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IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLREV No. 695 of 2007

An application under Section 401 read with Section 397

of the Code of Criminal Procedure, 1973.

---------------

AFR

Baburam Majhi

...… Petitioner

-Versus-

State of Odisha

...…. Opp. Party

Advocate(s) appeared in this case:-

_______________________________________________________

For Petitioner

:

Mr. Sailesh Das, Advocate

(Amicus Curiae)

For Opp. Party :

Mr. S.K. Mishra,

Addl. Standing Counsel

_______________________________________________________

CORAM:

JUSTICE SASHIKANTA MISHRA

JUDGMENT

20^th June, 2022

SASHIKANTA MISHRA, J.

The petitioner in the present revision calls in

question the correctness of the judgment dated

09.02.2007 passed by learned Sessions Judge, Koraput

at Jeypore in Criminal Appeal No.84 of 2006, whereby,

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the judgment of conviction and sentence passed by

learned J.M.F.C., Kotpad in G.R. No. 120 of 1999 was

confirmed. As per the said judgment, the trial Court

held the petitioner guilty of the offence under Sections

279/337/304-A of IPC and sentenced him to undergo RI

for six months and to pay a fine of Rs.500/-, in default,

to undergo further R.I. for one month on each of the

counts under Section 279/337 of IPC and to further

undergo R.I. for two years and to pay a fine of

Rs.1000/-, in default, to undergo R.I. for two months for

the offence under Section 304-A of IPC.

2.

The prosecution case, in brief, is that on

29.11.1999 at about 7.30 a.m. the petitioner was

driving a Commander Jeep carrying 15 passengers,

which capsized on the road leading from Potroguda to

Miriguda near a pond known as Kenduguda. As a

result, one Kamalu Samarath died and other occupants

sustained bodily injuries. The matter being reported to

police, Kotpad P.S. Case No.120/1999 was registered

followed

by

investigation.

On

completion

of

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investigation, charge sheet was submitted against the

petitioner under Sections 279/337/338/304-A of IPC.

3.

The petitioner faced trial in the Court of

learned J.M.F.C., Kotpad, during which 18 witnesses

were examined along with other documentary evidence

adduced by the prosecution. After going through the

evidence on record, learned Court below held that there

was no rashness on the part of the accused driver but

he was negligent because despite the fact that the road

condition was bad and there were rain-cuts in the road,

the accused should have been more careful in driving

the vehicle carrying 10-12 passengers. Learned Court

below further applied the doctrine of Res Ipsa Loquitur

to hold that the defence could not dislodge the

prosecution allegation. It was however held that the

offence under Section 338 was not proved, but the

offence under Sections 279/337/304-A are clearly

proved. As such, the petitioner was convicted for the

aforementioned offences and sentenced as aforesaid.

4.

The petitioner carried the matter in appeal to

the Court of Sessions mainly contending that the

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allegation of rash and negligent driving was not

adequately proved. Learned Appellate Court perused the

evidence on record and held that the MVI had ruled out

the possibility of any mechanical failure of the vehicle

and had also opined that the accident occurred due to

rash and negligent driving of the accused. Since such

evidence of the MVI had not been disputed, the same

stood automatically corroborated. Learned Appellate

Court further relied upon the doctrine of Res Ipsa

Loquitur to hold that the driver had not adduced any

evidence independently to show that in spite of care and

caution on his part, the accident had occurred. It was

further held that as the road condition was not good,

care and caution was expected from the driver while

driving the vehicle. On such reasoning, learned