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2010 DIGILAW 495 (JHR)

Tileshwar Sahu v. State of Jharkhand

2010-04-19

D.K.SINHA

body2010
JUDGMENT D.K. Sinha, J. Instant criminal revision is directed against the judgment dated 12.8.2002 by which Criminal Appeal No.68 of 1999 preferred by the petitioner was dismissed by the learned Sessions Judge, Gumla affirming his conviction under Sections 279/304(A) of the Indian Penal Code and order awarding adequate sentence of imprisonment and fine by the S.D.J.M., Gumla in G.R. No.239 of 1996, corresponding to T.R. No.561 of 1999. By the said order, petitioner was sentenced to undergo rigorous imprisonment for six months for his conviction under Section 279 of the Indian Penal Code and was further sentenced to undergo rigorous imprisonment for two years and fine of Rs.5000/ with default stipulation for his conviction under Section 304(A) of the Indian Penal Code. Both the sentences were directed to run concurrently. 2. Prosecution story in short was that at about 7:15 p.m. on 6.4.1996, while the informant Savitri Devi was returning home and her son Gopal Thakur (since deceased) after closing his saloon was accompanying her and when they reached near the hotel of one Tiru at village Konvir, it was alleged that a bullet motorcycle came from their behind in high speed and knocked down her son Gopal Thakur while he was crossing the road. Her son Gopal Thakur as well as the rider of the motorcycle fell down on the earth with the impact of such accident and both became unconscious, though the pillion rider was there in sense, who disclosed the name of the petitioner Tileshwar Sahu being the driver of the motorcycle. Witnesses from nearby assembled there on the alarm raised by the informant. Registration number of the bullet motorcycle was given as BR415101. Her son Gopal Thakur as well as the driver of the motorcycle (petitioner) Tileshwar Sahu were brought to the Referal Hospital, Basia where the statement of the informant was recorded but her son Gopal Thakur succumbed his injuries during course of his treatment after a few days. A case was instituted initially under Sections 279/333 of the Indian Penal Code, later on Section 304(A) of the Indian Penal Code was added. Charge sheet was submitted under Sections 279/337/338/304(A) of the Indian Penal Code after investigation and accordingly charge was framed. 3. Learned Counsel Mr. A case was instituted initially under Sections 279/333 of the Indian Penal Code, later on Section 304(A) of the Indian Penal Code was added. Charge sheet was submitted under Sections 279/337/338/304(A) of the Indian Penal Code after investigation and accordingly charge was framed. 3. Learned Counsel Mr. A.K. Chaturvedi assailed the impugned judgment recorded by the learned Sessions Judge, Gumla in Criminal Appeal No.68 of 1999 as also the judgment of conviction and order of sentence recorded by the S.D.J.M., Gumla in G.R. No.239 of 1996 on the ground that the courts failed to appreciate that the petitioner was highly prejudiced for non examination of the Investigating Officer as he was denied the opportunity to cross-examine him about his objective finding when he visited the place of occurrence as the accident itself revealed the sequence based upon the principle of resipsa loquitur as to which party was at fault. None of the courts above could take into consideration that the prosecution failed to prove that Gopal Thakur died in accident caused by the motorcycle which was driven non other than by the petitioner as neither the injury report when he was first treated at the Basia Referral Hospital nor the postmortem report of the deceased could be proved so as to establish the cause of his death. Even the inquest report could not be brought on the record and the Doctor who had examined his injuries first point in time or the another Doctor who had held the autopsy could be produced before the trial Magistrate. The prosecution even failed to prove that it was the petitioner who was driving the motorcycle rashly and negligently at the relevant time when Gopal Thakur sustained injuries in the accident. Yet, the petitioner was convicted and sentenced without legal evidence on the record and without exercise of judicial mind by the S.D.J.M. The learned Sessions Judge also ignored such legal aspects and dismissed the appeal. 4. Heard Mr. Hatim, the learned A.P.P. appearing on behalf of the State. 5. From careful scrutiny of the judgments impugned, I find that the informant Savitri Devi, who is the mother of the deceased, categorically testified and claimed having seen the occurrence in the manner her son Gopal Thakur succumbed injuries in the accident caused by the motorcycle which was rashly driven by the petitioner. 5. From careful scrutiny of the judgments impugned, I find that the informant Savitri Devi, who is the mother of the deceased, categorically testified and claimed having seen the occurrence in the manner her son Gopal Thakur succumbed injuries in the accident caused by the motorcycle which was rashly driven by the petitioner. She specifically stated that motorcycle was driven in a very high speed and negligent manner and she identified the petitioner Tileshwar Sahu, who also sustained injuries and that he was driving the bullet motorcycle. She further stated that while her son was going forward, the motorcycle all of a sudden came from behind and knocked him. P.W.2 Simon Tiru was not the eye witness of the alleged accident, but he admitted having derived information from the cavil lagers Ravi Mahapatra and Pankaj about the occurrence and that the motorcycle was driven by the petitioner Tileshwar Sahu in a very high speed. The defence failed to show or adduce any evidence that it was caused on account of contributory negligence and that Gopal Thakur sustained accident while crossing the road negligently and without attentive to the vehicular traffic plying on the road. Factum of accident has been described by the informant P.W.1 Savitri Devi which is based upon the principle of resipsa loquitur. 