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2014 DIGILAW 988 (PAT)

Jagdish Sharma v. State of Bihar

2014-09-12

JITENDRA MOHAN SHARMA, NAVANITI PRASAD SINGH

body2014
NAVANITI PRASAD SINGH, J.:–The sole-appellant has preferred this appeal against the judgment of conviction dated 29.04.1991 and order of sentence dated 30.04.1991 passed by the learned 1stAdditional Sessions Judge, Vaishali at Hajipur in Sessions Trial No.401 of 1990, whereby the sole-appellant, who was a driver of a public carrier truck bearing registration no.BR-1H-0263, has been held guilty of offence punishable under Section-302 of the Indian Penal Code (hereinafter in short as ‘IPC’). 2. When the appeal was taken up for hearing Mr. Bishnu Kant Dubey, learned counsel whose name appears stated that the appeal was filed from the office of Late Mr. Ganesh Prasad Singh, Senior Advocate and at that time he was associated with him. He stated that enquiries from the office of Late Mr. Ganesh Prasad Singh disclosed that the appellant had taken back the file and all the papers way back in 1992 itself. However, on our request, he agreed to assist us on basis of the paper book as available. 3. We have heard Mr. Bishnu Kant Dubey, learned counsel for the appellant and Mr. Ajay Mishra, learned Additional Public Prosecutor for the State. For the reasons to be given hereunder we are convinced that the conviction of the appellant under Section-302 IPC is not warranted though we would uphold his conviction under Section-304-A IPC. The charge as framed under Section-302 IPC would stand altered accordingly as it does not cause any prejudice to the appellant. 4. The prosecution case is based upon the fardbeyan of one Israfil Mian recorded at State Dispensary, Goroul, District Vaishali by Ramdeo Yadav (P.W.6) who was Assistant Sub-Inspector of Police of Goroul Police Station. The fardbeyan was recorded at about 6 am on 12.06.1990 alleging that the informant was the khalasi of the said public carrier truck which was driven by Jagdish Sharma, the appellant. They were carrying a consignment of wheat from Narkatiaganj to Danapur Flour Mill. When the truck reached near village Goria, Goroul on the early hours of the morning of 12.06.1990, the driver, feeling exhausted and sleepy, stopped the truck on the road and asked the informant to go to sleep as well for sometime. In the meanwhile 2 to 3 other trucks also came and stopped there. After sometime, the informant realized that the driver had started the truck and drove on his legs and escaped leaving him injured there. In the meanwhile 2 to 3 other trucks also came and stopped there. After sometime, the informant realized that the driver had started the truck and drove on his legs and escaped leaving him injured there. On his cries for help people came and carried him to the State Dispensary at Goroul. Upon this statement being recorded, a formal F.I.R was registered against the driver. On the next day, when the informant was being taken to Nalanda Medical College & Hospital, Patna for treatment, he died. The police, in course of investigation, interrogated the owner of the truck, Krishna Kumar alias Dewan Das (P.W.1), the uncle of the informant, Safiur Rahman (P.W.5) and several others and submitted charge-sheet under Section-302 IPC. Upon charges being framed and the appellant having denied his guilt, he was tried and convicted and sentenced accordingly. Hence, this appeal. 5. Learned counsel for the appellant submits firstly that there is no cogent evidence as against him much less to show that he was the driver of the said truck at that point of time when the incident took place. He secondly submits that even if the prosecution story is accepted, it is at best an accident where both the driver and the khalasi went to sleep and, without realizing this, the driver accidentally drove over the khalasi and then panicked and ran. It would be a case at best under Section-304 A IPC. On the other hand, learned Additional Public Prosecutor submits that this is clearly a case punishable under Section-302 IPC. In the fardbeyan itself the informant alleges that because of differences the driver intentionally did so. We have to reconcile the two stands based upon the facts. 6. In order to establish the charge the prosecution has examined 8 witnesses. Let it be noted that P.W.2-Deep Narain Singh, P.W.3-Raj Kumar Sah and P.W.4-Maheshwar Singh are the persons who actually carried the injured informant to the State Dispensary and have been declared hostile. They denied having any knowledge of the incident. They denied having made any statement to the police. That leaves us to 5 witnesses. P.W.8 is Dr. Umesh Nandan Jha who conducted the postmortem examination of the informant and noticed the extensive compound fracture in both the legs and opined that it could have been caused as a consequence of heavy vehicular accident. They denied having made any statement to the police. That leaves us to 5 witnesses. P.W.8 is Dr. Umesh Nandan Jha who conducted the postmortem examination of the informant and noticed the extensive compound fracture in both the legs and opined that it could have been caused as a consequence of heavy vehicular accident. P.W.6-Ramdeo Yadav and P.W.7-Shivpati Nath Sinha are the police officers who conducted the investigation and submitted the charge-sheet respectively. That leaves us with P.W.1-Kirshna Kumar alias Dewan Das, the owner of the truck bearing registration no.BR-01H-263 and P.W.5-Safiur Rahman, the uncle of the deceased. 7. P.W.1-Kirshna Kumar alias Dewan Das in his chief admits that the informant, Israfil Mian was khalasi in his public carrier truck bearing registration no. BR-01H-263 but he further states that who was the driver he does not remember because he had 2 or 3 trucks and the drivers kept changing. When we come to his cross-examination, he denies having any driver by name Jagdish Sharma. He states that he has no permanent driver and whoever is available to drive the vehicle takes it as and when it is required. In the end, he goes to the extent of saying that the deceased was not his khalasi or helper to the driver in the truck. 