Research › Search › Judgment

Jharkhand High Court · body

2022 DIGILAW 1010 (JHR)

Nathuni Sahu @ Nathuni Sao v. State of Jharkhand

2022-08-12

DEEPAK ROSHAN

body2022
JUDGMENT : Heard learned counsel for the parties. 2. This revision application is directed against the judgment dated 26.7.2004 passed by learned 4th Additional Sessions Judge, Palamau, Daltonganj in Criminal Appeal No.102/2000; whereby the judgment of conviction and order of sentence, both dated 21.8.2000, passed by the learned Judicial Magistrate, 1st Class, Daltonganj corresponding to G.R. No.25/94 in Trial No.351/2000; whereby the petitioner was convicted u/s 279, 337, 338, 304A IPC and was sentenced to undergo S.I. for Six months each for the offence under Sections 279, 337 IPC, and to undergo two years S.I. each for the offence under Section 338 and 304A IPC and the sentences were ordered to run concurrently, has been partly modified. The appellate court has partly allowed the appeal by modifying the judgment to the extent by acquitting the petitioner for the offence under Sections 337 and 338 IPC; however, sustained the conviction for the offence under Sections 279 and 304A IPC. 3. The prosecution case in short is that informant Mukesh Pandey and Sanjay Pandey proceeded from their house to go to Daltanganj and Ranchi when they reached main road, they saw that Niraj Bus was coming from the side of Garhwa at high speed. Sanjay Pandey gave signal with his hand to the bus driver to stop the bus, but as the bus driver was plying the bus in high speed rashly/negligently, the bus dashed into Sanjay Pandey and he fell down and sustained grievous injuries on his head and leg. After some time, he succumbed to injuries. On the basis of the written report, the instant case was registered and after investigation police submitted charge-sheet. Accordingly, charge was framed against the accused person for which he pleaded not guilty and claimed to be tried and finally he was convicted. 4. Mr. Sidharth Roy, learned counsel for the petitioner opposed the trial court judgment by submitting that though admittedly two persons died, however, so far as victim no.1 - Sanjay Pandey is concerned; the doctor has given specific report to the extent that the injury was due to hard and blunt weapon. Relying upon that opinion of the Doctor, learned counsel contended that if at all there was a rash and negligent driving by the petitioner there cannot be injury by hard and blunt weapon. Relying upon that opinion of the Doctor, learned counsel contended that if at all there was a rash and negligent driving by the petitioner there cannot be injury by hard and blunt weapon. It is also not the case of the prosecution that due to inadvertence of the doctor word weapon has been mentioned because the doctor has been duly cross-examined and tested in the examination. He further submits that so far as victim no.2 is concerned; the so-called eye witness P.W.3, who is the husband of the victim no.2, though supported the case but admitted in cross-examination that due to noise he fainted and he could not see what happened thereafter. Further, the post-mortem report of victim no.2 cannot be said to be proved as per the prescribed procedure by examining the doctor who conducted post-mortem; thus the petitioner deserves benefit of doubt. Relying upon the grounds learned counsel prays for acquittal. 5. Learned APP opposed the prayer made by the petitioner and submits that it was rash and negligent driving and both the victims died due to rash and negligent driving of the petitioner; however he could not defend the lacuna in the prosecution case, inasmuch as, though post-mortem of victim No.2 was conducted which alleged to arise due to subsequent accident but the said post-mortem report was never proved by the concerned doctor by his oral evidence. 6. Having heard learned counsel for the parties and after going through the judgments passed by the courts below including the LCR it appears that on 4.01.1994 at about 5 a.m. the informant and Sanjay Prasad proceeded from their house to go to Daltonganj and Ranchi. When they came at Pakka road, one bus was coming from the side of Garhwa in high speed. Looking to the bus, Sanjay Pandey gave a signal to stop the said bus. It is alleged that the driver was plying the bus in high speed and dashed into Sanjay Pandey who fell down and sustained injuries on his head and leg and after some time he succumbed to injuries. The informant along with other brought the said victim to Sadar Hospital Daltanganj, however he was declared dead. Thereafter, the said bus dashed one house of Inderjit Dusadh and the wife of Inderjit Dusadh died due to the second accident. 7. Thus, in the case at hand there were two places of occurrence. The informant along with other brought the said victim to Sadar Hospital Daltanganj, however he was declared dead. Thereafter, the said bus dashed one house of Inderjit Dusadh and the wife of Inderjit Dusadh died due to the second accident. 7. Thus, in the case at hand there were two places of occurrence. On the first place of occurrence, the said bus dashed Sanjay Pandey who finally declared dead by the Doctor of Sadar Hospital, Daltanganj. The second place of occurrence is the place where the said bus driver after the first accident continued high speed of driving and dashed the bus into the house of Inderjit Dusadh and due to that accident, his wife died. 8. It further transpires from the deposition of the Doctor that for the first victim-Sanjay Pandey, he had given a specific report that the injury was due to hard and blunt weapon. At this stage, it is relevant to state that though the Doctor in his deposition has categorically stated that “In my opinion death was due to shock and hemorrhage caused by hard and blunt weapon”; however, the learned appellate court has misdirected itself by holding that death was due to shock and hemorrhage caused by hard and blunt substance. Though the trail court has mentioned correct deposition. This Court fails to understand that when there was an accident how could be any injury due to hard and blunt weapon. This fact has totally been ignored by the trial court as well as by the appellate court. Thus, the petitioner deserves benefit of doubt in his favour. 