Mukesh Kumar Gupta v. The State of Bihar

affirmed in appeal under judgment dated 26th February 2013 passed in Criminal Appeal No. 57 of 2007/5 of 2011.

The prosecution case is that the tractor in question met with an accident on 7.2.2001 at about 4 p.m in which Suresh Paswan, brother of the informant, P.W.4 Yogendra Paswan was 2 Patna High Court CR. REV. No.546 of 2013 (5) dt.12-06-2013 crushed to death. It is stated that the petitioner was negligent in driving the tractor which was engaged in transportation of bricks by means of a trailer and the deceased came under the wheels of the tractor which led to his death.

In support of the prosecution case P.W.1 Birbal Pandit, P.W.2 Gopal Paswan, P.W.3 Surendra Paswan, informant P.W. 4 Yogendra Paswan and P.W. 5 Jai Prakash Paswan have been examined. Relying on the aforesaid prosecution evidence as also the admission of the petitioner that he was the driver of the aforesaid tractor, the trial Court convicted the petitioner and directed him to serve sentence as stated above. The aforesaid conviction having been affirmed in appeal, this revision has been filed questioning the judgment of the trial Court and the appellate Court on the ground that prosecution witnesses P.W.1 to 6 including the informant P.W.4 are hearsay witnesses and no eye witness having been examined to support the accident in which the brother of the informant was crushed the two impugned judgments be set aside and the petitioner be acquitted. In this connection it is also pointed out that from perusal of the First Information Report it would appear that informant learnt about the accident from one Bhola Manjhi. Bhola Manjhi having not been examined as a witness the prosecution case should have been rejected for failure 3 Patna High Court CR. REV. No.546 of 2013 (5) dt.12-06-2013 to examine Bhola Manjhi. It is further submitted on behalf of the petitioner that from the evidence of the informant P.W.4 it would further appear that in Court informant has become an eye witness which is departure from the prosecution case set out by him in the First Information Report.

From perusal of the First Information Report it appears that in First Information Report the informant claimed to have learnt about the occurrence from Bhola Manjhi but in Court he deposed that while he and the deceased were returning from the market both informant and the deceased came to tea shop and while the informant was taking tea his brother the deceased moved 10 steps ahead and the tractor bearing No. BR 2B 4089 came from behind and crushed him and thereby the informant while deposing in Court has himself become an eye witness of the accident.

The departure made by informant from prosecution story as told by him in the First Information Report and as disclosed in the Court was required to have been put to the informant by the defence under Section 145 of the Evidence Act. The attention of the informant having not been drawn towards the departure made by him in the prosecution story made in Court is therefore hit by Section 145 of the Evidence Act and the advantage which the counsel for the petitioner desires to take in 4 Patna High Court CR. REV. No.546 of 2013 (5) dt.12-06-2013 these proceedings cannot be granted. The petitioner having remained in jail custody for hardly one month as such this Court is not inclined to direct that the ends of justice will be served by reducing his sentence to the period already undergone by the petitioner in jail custody. The petitioner in my opinion should at least serve custody of six months which may suffice the ends of justice.

Before parting with this order I would like to mention that MACT Case No. 24/02 was filed under Section 140 of the Motor Vehicle Act 1989 for payment of interim relief of Rs. 50000/- to the victim/his dependents which was allowed and payment made under Cheque No. 4349632 dated 4.12.2003. Having received the interim relief the dependents of the victim filed MACT Case No. 5/05 under Section 166 of the MV Act which is pending before the Motor Vehicle Tribunal as the validity of the driving licence No. 967/2000-2001 dated 26.02.2001 is under investigation by the Tribunal at the instance of the Insurance Company. It is submitted by Sri Bimlesh Kumar Jha, learned counsel for the Insurance Company that the date of accident being

7.2.2001, the driving licence having been issued on 26.2.2001 the Insurance Company is not liable to pay compensations to the victim under Section 166 M.V. Act for the reason that on the date 5 Patna High Court CR. REV. No.546 of 2013 (5) dt.12-06-2013 of accident the petitioner (owner-cum-driver) was not having a valid driving licence. The claim of the Insurance Company in my opinion appears to be misconceived in view of the report of the DTO contained in letter No. 760 dated 11.6.2013 received in the office of the Joint Registrar (Judicial) Patna High Court, Patna who is also in charge of the High Court Legal Add Committee and was requested by this Court to obtain the date of application which was filed by the petitioner for obtaining driving licence No. 967/2000-2001. Judicial notice can be taken by this Court of the fact that in the year 2000-2001 the number of Motor Vehicle Inspectors functioning in the State was not adequate and several districts of the State were in charge of one DTO the DTO in charge of the District use to visit the District concerned at an interval of one month or more and thereby application for driving licence used to remain pending for months together for conducting driving test by the Motor Vehicle Inspector on whose recommendations driving licence is granted to the applicant. Having taken note of the said fact this Court requested Joint Registrar to obtain report from DTO, Gaya who has stated in his letter no. 760 dated 11.6.2013 that it could not be possible for him to furnish the date of application on the basis of which driving licence No. 967/2000-2001, Gaya dated 26.2.2001 was furnished 6 Patna High Court CR. REV. No.546 of 2013 (5) dt.12-06-2013 to the petitioner as the application and the other things kept in the DTO’s Office including the original application was consigned to flame in a fire which engulfed the DTO office Gaya in the year

2006. Licence register however maintained in the office, does not indicate the date of the application. The date of application on the basis of which aforesaid driving licence No. 967/2000-2001 dated

26.02.2001 was issued is not available in the office of the DTO. The dependents of the deceased cannot be asked to suffer for failure to provide the date of application of the driving license of the petitioner. According, I direct the Additional District Judge-II-cum Accident Claim Tribunal, Jehanabad in MACT Case No. 5/05 filed under Section 166 MV Act to take notice of the facts noted above in this present order and to pass appropriate orders in the compensation matter taking the age and income of the deceased Suresh Paswan. Appropriate orders in this regard be passed by the Tribunal within four weeks. Let the copy of this order be forwarded to the Tribunal concerned for the needful by the Office of the High Court through Fax. Bibhash/- (V.N. Sinha, J)