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2016 DIGILAW 82 (JHR)

Rajeshwar Mistry v. State of Jharkhand

2016-01-12

PRASHANT KUMAR

body2016
ORDER : 1. This criminal revision is directed against the judgment and order dated 12.06.2015, passed by the learned District & Addl. Sessions Judge-IV, Jamshedpur in Criminal Appeal No. 141 of 2009, whereby and whereunder he dismissed the appeal and affirmed the judgment dated 18.05.2009, passed by the learned Judicial Magistrate, 1st Class, Jamshedpur in G.R. No. 1607 of 2005, corresponding to T.R. No. 190 of 2009, whereby the petitioner has been convicted under Sections 279, 337 and 304-A of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 1½ years and also pay fine of Rs. 3000/-. 2. It is submitted by Sri Dilip Kumar Chakraverty, learned counsel for the petitioner that in the instant case, the judgments of both the courts below are perverse as the same are not passed on any legal evidence. It is submitted that both the courts below had convicted the appellant/ petitioner on the basis of evidence of P.Ws. 4 and 5, but both the witnesses are not the eye witnesses of the occurrence, as they have stated before the police that they went to the place of occurrence after receiving information about the accident from some unknown persons. It is submitted that attention of the aforesaid witnesses had been drawn to their previous statements made before the police, but due to non-examination of Investigating Officer, the said contradictions have not been proved. Thus, due to non-examination of the Investigating Officer, a great prejudice caused to the petitioner. Therefore, in the instant case, non-examination of the Investigating Officer is fatal for the prosecution case. 3. On the other hand, Mrs. Vandana Bharti, learned Additional P.P. submits that since the aforesaid two witnesses have categorically stated that the accident took place in their presence and the petitioner was apprehended by the police from near the spot of the accident, the learned courts below have rightly convicted the petitioners for the offence. Accordingly, learned Additional P.P. submits that no interference is required by this Court. 4. Having heard the submissions, I have gone through the record of the case. It is an admitted position that the deceased persons namely, Guru Charan Singh and Suraj Prasad died in an accident, which took place on 31.07.2005 at National Highway (NH-33). It is also an admitted position that an F.I.R. has been lodged against unknown persons. 4. Having heard the submissions, I have gone through the record of the case. It is an admitted position that the deceased persons namely, Guru Charan Singh and Suraj Prasad died in an accident, which took place on 31.07.2005 at National Highway (NH-33). It is also an admitted position that an F.I.R. has been lodged against unknown persons. However, during the investigation, petitioner was apprehended and after completion of the said investigation, he was charge-sheeted. 5. From perusal of the impugned judgments, I find that both the courts below had relied upon the deposition of P.Ws. 4 and 5 for convicting the petitioners, as according to the learned courts below, those two witnesses are eye witnesses of the occurrence. I have gone through the statements of the aforesaid two witnesses. Though, these two witnesses had stated in their examination-in-chief that they were present at the place of occurrence at the time of accident, but their attention drawn to their previous statements made before the police to the extent that they went to the place of occurrence after getting information about the accident. The defence had also suggested to the witnesses that they are not the eye witnesses of the occurrence. It is worth mentioning that the Investigating Officer has not been examined in this case, therefore, the aforesaid contradiction elicited by the defence has not been proved. However, I have gone through the case diary, which is attached to the L.C. Record. The statements of aforesaid two witnesses recorded by the police. From perusal of the same, I find that both the witnesses are not the eye witnesses of the occurrence, rather they have stated before the police that they went to the place of occurrence after receiving information about the said accident. Under the said circumstance, due to non-examination of the Investigating Officer, the aforesaid vital contradiction elicited by the defence has not been proved, which certainly caused great prejudice to the defence. 6. From perusal of the impugned judgments, I find that in both the courts below, the defence counsel argued these points, but the courts below have not answered the same, which in my view, is an illegality and/or irregularity. Thus, both the courts below have committed serious illegality and/ or irregularity in deciding the case. Accordingly, I allow this revision application and set aside the judgments of both the courts below. Thus, both the courts below have committed serious illegality and/ or irregularity in deciding the case. Accordingly, I allow this revision application and set aside the judgments of both the courts below. The petitioner is acquitted from all the charges levelled against him. 7. As the petitioner is acquitted from the charges levelled against him, the trial court is directed to release the petitioner forthwith, if not wanted in any other case.