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2017 DIGILAW 1282 (JHR)

Harihar Panda v. State of Jharkhand

2017-07-27

RONGON MUKHOPADHYAY

body2017
JUDGMENT : Heard the parties. 2. This application is directed against the judgment dated 16.03.2004, passed by the learned IInd Additional District and Sessions Judge, Dumka in Cr. Appeal No. 43 of 1991, whereby and whereunder, the judgment and order of conviction and sentence passed by the learned Judicial Magistrate, 1st class, Dumka in connection with Dumka (M) P.S. Case No. 7/84, convicting the petitioner for the offence under Sections 279, 337 and 338 of the Indian Penal Code and sentencing him to under go R.I. for two months, 3 months and 4 months respectively, has been affirmed. 3. It has been submitted by the learned counsel for the petitioner that the Investigating Officer of the case has not been examined, which has caused prejudice to the case of the defence. It has further been submitted that the witnesses, who were examined, were not consistent in their evidence and there are major contradictions amongst the statements of the witnesses and in such circumstances, therefore, petitioner's deserves acquittal. 4. Learned A.P.P. has opposed the prayer made by the learned counsel for the petitioner. 5. It appears from the prosecution report that there was head on collision between two buses near the bridge. It was alleged that buses were driven rashly and negligently, which led to institution of the FIR being Dumka(M) P.S. Case No. 7 of 1984. Investigation resulted in submission of charge-sheet and after cognizance was taken, charge was framed and trial proceeded. 6. In course of trial, nine witnesses were examined. PW I-Girish Chandra MandaI is a formal witness. 7. PW 2-Pithur Marandi has stated that he was coming along with children in the bus and near the bridge, both buses collided, which resulted in the informant and children getting injured. 8. PW 3-Jagat Singh is a formal witness. . 9. PW 4-Upendra Sah is a student, who had stated that he was going in the school bus from Guhiajori to Dumka and from the other side, Dinanath Bus was coming and both buses collided near the bridge. This witness had suffered some minor injury. 10. PW 5-Ashutosh Kumar Pandey was a student of ninth standard who had supported the fact that both buses were driven rashly and they collided. 11. PW 6- Kamla Kant Thakur was a teacher who was present in the bus when the bus collided, which resulted in some of the students getting injured. This witness had suffered some minor injury. 10. PW 5-Ashutosh Kumar Pandey was a student of ninth standard who had supported the fact that both buses were driven rashly and they collided. 11. PW 6- Kamla Kant Thakur was a teacher who was present in the bus when the bus collided, which resulted in some of the students getting injured. This witness had stated that he had suffered some injury. 12. PW 7-Robert Hansda was also a teacher, who had been declared hostile by the prosecution. 13. PW 8-Vijendra Das Gupta is a Motor Vehicle Inspector, who had stated that he had examined the bus bearing registration No. B.R.L. 2838 and he found no hand break in the said vehicle. This witness had examined the vehicle and had given a report. He has further stated that he had examined the bus bearing registration No. B.R.L. 4674, of which also, hand break was not found. 14. PW 9-Dr. Sitaram Sah had examined the injured travelling in the bus. 15. Evidences of the witnesses including the students and teachers of the bus prove that both buses were being driven rashly and negligently which led to the incident. Merely because Investigating Officer of the case has not been examined, same does not prove fatal to the prosecution case in view of the consistent evidence on behalf of the prosecution, except PW 7 - Robet Hansda, who had been declared hostile by the prosecution. Evidences of the witnesses have been supported by the doctor, who had been examined as PW 9. 16. Circumstances narrated above have rightly been considered by the learned trial Court while convicting the petitioner for the offence under Sections 279, 337 and 338 of the Indian Penal Code. Learned appellate Court also on proper materials available on record dismissed the appeal preferred by the petitioner. There being no reasons to conclude otherwise, the judgment dated 16.03.2004, passed by the learned IInd Additional District and Sessions Judge, Dumka in Cr. Appeal No. 43 of 1991, whereby and whereunder, the judgment and order of conviction passed by the learned Judicial Magistrate, 1st class, Dumka in connection with Dumka (M) P.S. Case No.7/84, convicting the petitioner for the offence under Sections 279, 337 and 338 of the Indian Penal Code has been affirmed, is hereby sustained. 17. Appeal No. 43 of 1991, whereby and whereunder, the judgment and order of conviction passed by the learned Judicial Magistrate, 1st class, Dumka in connection with Dumka (M) P.S. Case No.7/84, convicting the petitioner for the offence under Sections 279, 337 and 338 of the Indian Penal Code has been affirmed, is hereby sustained. 17. However, with respect to the sentence, which has been imposed upon the petitioner, it appears that petitioner has remained in custody for some time. Petitioner is facing the rigors of the prosecution case since the year 1984. On consideration of the aforesaid facts. period of sentence is modified to the period already undergone. 18. This application therefore stands dismissed with the aforesaid modification in sentence imposed upon the petitioners.