Shri.T.M.Radhakrishnan Vs the State

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IN THE HIGH COURT AT CALCUTTA

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CRIMINAL REVISIONAL JURISDICTION

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[CIRCUIT BENCH AT PORT BLAIR]

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PRESENT : THE HON'BLE JUSTICE TIRTHANKAR GHOSH

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CRR/17/2025

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T. M. RADHAKRISHNAN	… PETITIONER
	VS.
THE STATE	… STATE
For the petitioner	: Mr. Rakesh Pal Gobind
For the State	: Mr. Sumit Kumar Karmakar
Heard on	: March 16, 2026 & March 17, 2026
Judgment delivered on	: March 20, 2026

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TIRTHANKAR GHOSH, J.

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The present revisional application has been preferred against the judgment and order dated 29^th November, 2024 passed by the learned Sessions Judge, Port Blair, South Andaman District in Criminal Appeal No. 06 of 2021. The Criminal Appeal was preferred against the judgment and order of conviction and sentence dated 16^th August, 2021 passed by the learned Judicial Magistrate, Second Court, Port Blair, South Andaman under sections 279, 338 and 304(A) of the Indian Penal Code (for short, IPC) wherein the learned Magistrate after holding the appellant guilty for the aforesaid offences sentenced him as follows :-

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(i) Simple imprisonment for one month along with fine of Rs. 1,000/- for the offence under section 279 of the IPC.

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(ii) Simple imprisonment for 1 month along with fine of Rs. 1,000/- for the offence under section 338 of the IPC.

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(iii) Simple imprisonment for 6 months and fine of Rs. 5,000/for the offence under section 304(A) of the IPC.

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Learned Appellate Court being the learned Sessions Judge, Port Blair in Criminal Appeal No. 06 of 2021 was pleased to dismiss the appeal and affirmed the judgment and order dated 16^th August, 2021 passed by the learned Judicial Magistrate, Second Court, Port Blair, South Andaman in G.R. Case No. 606 of 2013 (Trial No. 350 of 2013).

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The genesis of the case relates to Aberdeen Police Station Case No. 117/2013 dated 09^th April, 2013 wherein on the basis of an information furnished by one Inayat Ali the case was registered for investigation. The allegations made in the FIR were to the effect that the informant was residing at his house at Diary Farm and was involved in private work. On 09^th April, 2013 at around 05.00 hrs in the morning when he went to the side of the road to lay the pipe at that time he saw a bus coming from Diary Farm and heading toward the Diary Farm junction at a very high speed. The said bus hit a motorcycle which was coming from the VIP road toward the Diary Farm and also severely hit a person who was plucking the flowers near the electricity office. The said bus dashed the government iron railing, went ahead and fell in the drain near the

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electricity office thereby damaging the water connection. Immediately, he along with others took out the bike rider who was seriously injured due to the said accident and he was sent to the G.B. Pant Hospital for treatment. The boy who was sitting as the pillion rider and the person who was plucking flowers were picked up and kept at the side of the road and when the PCR vehicle arrived, both of them who were seriously injured were sent by the PCR vehicle to the G.B. Pant Hospital for treatment. On checking, the bus number was found to be AN 01 A 4252 and the motorcycle number was found to be AN 01 F 7018. It was alleged that the accident occurred as the bus driver was driving at a high speed in a negligent and dangerous manner for which three people present there was seriously injured and the government railing got damaged due to the accident.

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After registration of the said case, the police authorities commenced investigation on 09^th April, 2013 and on conclusion of investigation submitted charge sheet on or about 26^th June, 2013 under sections 279, 338 and 304(A) of the IPC read with section 3 of the Prevention of Damages to Public Property Act, 1984. The prosecution in support of its case relied upon 22 witnesses and 15 documents.

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Mr. Rakesh Pal Gobind, learned advocate appearing for the petitioner submitted that the background of the case requires to be considered before arriving at any harsh finding so far as the petitioner is concerned. Learned advocate for the petitioner submitted that the petitioner was not the regular driver of the said vehicle. It has surfaced in

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evidence that the regular driver was absent on the very date i.e. 09^th April, 2013 when the owner of the vehicle forced the petitioner to drive the vehicle for the day. The petitioner found that the bus was not in a working condition but was compelled to drive and the same would be evident from the deposition of PW-21 – conductor of the bus, wherein it is found the bus was pushed by number of persons as initially it failed to start. After the bus started, it has come in evidence of the Motor Vehicle Inspector, PW-16 that break of the vehicle did not operate and it is for this reason only the accident took place.

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Learned advocate for the petitioner submitted the petitioner therefore cannot be held responsible for the peculiar circumstances under which he was forced to drive the vehicle, he had no knowledge regarding the conditions of the said vehicle and all of a sudden the incident happened which was not within his control. It would be unwise to hold the petitioner was driving negligently or in a rash manner.