8. Here, learned counsel for the appellant submits that in view of the statement of the owner of the truck in his cross-examination, neither the appellant can be treated as driver nor the deceased be as khalasi. We are unable to agree. In his chief, he has admitted the deceased to be his khalasi. This retraction in the cross-examination is apparently only with a purpose to escape from civil liability. Secondly, it is not believable that an owner of truck, who has 2 or 3 trucks, handed over the truck to any driver without knowing him. To that extent, the statement of P.W.1 cannot be accepted as correct. We would only add that in the end of his cross-examination he admits that he had heard about the incident. This makes his position even worst. This is an admission that his truck has been involved in the incident to his knowledge. 9. We then come to P.W.5-Safiur Rahman. He is the uncle of the deceased and stays at Bettiah to the place where the owner of the truck and the deceased belonged. This makes his position even worst. This is an admission that his truck has been involved in the incident to his knowledge. 9. We then come to P.W.5-Safiur Rahman. He is the uncle of the deceased and stays at Bettiah to the place where the owner of the truck and the deceased belonged. He states that on 11.06.1990 the deceased came and informed him that his daughter was not well as such P.W.5-Safiur Rahman went home to look after his daughter and he talked to the owner of the truck (P.W.1) to allow the deceased, who had earlier worked also for the said owner, to go as khalasi with the appellant as the driver. On the next day, he was told by P.W.1-Krishna Kumar about the accident that had happened and that the informant is dead. In the cross-examination, he admits that he had made his statement before the Goroul Police Station. He admits that there was no dispute amongst the parties. He admits that as a khalasi, the informant had not been a permanent employee of P.W.1. He denies the suggestion that the case has been falsely lodged. 10. We then have the evidence of P.W.6-Ramdeo Yadav. He is the Investigating Officer and who recorded the fardbeyan. In his chief, he states that on 12.06.1990 he was informed about the informant being brought to the Goroul State Dispensary in a grievously injured condition. He went there. The deceased then had given the detailed statement stating the name of the owner of the vehicle, the vehicle number, the name of the driver, the destination where they were going, the load they were carrying and that he had slept in front of the truck and after sometime the driver drove over him and escaped. He then states that he had interrogated other people who had brought the khalasi to the State Dispensary and they had also narrated the same story as disclosed by the informant to them. His deposition stands scrutiny in the cross-examination. We then have P.W.7-Shivpati Nath Sinha who prepared the inquest report and concluded the investigation. 11. The first thing to be noticed is that when the vehicle had not been seized, how did the Investigating Officer, Ramdeo Yadav (P.W.6) get the information with regard to the ownership, the driver and the address. His deposition stands scrutiny in the cross-examination. We then have P.W.7-Shivpati Nath Sinha who prepared the inquest report and concluded the investigation. 11. The first thing to be noticed is that when the vehicle had not been seized, how did the Investigating Officer, Ramdeo Yadav (P.W.6) get the information with regard to the ownership, the driver and the address. This information could only be given by the khalasi i.e. the informant and no one else. The second thing to be noted is that the owner, P.W.1-Krishna Kumar alias Dewan Das does not deny the incident. In his cross-examination, he admits that he had heard of the incident. In such situation, where the informant died soon after making the statement to the police, which was used as fardbeyan and F.I.R. was registered, can it not be used as a dying declaration. The material facts stated therein stand corroborated by other witnesses, i.e., P.W.1-Krishna Kumar alias Dewan Das, the owner of the vehicle and the uncle of the deceased who clearly states that he was told by the owner about the incident and that is how he came to know about the death of his nephew. If these three things are seen together, it would be apparent that the said statement of the deceased and its recording by P.W.6-Ramdeo Yadav cannot be doubted. It is virtually a dying declaration, which is admittedly corroborated. We rely upon it and, accordingly, hold that the appellant was responsible for driving over the legs of the deceased thereby causing his death but that does not mean that the appellant is guilty of culpable homicide amounting to murder. It was surely an accident where both the khalasi and the driver being exhausted, as stated in the fardbeyan itself, went to sleep. The driver woke up and, without taking due care, started driving the vehicle. Thus, negligently drove over his own khalasi which causes death. He then panicked and escapes with the truck. This is clearly an accident. It is a negligent driving resulting in death and, therefore, it would be an offence under Section-304-A IPC and punishable as such. 12. We, accordingly, are of the view that the denial by P.W.1-Krishna Kumar alias Dewan Das is merely an exercise to escape from civil liability. He being the owner of the truck, which he does not deny, it was for him to name the driver. 12. We, accordingly, are of the view that the denial by P.W.1-Krishna Kumar alias Dewan Das is merely an exercise to escape from civil liability. He being the owner of the truck, which he does not deny, it was for him to name the driver. Surely, onus was on him because he was the owner of the truck which was carrying the goods. It cannot be believed that owner of a truck would not know as to who is the driver and the khalasi. Thus, to that extent, we cannot accept the statement of the owner of the truck, Krishna Kumar alias Dewan Das (P.W.1). We thus convict the appellant under Section-304-A IPC. 13. Learned counsel for the appellant submits that considering the fact that the appellant had already undergone imprisonment for a considerable period (about 9 months) at the stage of investigation itself and considering the fact that the incident was of 24 years back when the appellant was of 35 years, which would make him about 60 years now and further that the maximum punishment under Section-304-A IPC is 2 years, we must take compassionate view of the matter. 14. Having considered the matter, in the facts and circumstances as noted above, we dismiss the appeal while altering the conviction from Section-302 to Section-304 A of the Indian Penal Code and the sentence to that already undergone would meet the ends of justice. 15. Accordingly, with the said modification in conviction and sentence, this appeal is dismissed. ?