PAPPA RAO Vs. STATE

JUDGEMENT

(1.) This revisional application is directed against the appellate order dated July 19, 1983 passed by the learned Sessions Judge, Andaman and Nicobar Islands in Criminal Appeal No.22 of 1982. By the order impugned the learned Sessions Judge has affirmed an order dated October 5, 1982 of conviction under S.304A and section 279 of the I.P.C. passed by the learned Judicial Magiatrate, Ist Class, Mayabundar in G.R. Case No.276 of 1978. The accused is the petitioner before us in this revisional application.

(2.) According to the prosecution, the accused petitioner while driving a motor truck on July 12, 1978 at 10.30 A.M. ran over a boy named Tannis Dung Dung aged about 4 years at Bijdera on his way from Panchbati to Rangat. The boy died instantaneously. Such death according to the prosecution was due to rash and negligent driving on the part of the accused petitioner. The petitioner was arrested on the same day and on completion of investigation the police drew up the chargesheet on Sept. 13, 1978. That chargesheet, however, was not filed before the learned Magistrate earlier than April 9, 1979 on which date the learned Magistrate took cognizance. At the trial the prosecution adduced evidence including the evidence of certain eye witnesses and the learned Magistrate convicted the accused petitioner under both sections and sentenced him to undergo rigorous imprisonment for six months. In doing so the learned Magistrate recorded a finding to the effect that the prosecution had duly proved the commission of the offence by the accused petitioner as he was charged for. The accused petitioner preferred an appeal but the learned Sessions Judge in dismissing the appeal upheld the order of conviction and sentence. Hence the present revisional application.

(3.) Mr. Sardul Singh appearing in support of this revisional application has raised three points. In the first place, he has contended that the chargesheet having been filed beyond 180 days from the date of arrest the learned Magistrate could not have taken cognizance on such a chargesheet in view of S.167(5) of the Cr.P.C. and the entire trial based on such cognizance is liable to be set aside. Reliance has been placed on the decisions in the cases of Ram Kumar v. The State reported in 1981 Cri LJ 1288 (Cal). Jay Shankar Jha v. The State, reported in 1982 Cri. LJ 744 (Cal) and Ram Briksh v. State of West Bengal reported in 1983 Cri LJ 39 (Cal). Secondly, it has been contended by Mr. Singh that on the evidence adduced the learned Magistrate should have held that the death was entirely accidental and was not due to any rash and negligent act on the part of the accused petitioner. Lastly reliance has been placed by Mr. Singh on S.360 of the Cr.P.C. in contending that in any event considering the fact that this was the first offence committed, the accused petitioner should have been released on probation of good conduct.