Shakur Minya @ Sakur Mian @ Md. Sakur, aged about 36 years, s/o Ashif v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Revision No. 56 of 2022 Shakur Minya @ Sakur Mian @ Md. Sakur, aged about 36 years, s/o Ashif Minya @ Ashif Mian, r/o Village-Kundari, PO-Kundari, PS-Lesliganj, District-Palamau ... … Petitioner Versus The State of Jharkhand … ... Opposite Party CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the State : Mrs. Rakhi Rani, Advocate : Mr. P. D. Agarwal, Spl. PP ------- Order No. 9/Dated: 23rd February 2024 1. 2. Heard the learned counsel for the parties. This criminal revision petition has been preferred against the judgment dated 12.07.2018 passed by the learned Additional Sessions Judge-III, Daltonganj, Palamau in Criminal Appeal No. 74 of 2014 whereby the appeal filed by the petitioner has been dismissed and the learned Additional Sessions
Facts
Judge-III has confirmed the judgment of conviction and order of sentence dated 25.09.2014 passed by the learned Judicial Magistrate, 1st Class, Daltonganj in connection with G.R Case No. 2300 of 2010/Trial No. 847 of 2014 arising out of Lesliganj PS Case No. 79 of 2010 by which the petitioner was held guilty for the offence punishable under Sections 279, 337 and 304-A IPC. The petitioner has been sentenced with substantive punishment to undergo RI for 3 months for the offence under Section 279 IPC, 3 months for the offence under Section 337 IPC and 2 years for the offence under section 304-A IPC. However, no fine has been imposed and all the sentences have been directed to run concurrently. 3.
Legal Reasoning
23.12.2022 and when a bail order was passed by this Court in favour of the petitioner a few days must have been taken by the petitioner to furnish the bail bonds. The learned counsel submits that the custody of the petitioner in connection with the present case is more than one year and there is no previous conviction of the petitioner. The learned counsel also submits that 3 Criminal Revision No.56 of 2022 the petitioner has also suffered long proceedings which commenced right from the year 2010 and considering the nature of the incident, in case this Court is not inclined to set aside the order of conviction, the sentence be modified to the extent of the period already undergone. 8. The learned counsel for the State has opposed the prayer and submitted that both the Courts have returned concurrent findings and there is no scope for re-appreciation of evidence by this Court in revisional jurisdiction and come to a different finding as there is no perversity or material irregularity in the impugned judgements. However, so far as modification of sentence is concerned, the learned counsel for the State has nothing to say and submits that it is for the Court to pass an appropriate order. 9. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that as per the prosecution case the informant had boarded the Tempo along with his uncle (fufa) and when it reached near the bridge the Tempo lost its control and turned turtle. The incident had taken place due to rash and negligent driving of the petitioner and his uncle (fufa) sustained serious injuries and when brought to the hospital, he was found dead. It is also alleged that the informant and other passengers had also sustained injuries. 10. The FIR was registered as Lesliganj PS Case No. 79 of 2010 dated 04.11.2010 under Sections 279, 337, 338 and 304-A IPC against the petitioner. Chargesheet was submitted and cognizance of the offence was taken under Sections 279, 337 and 304-A IPC. The substance of accusation was explained and the petitioner pleaded not guilty. His statement was recorded under Section 313 Cr.P.C after the evidence of the prosecution and he claimed to be innocent. 11. Altogether seven witnesses were examined before the learned trial Court and all the witnesses have supported the prosecution case. The PWs-1,2 and 3 have stated in their evidence that on 26.10.2010 they came to know that the deceased had expired due to accident by the Tempo and the accident had taken place in the evening on 25.10.2010 and upon information they went to the hospital. PW4-Dr. Sushil Kumar Pandey had examined the informant on 25.10.2010 at around 10:45 PM and following injuries were found: “(i)Bruise 1’ x 1’ over left parietal area of scalp 4 Criminal Revision No.56 of 2022 (ii) Abrasion on left leg ½’ x 1/2’ (iii) Complaining chest pain but no internal injuries seen.” 12. PW4 deposed that the nature of injuries was simple and caused by hard and blunt object. The injury report was exhibited and marked as Exhibit-1. PW4 had stated that such type of injury could be caused by motor accident. 