9. Now coming to the second accident, the facts of the case is that there was a lady who was sleeping in the room and died due to subsequent accident and her Husband-P.W.3 though supported the prosecution case but admitted in cross-examination that due to noise he fainted and he could not see what happened after the accident. For the second accident and death of the victim no.2, the post-mortem report of victim no.2 cannot be said to be proved as per the prescribed procedure either by examining the Doctor who conducted post-mortem and prepared the report or any person who had acquaintance with the handwriting of the Doctor who prepared the report. For the second accident and death of the victim no.2, the post-mortem report of victim no.2 cannot be said to be proved as per the prescribed procedure either by examining the Doctor who conducted post-mortem and prepared the report or any person who had acquaintance with the handwriting of the Doctor who prepared the report. In this regard, reference may be made to the case of Munna Kumar Versus State of Bihar reported in 2005 (12) SCC 209 wherein the Hon’ble Apex Court at para-3 has held as under : 3. "One significant aspect of this case is that the post-mortem examination produced by the prosecution was neither proved by the examining doctor who prepared it nor any person who had any acquaintance with the handwriting of the doctor was examined on the side of the prosecution. An advocate's clerk was examined to prove the post-mortem examination. He candidly admitted in the cross-examination that he had no acquaintance with the doctor who prepared the post-mortem examination and that he had no familiarity with the handwriting of the doctor. Therefore, it is clear that the post-mortem report was not proved as per the prescribed procedure. On this basis, counsel for the appellant contended that the prosecution evidence would not show the cause of death of Ashok Kumar and it is submitted that the prosecution failed to prove the offence of murder against the appellant. We find some force in this contention. The prosecution should have produced the best evidence by proving the post-mortem certificate. It should have examined any person who had some acquaintance with the handwriting of the doctor who prepared the post-mortem report, either one of his colleagues or anybody who had been working in the hospital where the doctor worked. The prosecution failed to produce the best evidence and the appellant is certainly entitled to the benefit of doubt arising out of this." Further, in the case of Ghulam Hassan Beigh Versus Mohammad Maqbool & Others reported in 2022 SCC Online SC 913 the Hon’ble Apex Court vide its order dated 26th July’2022 has reiterated the view and held as under : “31. The post mortem report, by itself, does not constitute substantive evidence. The post mortem report, by itself, does not constitute substantive evidence. Whether the “cardio respiratory failure” had any nexus with the incident in question would have to be determined on the basis of the oral evidence of the eye witnesses as well as the medical officer concerned i.e. the expert witness who may be examined by the Prosecution as one of its witnesses. To put it in other words, whether the cause of death has any nexus with the alleged assault on the deceased by the accused persons could have been determined only after the recoding of oral evidence of the eye witnesses and the expert witness along with the other substantive evidence on record"...... In the instant case, there is no deposition to the extent that the Doctor who has proved the signature had any acquaintance with the other Doctor who conducted the post-mortem and prepared the report of the victim no.2. All these aspects has been completely ignored by the Trial Court or the Appellate Court. Accordingly, the prosecution has failed to prove the case beyond all shadow of reasonable doubts. 10. The I.O. has not been examined in this case so as to prove the time and place of occurrence as well as the manner of the occurrence; which was very necessary in the facts and circumstances of the case. Merely driving a vehicle in “High Speed” does not and cannot attract the charge of “Rash and Negligent Driving”. Reference in this regard may be made to the Judgment passed in the case of State of Karnataka Versus Satish wherein the Hon’ble Apex Court has held as under : 4. Merely because the truck was being driven at a “high speed” does not bespeak of either “negligence” or “rashness” by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by “high speed”. “High speed” is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by “high speed” in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of “rashness” or “negligence” could be drawn by invoking the maxim “res ipsa loquitur”. There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case. In the instant case, except the statement of the informant that the Bus was coming in high speed; nothing came out with respect to rash and negligent driving as the I.O. of the case has not been examined. All these goes to show that the trial court has mechanically convicted the petitioner and overlooked many vital lacunae in the prosecution case. 11. Consequently, the judgment dated 26.7.2004 passed by learned 4th Additional Sessions Judge in Criminal Appeal No.102/2000; whereby the judgment of conviction and order of sentence dated 21.8.2000 passed by the learned Judicial Magistrate, 1st Class, Palamau at Daltonganj corresponding to G.R. No.25/94 in Trial No.351/2000 has been partly affirmed, is hereby, quashed and set aside. 12. The petitioner shall be discharged from the liability of his bail bonds. 13. Accordingly, the instant criminal revision application, is hereby, allowed and disposed of. 14. Let a copy of this order be communicated to the court below and also to the petitioner through the officer-in-charge of concerned police station. 15. Let the lower court record be sent to the court concerned forthwith.