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2017 DIGILAW 1430 (JHR)

Naresh Sahu v. State of Jharkhand

2017-08-10

RONGON MUKHOPADHYAY

body2017
JUDGMENT : By Court.-Heard Ms. Amrita Banerjee. learned counsel for the petitioner and Mr. Ashok Kumar, learned APP., for the State. 2. This application is directed against the judgment dated 29.4.2005 passed by the learned Additional Judicial Commissioner, Fast Track Court No. IV, Ranchi in Criminal Appeal No, 204 of 2004 whereby and where under the judgment and order of conviction and sentence dated 31.7.2004 passed, by the learned Judicial Magistrate, First Class, Ranchi in G.R. Case No. 136 of 2003 by which the petitioner has been convicted for the offence under Sections 279, 337, 338, 304-A and 427 of the Indian Penal Code and sentenced to various terms has been affirmed. 3. It has been stated by the learned counsel for the petitioner that none of the. witnesses have been able to identify the driver of the tempo which had caused the accident. It has also been stated that the Motor Vehicle Inspector was also not produced by the prosecution to throw the light on the fact as to whether the tempo was examined by the Motor Vehicle Inspector or not. Learned counsel further submits that most of the witnesses are related to the deceased and, therefore" interested witnesses and their testimony cannot be relied upon by the prosecution. An alternative argument has been put forward by the learned counsel for the petitioner that if this Court is not inclined to interfere in the judgment of conviction the period of sentence be reduced considering the fact that the petitioner has remained in custody for a period of about two months and has been facing the rigors of the prosecution case for more than a decade. 4. Leamed APP has supported the impugned order. 5. The First Information Report was instituted on the allegation that while the informant was going along with her minor boy one tempo bearing Registration No. JH 01D 6320 had dashed against the motorcycle which resulted in the death of the boy subsequently. 6. On the basis of the aforesaid allegation Kanke P.S. Case No. 2 of 2003 was instituted. Investigation resulted in submission of charge-sheet and after cognizance was taken trial proceeded. 7. In course of trial seven witnesses were examined on behalf of the prosecution. 8. PW 1, Rajiv Ranjan. did not support the prosecution case and, therefore, he was declared hostile by the prosecution. 9. Investigation resulted in submission of charge-sheet and after cognizance was taken trial proceeded. 7. In course of trial seven witnesses were examined on behalf of the prosecution. 8. PW 1, Rajiv Ranjan. did not support the prosecution case and, therefore, he was declared hostile by the prosecution. 9. PW 2, Kanaiya Sharma, is the Investigating Officer of the case who had recorded the statement of the witnesses and had also proved the fardbeyan which has been marked as Exhibit-I. This witness had stated that in course of investigation. it could come to light that one Dinesh Sahu of village Pithoria was the owner of the tempo and the petitioner was the driver. This witness had also obtained the post-mortem report and MVI report of the vehicle and had thereafter submitted the charge-sheet against the petitioner. 10. PW 3. Ekramul Haque, had stated that when he was coming from his house to Ranchi he had seen a Piaggio bearing Registration No. JH 01B 6869 in a negligent fashion dashing against a vehicle. This witness had further deposed that Zakir Ansari was driving the motorcycle and behind him his mother and nephew of Zakir Ansari were sitting. He had further stated that on account of the accident all the three persons had fallen down unconscious and after the injured persons were taken to the hospital Zakir Ansari succumbed to his injuries. This witness had stated that he could not identify the accused. 11. PW 4, Anamul Haque, was also a witness to the occurrence in which the tempo had dashed against the motorcycle as a result of which the passengers of the motorcycle received injuries and Zakir Ansari who was driving the motorcycle had subsequently died. This witness had identified the petitioner in the Court as the driver of the tempo. 12. PW 5, Aisha Khatoon, is the informant and the mother of the deceased. She had stated that while she was going to Harmu along with her son and grand-son a Piaggio tempo dashed against their motorcycle and they fell down. She has further stated that her son received serious' injuries and he was taken to the Hospital where he subsequently died. This witness had also stated that she did not know the registration number of the tempo. However, she had identified the accused in the dock and stated that it was the petitioner who was driving the tempo. 13. She has further stated that her son received serious' injuries and he was taken to the Hospital where he subsequently died. This witness had also stated that she did not know the registration number of the tempo. However, she had identified the accused in the dock and stated that it was the petitioner who was driving the tempo. 13. PW 6, Sabir Ansari, was in the motorcycle which was being driven by Zakir Ansari. This witness had stated about the incident. He has further identified the petitioner in the dock and had stated that the tempo was being driven by the petitioner. 14. PW 7, Dr. Shambhu Saran, had conducted the post-mortem on the body of Zakir Ansari. The evidence of the witnesses does substantiate the fact that an. incident had taken place in which a Piaggio vehicle had dashed against the motorcycle driven by the deceased Zakir Ansari resulting in injuries to the other persons who were also on the motorcycle. 15. Learned counsel for the petitioner has strenuously argued the fact that the petitioner could not be identified to be the person who was driving the tempo. 16. It appears that apart from PW 5 and PW 6 who were on the motorcycle one Anamul Haque who was examined as PW 4 had also identified the petitioner as the driver of the said tempo. There is nothing in the version of PWs 4, 5 and 6 to be disbelieved and, therefore, their statements clearly establishes the identity of the petitioner as being the driver of the tempo which was being driven in a rash and negligent fashion. The other witness namely Ekramul Haque being PW 3 has also supported the fact regarding the rash and negligent driving of the Piaggio tempo which resulted in the accident. So far as the non-examination of the Motor Vehicle Inspector is concerned, although -it has been argued by the learned counsel for the petitioner that on his non-examination the defence has been greatly prejudice but as it appears from the evidence of the Investigating Officer PW 2 that the Motor Vehicle Inspector had inspected the vehicle and he had also submitted a report. If thus appears from. the evidence of the Investigating Officer that the paraphernalia with respect to the investigation including getting the vehicle verified by the Motor Vehicle Inspector has been duly followed by him. If thus appears from. the evidence of the Investigating Officer that the paraphernalia with respect to the investigation including getting the vehicle verified by the Motor Vehicle Inspector has been duly followed by him. These evidence of the witnesses clearly points to the fact that it was the petitioner who was driving the tempo in a rash and negligent manner - which resulted in the accident and the death of the driver of the motorcycle namely Zakir Ansari. 17. The circumstances enumerated above, do point to the guilt of the petitioner which has properly been considered by the learned Trial Court while convicting the petitioner for the offences under Sections 279, 337, 338, 304-A and 427 of the Indian Penal Code which was also affirmed in appeal. 18. There being no reasons to conclude otherwise the judgment of conviction passed by the learned Trial Court and affirmed by the learned Appellate Court is hereby, sustained. 19. However with respect to the sentence which has been imposed upon the petitioner is concerned, it appears that the petitioner is facing the rigors of the prosecution case since the year 2003. The petitioner seems to have remained in custody for a period of about two and half months. 20. Regard being had to the aforesaid facts the period of sentence imposed upon the petitioner is modified to the period already undergone. 21. This application stands dismissed with the aforesaid modification in sentence. Application dismissed.