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2013 DIGILAW 1329 (PAT)

Tahir Khan v. State of Bihar

2013-11-25

ADITYA KUMAR TRIVEDI

body2013
ORDER Heard learned counsel for the petitioner as well as learned Additional P.P. 2. Sole petitioner Tahir Khan has challenged the judgment of conviction and sentence dated 27.07.2007 passed by Nand Kishore Ram, Judicial Magistrate, Ist Class, Madhubani in G.R.NO.2381 of 1991 convicting the petitioner for an offence punishable under Sections 279, 337 and 304A of the IPC and sentenced him to undergo S.I. for six months under Section 279 of the IPC as well as 337 of the IPC respectively, S.I. for a year under Section 304A of the IPC with a direction to run the sentences concurrently as well as judgment of confirmation dated 03.02.2011 passed by Additional Sessions Judge, F.T.C-III, Madhubani in Cr.Appeal No.61 of 2007. 3. Shorn of unnecessary details, P.W.2 Jagdish Ram (injured)had given his fardbeyan on 22.11.1991 at about 6.30 A.M. while he was admitted at the clinic of Dr.A.K.Jha at Pandaul Bazar disclosing therein in the previous night at about 10 P.M. while he along with his uncle Janak Ram(deceased), cousin brother Suresh Ram(injured) were returning after attending local function, were dashed by a jeep bearing registration no.WB-02-7604 on account of which Janak Ram died at the spot while Suresh Ram and he himself sustained injured. On the basis of the aforesaid fardbeyan, Pandaul P.S.Case No.237 of 1991 was registered under Sections 279, 338 and 304A of the IPC and after having the chargesheet submitted after conclusion of the investigation, the trial commenced and culminated in a manner as disclosed above, hence this revision. 4. It has been submitted on behalf of the petitioner that there happens to be inordinate delay in filing this revision petition and for that an explanation has been furnished that on account of earning of his livelihood petitioner had gone outside as well as the learned counsel also did not discharge his professional duty properly on account of which, the appeal was disposed with the aid of Amicus Curiae and that happens to be reason behind that petitioner could not be able to know about disposal of the Appeal. Learned counsel further relied upon AIR 2012 SC 640 (Abdul Ghafoor & Anr. Vs. State of Bihar). 5. Learned counsel further relied upon AIR 2012 SC 640 (Abdul Ghafoor & Anr. Vs. State of Bihar). 5. With regard to merit of the case, it has been submitted that apart from deficiency persisting over the prosecution case on account of non-examination of doctor as well as other material witnesses, it is apparent that there happens to be inconsistent version of the prosecution witnesses, hence for want of concrete and positive evidence on the score of identification of the petitioner being a driver of the unfortunate jeep, he cannot be convicted. It has further been submitted that successive courts have ignored the aforesaid valuable point. 6. At the other hand, the learned Additional P.P. opposed the prayer and submitted that reappraisal of evidence is not at all permissible during course of entertaining the revision against the concurrent finding. 7. With regard to question of limitation, the same is found properly explained in Abdul Ghafoor another Vs. State of Bihar in following manner in para-5:– “The law of limitation is indeed an important law on the statue book. It is in furtherance of the sound public policy to put a quietus to disputes or grievances of which resolution and redressal are not sought within the prescribed time. The law of limitation is intended to allow things to finally settle down after a reasonable time and not to let everyone live in a state of uncertainty. It does not permit any one to raise claims that are very old and stale and does not allow anyone to approach the higher tiers of the judicial system for correction of the lower court’s orders or for redressal of grievances at ones own sweet will. The law of limitation indeed must get due respect and observance by all courts. We must, however, add that in cases of conviction and imposition of sentence of imprisonment, the court must show far greater indulgence and flexibility in applying the law of limitation than in any other kind of case. A sentence of imprisonment relates to a person’s right to personal liberty which is one of the most important rights available to an individual and, therefore, the court should be very reluctant to shut out a consideration of the case on merits on grounds of limitation or any other similar technicality.” 8. A sentence of imprisonment relates to a person’s right to personal liberty which is one of the most important rights available to an individual and, therefore, the court should be very reluctant to shut out a consideration of the case on merits on grounds of limitation or any other similar technicality.” 8. As such, the delay whatever been at the end of petitioner in filling the revision against the concurrent finding is found to be subject to condonation in the aforesaid background and, is accordingly condoned. Consequent thereupon, the I.A.No.1205 of 2013 is allowed. 9. Now coming to question of identification, it is evident from Ext-2, that informant had properly identified the petitioner to be driver of unfortunate jeep bearing registration no.WB-02-7604. However, when he was examined as P.W.2, he has stated during his examination-in-chief that the jeep was being driven by petitioner Tahir Khan whom he claimed to identify. However, during course of cross-examination at para-4, he had stated that when he regained sense at the clinic of Dr. Jha, his brother along with other persons including Bindu Paswan have disclosed that the vehicle was being driven by Tahir Khan. They have disclosed at the morning and so he had named the accused. That means to say, the source of identification was not of his own rather on the basis of the disclosure made by his brother along with Bindu Paswan and others who have not been examined in this case and on the ground thereof, the status of the petitioner cannot be accepted as hearsay witness. 10. P.W.1 is another injured Suresh Ram who had narrated the occurrence and had also disclosed that the vehicle was being driven by Tahir Khan. He had not seen him driving the vehicle but while he was fleeing after getting out from the jeep, people had identified and disclosed the same. During cross-examination at para-6, he had again stated that the people belonging to Pandaul Bazar have disclosed that the vehicle was being driven by Tahir Khan. Tahir Khan was also resident of Pandaul. This witness had not named any one who had disclosed the name of Tahir Khan and on account of vagueness in his evidence as well as taking into account his assertion in the examination-in-chief itself, he is also not found a reliable witness on the score of identification. 11. P.W.3 is Shibji Sah, a resident of Pandaul. This witness had not named any one who had disclosed the name of Tahir Khan and on account of vagueness in his evidence as well as taking into account his assertion in the examination-in-chief itself, he is also not found a reliable witness on the score of identification. 11. P.W.3 is Shibji Sah, a resident of Pandaul. During his examination-in-chief he had supported the case of the prosecution and submitted that when he, came at the place of occurrence after hearing hue and cry, people were disclosing that they have seen Tahir Khan being the driver of the aforesaid vehicle. During cross-examination at para-2, he had disclosed that Kishori Paswan, Bindu Paswan and Mahavir have divulged as Tahir Khan being driver of the vehicle. 12. P.W.4 is the I.O. who had simply investigated the case. After having analytical approach of the evidence, it is apparent that prosecution has not succeeded to prove that petitioner happens to be responsible for causing accident on account of his rash and negligent act because of the fact that there happens to be deformity amongst the evidence of P.Ws. on the score of identification of petitioner being the driver. 13. True it is, during course of revisional jurisdiction, the concurrent finding of the fact is ordinarily found to be forbidden to be interfered with. Having the conjoint reading of the successive judgments, it is apparent that the learned successive courts have failed to appreciate the evidence of the prosecution witnesses on that very score hence there happens to be apparent deformity persisting. 14. Consequent thereupon, successive judgments are set aside. Petition is allowed. Petitioner is in custody, hence he is directed to be released forthwith, if not wanted in any other case.