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2017 DIGILAW 979 (JHR)

Ganga Ram Sardar v. State Of Jharkhand

2017-06-20

RONGON MUKHOPADHYAY

body2017
JUDGMENT Rongon Mukhopadhyay, J. – Heard Ms. Amrita Banerjee, learned counsel appearing on behalf of the petitioner and Mr. Shekhar Sinha, learned counsel for the State. 2. In this application, the petitioner has challenged the judgment dated 18.01.2002 passed by the learned 5th Additional Sessions Judge, Hazaribagh in Criminal Appeal No. 253 of 1998 whereby and where under the judgment and order of conviction and sentence dated 16.09.1998 passed by the learned Judicial Magistrate 1st class, Hazaribagh in G. R. No. 2029 of 1997 convicting the petitioner for the offences under Sections 279 and 304(A) of the I.P.C. and sentencing him to undergo R.I. for one year 6 months has been affirmed. 3. The prosecution story as would appear from the FIR is that the informant along with his nephew had gone to the house of his daughter at Charhi and on the next day when he was returning on a trekker, a trailor was coming with high speed at which driver of the vehicle stopped the vehicle on the left side of the road, but the trailor dashed against the trekker leading to the nephew of the informant suffering injury and in course of his treatment, he died. It is alleged that the trailor had fled away after dashing the trekker. On the basis of the aforesaid allegation, Mandu (Charhi) P. Section Case No. 170 of 1997 was registered for the offences under Section 279/304(A) of I.P.C. After investigation culminated in submission of charge-sheet, cognizance was taken and on transfer of the case to the court of learned Judicial Magistrate 1st class, Hazaribagh, charges were framed and thereafter trial proceeded. Since the prosecution has been able to prove its case beyond all reasonable doubt, the petitioner was convicted under Sections 279/304(A) of I.P.C. and was sentenced to undergo R.I. for one year and 6 months for the offence under Section 304(A) of I.P.C. The petitioner preferred an appeal being Criminal Appeal No. 253 of 1998 which however was dismissed by the learned 5th Additional Sessions Judge, Hazaribagh on 16.09.1998. 4. In course of trial, 5 witnesses were examined on behalf of prosecution. P.W. 1 - Biraj Sao who is the informant is the uncle of the deceased. 4. In course of trial, 5 witnesses were examined on behalf of prosecution. P.W. 1 - Biraj Sao who is the informant is the uncle of the deceased. This witness has stated that when he was returning along with his nephew (deceased) from the house of his daughter in a trekker, a trailor was found coming in high speed which forced the driver of the trekker to park the vehicle on the left side of the road. This witness has stated that the trailor bearing registration no. NL-05(A)/4288 driven in rash and negligent manner dashed against the trekker in which his nephew sustained injury on his head and in his right hand and in course of treatment, he died. This witness has also stated that he had seen the petitioner as the driver of the trailor who had leaned out which enabled this petitioner to see his face. P.W. 1 has further stated that he become unconscious after the accident. This witness has also stated that driver of another vehicle had noted the number of the offending vehicle. P.W. 2 - Baleshwar Prasad Singh is the Investigating Officer of the case who had identified the formal FIR, the signature of the Officer Incharge, Charhi O.P., the endorsement on the Fard Beyan which have been variously marked as exhibits. This witness after being handed over the investigation had recorded the statement of P.W. 4 and P.W. 5 who happens to be the driver and cleaner of the trekker. This witness has stated that the registration no. of the trailor was NL-05(A)/4288 and its owner was Narendra Singh of Jamshedpur. P.W. 3 - Dr. Mahendra Prasad Choudhary had conducted the Post Mortem on the body of the deceased and in his opinion he has stated the cause of death due to shock and haemorrhage on account of injuries on vital organs caused by hard and blunt substance. The post mortem report was marked as Exhibit 5. P.W. 4 - Md. Rasid was the driver of the trekker and while he was coming from Ramgarh, he found one trailor coming from opposite side which dashed against his trekker and thereafter fled away. This witness has stated that he could not see the registration no. of the trailor. P.W. 5 - Md. P.W. 4 - Md. Rasid was the driver of the trekker and while he was coming from Ramgarh, he found one trailor coming from opposite side which dashed against his trekker and thereafter fled away. This witness has stated that he could not see the registration no. of the trailor. P.W. 5 - Md. Ismile Khan is the cleaner of the trekker, who has stated about the trailor dashing against the trekker as a result of which the passengers sitting in the road side of the trekker had become injured. 5. Ms. Amrita Banerjee, learned counsel for the petitioner has stated that the vehicle after the accident was never examined which is in violation of the mandatory provisions of Section 135 and 136 of the Motor Vehicles Act. It has further been stated that the number of trailor could not be ascertained. She also submits that there are vital contradictions in the statement of the witnesses with respect to the manner of the accident. 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 imposed upon the petitioner may suitably be modified in view of the fact that the petitioner is facing the rigors of the prosecution case for the last 2 decades. 6. Learned A.P.P. for the State opposed the prayer and has stated that all the witnesses have consistently stated about the trailor having dashed against the trekker leading to the death of the nephew of P.W. 1. It has been stated that the vehicle number was established in view of the application for release filed by the owner of the trailor. 7. From the perusal of the evidence adduced by the witnesses, it is proved beyond doubt that the trailor was being driven in a rash, negligent and cavalier fashion and in spite of best efforts made by the P.W. 4, the driver of the trekker to avoid the trailor, the trailor dashed against the trekker leading to the death of the nephew of the P.W. 1. P.W. 1, 4 & 5 are the eye-witness to the occurrence and more or less they have stuck to a similar version with respect to the manner of the accident. P.W. 1, 4 & 5 are the eye-witness to the occurrence and more or less they have stuck to a similar version with respect to the manner of the accident. So far as P.W. 2 is concerned, he is the investigating officer of the case who in course of his investigation had found that the petitioner was the driver of the trailor. Although, there is nothing on record to suggest that the Motor Vehicle Inspector had not inspected the trekker in question, but such non-inspection would not render the prosecution case doubtful as the oral evidence substantially proves the incident. So far as the identification of the petitioner as a driver of the offending vehicle is concerned, it appears that while executing the bail bond on behalf of the petitioner, the owner of the trailor had confirmed that on the fateful date, trailor was being driven by the petitioner. Thus the identification of the petitioner as the driver of the trailor has also been sufficiently proved. 8. On consideration of the facts noted above, the learned trial court had rightly convicted the petitioner for the offence under Section 279/304(A) of I.P.C. and which has been rightly affirmed in appeal. There being no reason to conclude otherwise, the judgment of conviction against the petitioner is hereby sustained. However, with respect to the sentence which has been awarded to the petitioner is concerned, the petitioner seems to be facing the rigors of the prosecution case since the year 1997. The petitioner has also remained for some time in custody. Such fact would definitely entitle the petitioner for reconsideration of the sentence imposed by the learned trial court. The sentence in view of the above, is thus modified to the period already undergone by him in custody. 9. This application stands dismissed with the aforesaid modification in sentence.