IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present:-

HON’BLE JUSTICE CHAITALI CHATTERJEE DAS.

CRA 720 OF 2014 MAHAMMAD SAIDUL SHAIKH @ MD. SAIDUL SK.

VS THE STATE OF WEST BENGAL For the Appellant : Mr. Debabrata Acharya, Adv.

Mr. Sital Samanta, Adv.

For the State : Mr. Debasish Roy, Ld. PP.

Mr. Saryati Dutta, Adv.

Last heard on : 29.07.2025 Judgement on : 27.10.2025 CHAITALI CHATTERJEE DAS, J. :-

1. This is an appeal filed by the appellant under Section 374(2) of Cr.Pc against the Judgement and order of conviction dated 21.11.2014 passed by the Learned Additional District and Session Judge, 24 Parganas South at Alipore in Sessions Trial no. 1 (1) /13 whereby the appellant was convicted for the offence committed under Section 304-A of IPC and sentenced to suffer imprisonment for two years and to pay a fine of Rs.5000/- only in default to suffer simple imprisonment for further 6 months.

Facts of the case

2. Shorn of any unnecessary details the case of the prosecution is that on September 1, 2009 at about 18.50 hrs when a scooterist namely Debu Prasad Mitra aged about 65 years was plying on R.13 Avenue ,Kolkata - 26 ,a Private Bus ,Route NO. -76 Regd. no. WB -19A 4360 was coming behind the scooter in the same direction and the driver of said private bus drove the vehicle carelessly and recklessly and hit the scooter from back as a result scooterist fell down and the bus run over his left leg causing amputation .He was removed to S.S.K.M hospital immediately but E.M.O on duty declared as brought dead. The S.I Ram Bihari Upadhyay of Tollygaunge P.S. lodged the complaint and on that basis of such complaint Tollygaunge P.S. Case started under Section 279/427/304 I.P.C and after completion of investigation submitted the charge-sheet under Section 279/304 (part-II) OF I.P.C and the charges being exclusively triable by the Sessions Court it was transferred to the Learned Trial Court after commitment where the charge was framed by the Learned Court under the aforesaid Section .The contents of the said charge were read over and explained to him to which he pleaded not guilty and claimed to be tried and hence the trial commenced .The Learned Trial Court after considering the evidences and the facts and circumstances passed the order of conviction against the appellant sentencing to suffer Rigorous Imprisonment for a period of two years with a fine of Rs 5000/- . Being aggrieved thereby this appeal has been filed.

Submissions

3. The learned advocate representing the appellant argued that no fatal squad traffic police F.S.T.P lodged the complaint and the information as alleged was received from Tollygunge traffic guard .The P.W. 2 is not the owner of the vehicle and claimed to be the owner by virtue of power of attorney and his declaration was not seized by a seizure list. Notice under Section 133 of the Motor Vehicles Act was not served upon the owner. The evidence adduced by the witness did not make out a case of rash and negligent driving and P.W. 3 claiming to be the eye witness, were never examined by the I.O .P.W. 6 did not produce any document to show that he was on duty. P.W. 4 did not support the prosecution case that the bus was plying rashly and negligently. P.W. 13 the I.O did not examine the conductor.

4. The Learned Advocate relied upon the decision reported in State of Maharashtra vs. Vijay Sadanand Shenoy1,Nageshwar Shri Krishna Ghobe vs. Sytate of Maharashtra, 1973 SCC (Cri) 664, Braham Dass vs. state of Himachal Pradesh, (2009) 2 C Cr LR 547. It is the further contention of the Learned Advocate that whether the scooterist had a valid licence or not was never ascertained and the investigation was perfunctory as failed to ascertain who was the actual driver and whether on account of the fatal turn by the scooterist the accident happened .It is further submitted that that in this case in the event the order of conviction is affirmed the provision of Probation Act if can be applied as the punishment is for