6. Petitioner has raised the plea that he has been highly prejudiced for non examination of Investigating Officer, but I find that the informant P.W.1 Savitri Devi has given vivid description about the place of occurrence and the manner of accident in which her son sustained injuries and later on succumbed during course of treatment. Other points that have been raised by the petitioner are that the F.I.R. was not proved and no medical evidence could be produced in support of the relevant fact that Gopal Thakur died in motor accident and for want of which, the conviction of the petitioner could not be sustained under law. 7. Other points that have been raised by the petitioner are that the F.I.R. was not proved and no medical evidence could be produced in support of the relevant fact that Gopal Thakur died in motor accident and for want of which, the conviction of the petitioner could not be sustained under law. 7. I find from perusal of the record that F.I.R. was not proved by the prosecution, may be for the reason that the Investigating Officer could not appear in the witness box, but at the same time, I find that the informant Savitri Devi stated and admitted that her statement was recorded by the police at Referal Hospital, Basia where her son was being treated and therefore, this Court takes notice that even if F.I.R. could not be proved formally but drawing of an F.I.R. on the basis of the statement of the informant is admitted. As regards injury sustained by the deceased in the motor accident, the witnesses were consistent and therefore, no formal proof of the postmortem report was required. I find further that the petitioner Tileshwar Sahu was examined by the trial Magistrate and his statement was recorded under Section 313 of the Code of Criminal Procedure, in which when he was confronted with the materials that were collected in course of trial that on 6.4.1996 he knocked Gopal Thakur by rashly and negligently driving the bullet motorcycle, bearing Registration No. BR415101, as a result of which Gopal Thakur sustained injuries and later on succumbed in course of treatment, the petitioner replied by admitting that he was driving the motorcycle slowly and that the victim suddenly appeared on the road and that time he was drunk. Petitioner fairly admitted before the Court that he was driving the bullet motorcycle at the relevant time, however, on the plea by shifting the liability that Gopal Thakur at that time was drunk and appeared all of a sudden on the road, no evidence could be adduced to substantiate such facts either on the point that he was in the state of drunk or he suddenly appeared on the road. As the petitioner fairly admitted the fact that he was driving the motorcycle and also admitted that the accident was caused to Gopal Thakur who sustained injuries and later on succumbed, the settled law is that the facts admitted need not be proved and therefore, in absence of any injury report or postmortem report prosecution case cannot fail on the admission of the petitioner corroborated by the P.W.1 Savitri Devi, eye witness whose credibility could not be shaken. I further observe that the petitioner failed to prove the contributory negligence of the deceased in the said motor accident. 8. Learned counsel Mr. Chaturvedi failed to show any ground so as to call for interference in the judgment impugned passed by the Sessions Judge, Gumla by which appeal preferred by the petitioner was dismissed. 9. I find that the petitioner has already suffered ordeal of prosecution for about fourteen years and also remained in custody for few months after his conviction. Sentence that has been prescribed for his conviction under Section 304(A) of the Indian Penal Code is imprisonment for two years or fine or both. Similarly sentence prescribed for his conviction under Section 279 of the Indian Penal Code is imprisonment for six months or fine of Rs.1000/ or both. 10. It is relevant to mention that the counsel for the petitioner at the outset pointed out that the informant has been adequately compensated by the Insurance Company in the claim case arising out of the motor accident and therefore, lenient view could be taken against the petitioner by awarding fine if at all he could not succeed in the present criminal revision. 11. Taking the considered view and maintaining the conviction of the petitioner under Sections 279/304(A) of the Indian Penal Code, the sentence of imprisonment at both counts is modified and the petitioner Tileshwar Sahu is directed to deposit the fine of Rs.25,000/ consolidated at the Nazarat, Civil Court, Gumla within one month to be paid to the informant on her proper identification in addition to what she has already received over and above the compensation amount in the claim case on the death of her son Gopal Thakur in the motor accident. 12. With the modification in the sentence, this criminal revision is dismissed.