.06.2011, passed by learned Chief Judicial Magistrate, West Tripura, Agartala in case No. GR 1149 of 2006 has been upheld.

2. Heard learned counsel, Mr. Sankar Lodh for the accused-petitioner and learned Addl. P.P., Mr. R.C.Debnath for the State-respondent.

3. Prosecution case is that on 07.11.2006 at about 12-30 hours Mukesh Mallick, a minor boy, aged about 4(four) years, with his mother Smt. Sikha Mallick, P.W.3, was on way to their house at Gandhigram and at that time one Auto truck bearing registration No.TR01K-0656 being driven rashly and negligently with high speed knocked down and ran over Mukesh on the road and as a result, Mukesh received fatal injury. Local people took him to G.B. Hospital where he was declared dead.

4. FIR was lodged by P.W.1, Chinmoy Dutta Roy just immediately after the occurrence and Airport P.S. Case No.70/2006, under Sections 279/304(A) of IPC was registered and after investigation Charge-sheet was filed against the accused-petitioner.

5. Accused was examined under Section 251 of Cr.P.C., in course of trial, by the learned Chief Judicial Magistrate for commission of offence punishable under Sections 279/304(A) of IPC to which he pleaded not guilty and claimed to be tried.

Prosecution examined 15 witnesses to prove the charges.

6. After closure of the prosecution evidence, the accused was examined under Section 313, Cr.P.C. and in his turn he declined to adduce any defence evidence.

Defence case is nothing but the denial of the prosecution case.

7. Learned Chief Judicial Magistrate found the accused guilty of the charges and sentenced him to suffer R.I. for one year six months under Section 304(A) of IPC. No separate sentence was awarded under Section 279 of IPC.

8. The revisional application is filed challenging the concurrent finding of two Courts below i.e. the trial Court and the appellate Court. While exercising power of revision, this Court is to see the correctness, legality and propriety of the judgment and order of conviction and sentence and the regularity of the proceedings before the Courts below. This Court is not ordinarily required to re-appreciate the evidence on record unless it is found that the trial Court and the appellate Court failed to appreciate the evidence on record and that some illegality and/or impropriety, as a result, has occasioned because of wrong appreciation of the evidence on record.

9. It is submitted by Mr. Lodh, learned counsel for the accused-petitioner that there is no iota of evidence of rash or negligent driving. Some witnesses said that the vehicle was driven with high speed. According to Mr. Lodh mere high speed does not necessarily amount to rash or negligent driving unless something else is added to the high speed. He has submitted that P.Ws 1, 3, 4 and 10 are the eye witnesses as claimed by them but out of them P.W.4 cannot be said to be eye witness because of making contradictory statement. Other three witnesses though claimed to be eye witnesses but from their evidence nothing can be discerned that the vehicle was driven rashly and negligently.

10. Learned Addl. P.P., Mr. Debnath, on the other hand, submitted that the accident occurred in a tri-junction of the road and in both the side of the road there were shops and it was a market place. The boy was run over by the vehicle. A presumption should be drawn that definitely the vehicle was driven rashly and negligently and otherwise the accident would not occur. According to learned Addl. P.P., had the driver was careful and cautious, the accident would not occur. Learned Addl. P.P., therefore, prayed for maintaining the conviction and sentence recorded by the trial Court