R.BHATTACHARYA, J. - (1.) THE Appellant Arjun Tewari was convicted under Sections 279, 337 and 304 -A of the I. P. C. and also under Section 118 of the Motor Vehicles Act by a Presidency Magistrate, now known as Metropolitan Magistrate, Calcutta, but sentenced only for the conviction under Section 304 -A. I. P. C. to undergo rigorous imprisonment for one year.
(2.) THE prosecution case is that on 23.11.1968 one Radharani Mondal, a maid servant was escorting a boy aged about 5 years named Tapas from his School to his house at about 11. a.m. She was holding the hand of the child. While she was crossing the road at the junction of Sovabazar Street and Maharsni Debendra Street, Calcutta, a lorry dashed against them causing the instantaneous death of the child and some hurt to Radharani. The registration number of the lorry was WBK -6573. The driver immediately fled away leaving the lorry on the spot. Several people collected. Police came, examined witnesses and submitted charge -sheet against the accused who was alleged to have driven the lorry. The accused pleaded not guilty.
(3.) IN this case several witnesses were examined and several documents were proved. According to the evidence the driver of the lorry left the place abandoning the lorry after it had dashed against the victims and nobody could see the accused actually driving the lorry at the time of the incident. The prosecution has however examined Awadh Narayan Sukla, P.W. 15 who maintained the garage register of the offending lorry No. WBK -6573. He produced the garage register and proved. It is Ext. 8. His evidence is that on the date of incident, the accused took away the lorry from the garage at 7 a. m. after signing the garage register Ext. 8 in his presence. The witness has proved the signature of the accused in the register and it is Ext. 8/1. The evidence is that P. W 15 saw the accused taking away the lorry from the garage and the accused was sitting in the driver's seat. There is no challenge or cross -examination suggesting that the accused did not take away the lorry from the garage. The only suggestion was that in the absence of the driver of a car, another person could move a car by starting it. It is, of course, no wonder that a car may be driven by another person who knows how to drive. The learned Magistrate on consideration of the facts and circumstances, was satisfied that it was the accused who was driving the car and dashed against the victims. It has been contended from the side of the appellant before us that as no witness had seen the accused driving the lorry at the time of the incident, the learned Magistrate should not have held that it was the accused who was driving the lorry at the relevant time. According to Mr. Sarkar for the appellant, the lorry might have been driven by another person without the knowledge of the appellant. In this connexion our attention has been drawn to the decision of the Division Bench of this Court in Lachman Singh v. The King AIR 1949 Calcutta 235: (50 Cri LJ 456). In that case the accused specifically pleaded during his statement that he was not driving the lorry when the accident took place. It appears that there was an order for remand for taking further evidence. In spite of such direction, the prosecution failed to prove that the thumb impression appearing in the garage register indicating the taking out of the lorry was that of the accused. So the evidence remained what it was before the order for remand allowing an opportunity to adduce evidence to prove that it was the accused who had taken out the offending lorry from the garage. In that connexion regarding Section 106 of the Evidence Act, it has been stated in that case, "It cannot be attracted where the fact in question having regard to its nature is such as to be capable of being known not only by the accused but also by others if they happen to be present when it took place". Section 106 relates to a fact within the special knowledge of a person. In the case referred to us, we find that the prosecution was given a chance to connect the accused with the thumb impression appearing in the garage register in the absence of any eye witness but the finger print expert failed to prove in that respect. It has been found in that case, ".....there is no evidence on the record though evidence could be available as to who was the person who was driving the lorry at the relevant time". It is to be noted that nowhere has it been stated in that case that no accused in motor accident case can be found guilty unless there is any eye witness to prove that the accused was actually found driving the vehicle at the time of incident. In that case it was not proved by the prosecution, though it got a chance on remand for the purpose, that the accused took out the lorry from the garage by proving the thumb impression in the garage register as that of the accused. Those facts are different from the fact and circumstances appearing in the case we are now considering.;