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2013 DIGILAW 1045 (PAT)

Maheshwar Thakur v. State Of Bihar

2013-08-26

ADITYA KUMAR TRIVEDI

body2013
JUDGMENT 1. Heard learned counsel for the petitioner as well as learned Additional Public Prosecutor. 2. Petitioner is aggrieved by judgment dated 25.01.2001 passed by Sri I.B. Prasad, S.D.J.M., Pupri at Sitamarhi in connection with G.R. No.57 of 1993 whereby he has been found guilty for an offence punishable under Section 279, 304(A) of the Indian Penal Code and sentenced to undergo S.I. for four months under Section 279 IPC and S.I. for two years under Section 304(A) of the Indian Penal Code having a direction to run the sentences concurrently as well as judgment dated 26.09.2002 in Cr. Appeal No.8 of 2001 / 17 of 2002 by Additional Sessions Judge, Fast Track Court No.5, Sitamarhi, upholding the same. 3. While assailing the concurrent judgment of conviction and sentences it has been submitted on behalf of petitioner that doctor has not been examined. It has also been submitted that Investigating Officer has also not been examined and in the aforesaid background the inconsistency amongst the PWs over place of occurrence deaden the prosecution version. Not only this, it has also been argued that on account of non-examination of I.O. petitioner’s interest is found ravened, consequent thereupon is found entitled for acquittal. 4. It has also been submitted that so far identification of petitioner is concerned, from the nature of the evidence and the location of the PWs as suggested during course of alleged occurrence did not inspire confidence. It has further been submitted that from the evidence of the PW, it is apparent that deceased had fallen victim of own negligence. It has also been submitted that there is absence of consistent evidence available on the record to suggest that petitioner was driving vehicle that too in rash and negligence manner. In the aforesaid background conviction recorded by the trial court is not at all found to be maintainable. 5. On the other hand, the learned Additional Public Prosecutor refuted the submission made on behalf of petitioner and submitted that all the witnesses are consistent, so far, driving of bus in rash and negligence manner is concerned and in likewise manner they have supported the identification of the petitioner being driver of the aforesaid bus at the relevant time. As such, the conviction and sentence recorded by the learned lower court is found to be fully substantiated with the materials on the record. 6. As such, the conviction and sentence recorded by the learned lower court is found to be fully substantiated with the materials on the record. 6. Dinesh Jha, PW-8 gave his fardebayn (Ext.-1) on 10.02.1993 at 01:00 PM at Sitamarhi P.S. accompanied by Bashisth Jha, Anil Jha and others carrying dead body of deceased, Harihar Prasad Sharma and put an allegation that on the same day at about 09:30 AM he along with his elder brother Harihar Prasad Sharma had reached at Harri More to go to Sursand. His elder brother was Branch Manager at Central Co-operative Bank, Sursand and to attend the office he had signalled to stop bus bearing registration no. 2711 (Karwan Coach). The driver of the bus, who was driving bus rashly and negligently instead of stopping the bus crushed his brother Harihar Prasad Sharma and gone towards Sursand. The persons who were present since before raised hue and cry but the vehicle did not stop. Then thereafter, they have lifted injured Harihar Prasad Sharma over Jeep No. B.P.K. 4603 to Sitamarhi Hospital where Harihar Prasad Sharma was declared dead. On the basis of the aforesaid fardbeyan, Sursand P.S. Case No. 9 of 1993 was registered under Sections 279, 304(A) of the Indian Penal Code against driver of the Coach No.2711 and during course of investigation petitioner was identified as an accused whereupon charge sheeted and on account thereof, met with ultimate result after conduction of trial, the subject matter of instant revision. 7. Altogether eight PWs have been examined in this case out of whom PW-1 is Kameshwar Singh who had simply exhibited formal FIR, PW-2 is Bilatu Jha, P.W.-3 is Ram Snehi Thakur, P.W.-4 is Raj Narayan Jha, P.W.-5 is Jitendra Jha (formal) who had exhibited postmortem report, P.W.-6 is Indradeo Thakur, P.W.-7 is Ram Shresth Thakur and P.W.-8 is Dinesh Jha as well as also exhibited documents to support its case. 8. The learned trial court had properly analyzed the evidence. However, it is found from the evidence of PW-2, PW-4, PW-6 as well as PW-7 that presence of Dinesh Jha (PW-8) at the place of occurrence happens to be soon after the occurrence and in the aforesaid background, P.W.-8 cannot be accepted as an eyewitness to occurrence. Moreover, his evidence would be found corroborative in nature. However, it is found from the evidence of PW-2, PW-4, PW-6 as well as PW-7 that presence of Dinesh Jha (PW-8) at the place of occurrence happens to be soon after the occurrence and in the aforesaid background, P.W.-8 cannot be accepted as an eyewitness to occurrence. Moreover, his evidence would be found corroborative in nature. With regard to status of PW-3, although he had narrated the prosecution version indicating that deceased Harihar was crushed to death but he failed to identify the driver and on account thereof, he is found to be giving some sort of relief to the petitioner. However, from the evidence of PW-2, PW-4, PW-6 and PW-7, it is apparent that not only they happens to be consistent over the manner whereunder deceased Harihar was crushed to death rather they are firm over identity of the petitioner being driver of Coach No.2711. It is also evident from their testimony that neither there happens to be embellishment nor development and on account thereof, the non-examination of Investigating Officer is not found prejudicial to the interest of the petitioner. It is also evident that all the materials witnesses are consistent with regard to place of occurrence. As such, petitioner’s interest is not found infusible. 9. Now the question remains with regard to admissibility of the postmortem report. True it is that prosecution has not brought on record the cause for non-examination of the doctor. At least the same should have been brought up on record by the prosecution to bring the postmortem report admissible in terms of Section 32(1) of the Evidence Act. In the background of the aforesaid deficiency, the evidence of PW-5 by which postmortem report has been brought up on record found to be inadmissible in the eye of law and in the aforesaid scenario the cause of death of deceased could not be brought up on record. As such conviction of petitioner under Section 304A of the IPC as held by learned trial court and concurred by the appellate court is not at all found to be legally substantiated. Hence, the conviction and sentence recoded therefor is set aside. However, the finding of the learned successive courts with regard to Section 279 of the IPC is concerned, the same is found to be supported with the evidence available on the record and on account thereof the same is accepted. Hence, the conviction and sentence recoded therefor is set aside. However, the finding of the learned successive courts with regard to Section 279 of the IPC is concerned, the same is found to be supported with the evidence available on the record and on account thereof the same is accepted. In likewise manner, the quantum of sentence inflicted by the learned court below with regard thereto is found lenitive. With the aforesaid modification, instant revision petition is dismissed. Bail bond of the petitioner is hereby cancelled. He is directed to surrender before the learned lower court to serve out the sentence.