13. PW7-Dr. Birendra Prasad had conducted the postmortem over the dead body of the deceased and he had recorded the antemortem injuries as follows: “(i) Rigor-Mortis was present in both upper and lower limb. (ii) Lacerated wound 3 ½”x 1 ½” x 1” on left lid wound bandaged. (iii) On opening abdomen the cavity was filled with blood spleen and liver both were raptured. On opening stomach it contained semi-digested food.” 14. The cause of death was shown to be shock and hemorrhage arising out of the aforesaid injuries. The postmortem was conducted in the morning at 09:15 AM in Sadar hospital on 26.10.2010 and the time of death was since 8 to 24 hours. The postmortem report was exhibited and marked as Exhibit-4 and he was duly cross-examined and he stated in his cross-examination that such type of injuries may be caused by falling from high place on hard surface. 15. So far as the informant is concerned, he has been examined as PW6 as an injured eye-witness who is one of the victims of the occurrence. He has fully supported the case of the prosecution. He has mentioned about the occurrence and he has also stated that the Tempo was being driven rashly and negligently and he had warned the driver and asked him to drive slowly but the driver did not take care and accident took place and the Tempo turned turtle. He gave information to the police and FIR was lodged which was marked as Exhibit-3. During cross-examination, he has stated that he did not know the accused prior to the occurrence but on a question, he said that the details of the driver were asked by his uncle (fufa) from the driver before the occurrence. He has stated that he had boarded the Tempo at 06:30 PM. He admitted that there was dark at the time of occurrence and his eye-sight is not proper in the dark. He has admitted that after the occurrence he had seen the accused for the first time in the Court. The investigating officer of the case has been examined and also cross-examined and has supported the case and has also stated that he had recorded the statement of the witnesses and has also described the place of occurrence. It has also come in evidence that the petitioner is also the owner of the Tempo and he had received the said Tempo after release. Considering the totality of evidence particularly the evidence of 5 Criminal Revision No.56 of 2022 the eye-witness-injured-informant read with the evidence of the doctor who had examined the injured eye-witness-informant in the late evening on the same day of the incident i.e 25.10.2010 and also the evidence of the doctor who had conducted the postmortem on the deceased in the morning at 09:15 AM in Sadar Hospital on 26.10.2010 mentioning the time of death since 8 to 24 hours, this Court finds that the prosecution has proved the case beyond all reasonable doubts and contradictions in the evidence of the witnesses is not fatal to the prosecution case. The investigation officer of the case has fully supported the incident with the time, place and the manner of occurrence and he has been cross-examined and there is no cross-examination of the informant in connection with the time of the incident though during cross- examination he has stated that he boarded the Tempo at 06:30 PM. This Court is of the considered view that the said contradictions as pointed out by the learned counsel for the petitioner are not material contradiction calling for any interference in revisional jurisdiction. 16. The learned trial Court after considering the evidences, recorded a finding in paragraph no.16 as under: “16. In the light of argument advanced on behalf of both the sides, I would like to appreciate the evidence available on record. On appreciation I find that in this case prosecution has examined seven witnesses in this case and all of them supported the occurrence. PW-1 to PW-3, however, are hearsay witness but all of them have stated that this accident has taken place due to rash and negligent driving of Sakur Mian. PW-4 has corroborated the prosecution case by deposing that on 25.10.2010 he examined the victim Mahendra Paswan who is eye witness of this case. I.O of the case conducted investigation and after completing investigation he has filed charge sheet against the accused Sakur Mian. It is to be noted that a document has been exhibited by the defence as Ext. A in which he has identified the signature of Sakur Mian. The accused is owner of the tempo and he has received the said tempo after release. It is true that there is some lacuna in the investigation but it is not fatal for the prosecution. PW-6, who is eye witness cum victim of this case has clearly stated that this accident has taken place due to rash and negligent driving of the driver. It is also stated that he had warned the accused to go slow but the driver of the tempo did not take care about it and turned the tempo turtle. This witness has identified the accused by saying that he is the person who was driving the vehicle at the relevant time and place. The death of the deceased Budhan Ram is not challenged and is undisputed. PW- 7 who has conducted the post-mortem of the deceased has corroborated the fact. In this case identification is totally proved that this accused i.e Sakur Mian was driving the vehicle. It is also proved that this accident took place due to his rash and negligent driving. Informant had sustained injuries on the public way and the act of the accused was dangerous to the human life. So, the basic ingredients of Section 279, 337 and 304A of IPC are totally proved.” 