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2013 DIGILAW 1184 (PAT)

Shyam Bihari Singh v. State of Bihar

2013-09-26

ADITYA KUMAR TRIVEDI

body2013
JUDGMENT : A.K. Trivedi, J.- Heard learned counsel for the petitioner as well as learned Additional Public Prosecutor. 2. Petitioner, Shyam Bihari Singh who has been found guilty for an offence punishable under Sections 279, 304 (A) of the Indian Penal Code and further directed to undergo imprisonment for three months under Section 279 as well as sentenced to undergo R.I. for a year under Section 304(A) of the Indian Penal Code vide judgment dated 12.1.1998 passed by S.D.J.M., Sasaram in G.R. Case No. 570 of 1987 as well as the judgment dated 30.8.2010 passed by IVth Additional Sessions Judge, Rohtas at Sasaram in Cr. Appeal No. 8 of 1998/11 of 2010 while confirming the judgment of conviction and sentence challenge the same under instant petition. 3. PW 2, Ram Bachan Sah gave his fardbeyan on 5.3.1987 divulging the fact that while his grand daughter Sunita Kumari, aged about 6 years was returning after meeting nature's call she was crushed by a bus bearing Registration No. BHZ 1561. The bus after running few step ahead stopped and the driver and other staff managed to escape therefrom. Accordingly, FIR was registered against the driver of BHZ 1561 and because of the fact that there happens to be absence of connecting material for want of non-examination of I.O., the fact is lacking how the petitioner has been dragged in this case stamping as a driver of said unfortunate bus bearing Registration No. BHZ 1561 at the time of an accident so alleged. 4. The death of Sunita Devi could not be controverted even after having examination of only two PWs Ayodhya Sao, the father of Sunita Devi and Ram Bachan Sah the grandfather of Sunita. Sunita was crushed. Bus stranded on account thereof and from the cross-examination, it is evident that, that part of story has not been shocked. 5. Now the only question remains regarding identification of the petitioner being driver of the bus at that unfortunate moment. Although the attention of PW 2 was not drawn up during his cross-examination towards the relevant disclosure made by him in the fardbeyan which discredited him as an eye-witness to occurrence, however from his examination-in-chief at para-2 he had stated that Shyam Bihari Singh was driver of the bus at the said moment. Although the attention of PW 2 was not drawn up during his cross-examination towards the relevant disclosure made by him in the fardbeyan which discredited him as an eye-witness to occurrence, however from his examination-in-chief at para-2 he had stated that Shyam Bihari Singh was driver of the bus at the said moment. During cross-examination in para-4 at middle portion he had himself stated that the girl had gone 20 yards East to meet nature's call. About 20 minutes thereafter there was uproar that girl has been crushed and then he rushed to the place of occurrence. Therefore, by this evidence he himself ruled out to be an eyewitness to occurrence though he arrived at the place of occurrence. The other circumstances visualizing from his evidence is apparent from para-5 wherein he had stated that none have disclosed the name of driver. He was himself knowing. In the aforesaid background absence of name of petitioner in the fardbeyan which was recorded after four hours from the alleged time of occurrence, in case, having known to the name of driver could not have been spared. At this moment the silence on the part of defence is perceived who had failed to drew attention of the informant regarding identification of the accused. 6. PW 1 is father of deceased who had stated that while his daughter was going towards stall of his father she was crushed by a bus. He further disclosed the name of driver of bus as Shyam Bihari Singh whom he claimed to identify however was represented on that very day. In para-7 of the cross-examination he had himself stated that he was knowing the name of driver since before. None had disclosed his name. 7. Having known to the driver since before by PW 1, the father of deceased could not have spared the driver by his name while recording the fardbeyan by the grand father of the deceased. On account of non-examination of the I.O., the theme of another connecting evidence having the petitioner as a driver of Bus No. BHZ 1561 could be brought up on the record and in the aforesaid background, the interest of the petitioner is also found prejudiced. The cumulative effect, in the aforesaid background relating to identification of petitioner became doubtful. On account of non-examination of the I.O., the theme of another connecting evidence having the petitioner as a driver of Bus No. BHZ 1561 could be brought up on the record and in the aforesaid background, the interest of the petitioner is also found prejudiced. The cumulative effect, in the aforesaid background relating to identification of petitioner became doubtful. After going through the successive judgments, it is apparent that this crucial aspect has been left out at the time of consideration. Thus, the successive judgments are set aside. Revision is allowed. Petitioner is on bail hence he is absolved from its liability. Revision allowed.