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Learned advocate for the State on the other hand opposes the contention advanced by the petitioner and submitted that on the face of evidence it appears that the bus was being driven at a high speed and to that effect relies upon the evidence of PW-1, who states that the bus was at a very high speed. It was also submitted that consequential events would also reflect that three persons were seriously injured and subsequently one of them succumbed to the injuries.

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I have considered the submission of the learned advocates appearing for the respective parties and also taken into account the evidence of the Motor Vehicle Inspector who was examined as PW-16. The relevant part of the examination-in-chief and cross-examination are quoted below:-

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“I also found that in respect of the above motorcycle foot break pedal was dented which appears to be due to impact of the hit. In respect of the above bus it was found that the bus was having starting trouble and this bus was made to start by moving down the slop. This act appears to be resulted in the accident. The vehicle was fitted with air break system and for a vehicle fitted with air break system sufficient amount of compressed air pressure i.e 4.2 bar approximately in the air tank is required for functioning of the break. By starting the bus by pushing down the slop without sufficient air pressure resulted the failure of break. The hand break were also found removed from the vehicle. On inspection it was found that air pressure of both tanks were showing zero. The photo of the instrument panel bode taken at the time of inspection is displayed below. Condition of starring in respect of both vehicle were satisfactory. Condition of Tyree in respect of both vehicles were good. I further opined that it is for the driver to inspect the basis before moving a vehicle for performing trip, a vehicle fitted with air break system should not have been moved without building of sufficient air pressure in the tank, for making the break system working and if the bus is moved without the require amount of air pressure, the breaks will not function properly. The bus was having starting trouble, the photo of the battery can be seen below with rusted terminals taken at the time of inspection. The above bus without having break seeded up in the slop and it hit the above motor cycle in the traffic junction which was crossing the junction and resulted fatal injuries to its riders.”

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“It is a fact that I have stated that if the break of the bus was not failed the accident could have been avoided.

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It is a fact that the accident happened due to starting trouble of vehicle and because of running the vehicle down the also without proper air pressure in the break and that resulted break failure.”

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On an assessment of the overall evidence of the case and the concurrent findings of the learned Trial Court as well as the Appellate Court, I am of the opinion that so far as the finding of the guilt of the present petitioner under the provisions of sections 279, 338 and 304(A) of the Indian Penal Code is concerned, there is no scope for interference. However, I find that the learned Trial Court was pleased to hold the petitioner guilty on 16^th August, 2021 and on the same date, imposed sentence as stated above.

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The Hon’ble Supreme Court in Lakhanlal alias Lakhan Singh

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vs. State of Madhya Pradesh reported in (2021) 6 SCC 100 was pleased to observe in paragraph 7 as follows:-

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“7. Section 360(1) of the Code contemplates as to which offenders are entitled to the benefit of probation and on what conditions. It contemplates that firstly, if any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less; and secondly, when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, is entitled to the benefit of probation. Both categories of offenders have to further satisfy that he is not a previous convict; satisfaction of the court having regard to the age, character or antecedents of the offender and to the circumstances in which the offence was committed. The court being satisfied can order, instead of sentencing him at once to any punishment, that he be released on his entering into a bond with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) and in the meantime to keep the peace and be of good behaviour.”

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While hearing on the issue of sentence on the same date, the learned Court did not consider the provision of the 360 of the Cr.PC or the Probation of Offenders Act, 1958 although the learned Trial Court took into account the plight of the victim family.

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Having regard to the fact that ordinarily in road accident cases the Courts should not be lenient in sentencing but taking into account the facts of the case where for mechanical defects of the bus, the petitioner has been sentenced, and there are no materials to suggest that there was rashness on the part of the appellant or the appellant has suffered previous conviction or is related to any similar type of offence, I am of the opinion that it would be inappropriate after 13 years to send the appellant to jail. As such, ends of justice would suffice, if the fine amount is escalated to Rs.1.00 lakh and the petitioner be directed to furnish a personal bond of Rs. 20,000/- for a period of one year.

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The family of the victim particularly next kin of the deceased be paid the sum of Rs.1.00 lakh which should be deposited by the present petitioner within a period of 60 days from date. The petitioner will furnish his personal bond immediately, preferably within a week from date before the learned Judicial Magistrate, Second Court, Port Blair in connection with G.R.Case No.606 of 2013 (T.R.Case No.350 of 2013).

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In case there is a violation of the aforesaid direction, so far as the deposit of fine amount is concerned and furnishing of the personal bond is concerned, the learned Trial Court would revert back to the sentence which was imposed by the said Court.

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