SHANKARJIT JAIPURIA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The two questions raised in this revision are whether in an appeal from conviction the Appellate Court can remand the matter for fresh decision taking the view that material witnesses were not properly examined and that fresh evidence should be brought in by examining some more occurrence witnesses, and whether such direction wipes out all previous evidence on record. The petitioner stood charged under Secs. 279, 337, 338, 427 and 304-A, IPC on allegation of his having been the driver of a fire brigade vehicle bearing No. OSC 8233 which he drove on 13-3-1964 in rash and negligent manner at 8.30 a.m. while going to Rairakhol Bus Stand through Ratha Sahi. While driving he took a left turn at a turning point and going to the extreme left, ran over one Chalpati Rao aged about 18 years and his niece Nagmani aged about 12 years who were standing infront of shop of one Appa Rao and also dashed against one Nila Dei aged about 45 years who was standing in front of the shop of one Chhote Lal. He then dashed against the tiled roof of the projection in front of the shop of Appa Rao and Chhotelal and in the process one wooden batten of the projection pierced the chest of one Fire Service Constable, Trinath Pradhan who was sitting on the vehicle. The vehicle also ran over a Rajdoot motor-cycle and two other bi-cycles in front of the shops of Chhotelal and Appa Rao and dragged the motor cycle to a distance. Chalpati Rao died at the spot and Naomani, Nila and Trinath Pradhan succumbed to the injuries at the hospital. The defence of the petitioner was one-of denial. He examined himself as DW1 and stated that at the time he was driving the vehicle, through Ratha Sahi to the Bus Stand to extinguish a fire for which call had been received, and after turning the vehicle at the turning point he came across a truck standing on the middle of the road and an old woman passing at the back of it. Seeing her he turned the vehicle to the left with a view to save her as a result of which the vehicle hit the projections in front of the shops. The deceased persons were on the road and under such circumstances he could not control the vehicle though he had blown horn. He thus contended not to have driven the vehicle in rash and negligent manner. Fifteen witnesses were examined by the prosecution of whom PW 1, was the informant, PW 4, PW 5 who was a Fire man at the fire station, PW 6, PW 7, PW 11 and PW 12, who was the owner of the motor cycle were the occurrence witnesses, PWs 2, 3 and 10 were the post-occurrence witnesses and PWs 8 and 9 were the medical officers who conducted the autopsy over the dead bodies. PW 13 was the A.S.I. of Police who registered the case on the basis of information lodged by PW 1 and PW 14 was the Motor Vehicle inspector who had examined the vehicle on police requisition. PW15 was the Investigating Officer who submitted the charge-sheet. The trying Magistrate found the prosecution to have established the case against the accused and convicted him under Secs. 279, 337, 338, 427 and 304-A, IPC and sentenced him to S.I. for six months and fine of Rs. 500/- in default to under go S.I. for 15 days on each count. In appeal the learned Sessions Judge was of the view that the trying Magistrate had not arrived at categorical findings about rashness and negligence on the part of the appellant in driving the vehicle and that such driving was the direct cause of death of the four persons. He took the view that there should have been proper examination of PW 14 regarding the speed of the vehicle and felt that a case for remand was made out for bringing in proper evidence for which purpose the SDJM, was to summon PW 14 and PW 15 and at least some of the occurrence witnesses and arrive at a fresh decision. He accordingly allowed the appeal, set aside the conviction and the sentence and remanded the case to the S.D.J.M. for fresh decision. The S.D.J.M on remand, re-examined PWs. 1, 3, 4, 6 and 14 but since PW 15 in spite of summons did not turn up, dispensed with him and on consideration of the evidence already on record and those recorded on remand, convicted the petitioner under Secs. 279, 337, 338 and 304-A, IPC and sentenced him to R.I. for six months on each count with direction for the sentences to run concurrently. The learned Addl. Sessions Judge who heard the-appeal against the conviction and the sentence, held it to be without merit and dismissed it giving rise to the present revision.

(2.) Mr. H.S. Misra, the learned counsel appearing for the petitioner has urged :

(3.) To appreciate the questions raised, it is necessary to extract relevantly the provisions of Sec. 386(b) as regards the powers of the Appellate Court while hearing appeal from conviction. The provisions are :