17. The learned trial Court held the petitioner guilty for the offence under the aforesaid Sections and imposed the punishment as aforesaid. 6 Criminal Revision No.56 of 2022 18. So far as the appellate Court is concerned, the appellate Court has also considered the materials on record and gave concurrent findings. 19. The findings of the learned appellate Court are recorded in paragraph nos.20 and 22 of the judgement which are quoted as under: “20. Having considered the entire facts and cirucumstances of the case and as well as evidence and argument advanced on behalf of both the sides, as stated above, I find that P.W.6 is injured-cum-informant of this case, he deposed that on the date of occurrence he going to Kundari along with his uncle by the Tempoo was turned turtle he became unconscious and got his sence in Hospital and he find that his uncle was death accident and said Tempoo was being driven by the accused and in result thereof the Tempoo was turned turtle, the Doctor PW-7 conducted the postmortem of the deceased and found the antemortem injuries:- Rigor-Mortis was present in both upper and lower limb. Lacerated wound 3 ½” x 1 ½” x 1 on left lid wound bandaged. (i) (ii) (ii) On opening abdomen the cavity was filled with blodd spleen and liver both were raptured. Cause of death was due to shock and hemorrhage by the above mentioned injuries. 21. Further I find that accident was proved by other P.W. also and P.W.6 proved the accident caused by rash and negligent driving of the accused appellant. Therefore I find and hold that there is sufficient material, evidence against the appellants given by prosecution witness and they have fully supported the case of prosecution. It is true that there are few contradictions in the evidence but said contradiction creeping in there evidence is very trivial in nature and not touching the core and spectrum of the prosecution case. Therefore, the evidence of prosecution witnesses i.e the informant and eye witness P.W.-6, although no any independent witness has came to support the case of prosecution but there is no contradiction in evidence of P.W.6 22. Having regard to the fact of circumstances of the case, I find that the case of persecution have been proved by the witnesses beyond the shadow of reasonable doubts and learned court below has meticulously considered all the evidence on record in proper perspective and rightly come to conclusion in convicting and sentenced the appellant u/s 279, 337 & 304A IPC. Thus, there is no legal infirmities and illegality in the impugned judgment and order of the learned Court below and he was found guilty u/s 279, 337 & 304A IPC.” 20. This Court finds that there are concurrent findings recorded by both the Courts. The contradictions which have been pointed out by the petitioner are not material. The incident is not in dispute. The informant of the case has been examined and thoroughly cross-examined. This Court finds that the evidence of the informant who is also an injured witness is consistent, reliable and trustworthy on which both the Courts have relied upon. This Court does not find any reason to differ with the findings recorded by the learned trial Court as upheld by the learned appellate Court. No material irregularity or perversity has been pointed out by the learned counsel for the petitioner to call for any interference in revisional jurisdiction. So far as the conviction of the petitioner is concerned, the same does not call for any interference. 21. However, so far as the sentence is concerned, it requires consideration. 7 Criminal Revision No.56 of 2022 As submitted by the learned counsel for the petitioner, the petitioner has remained in custody for more than one year in connection with the present case. This Court finds that the petitioner has been facing the criminal case since 2010 and as per the records the present offence is his first offence. This Court is of the view that the ends of justice would be served if the period of sentence awarded to the petitioner is modified. 22. Accordingly, the period of sentence awarded to the petitioner is modified to the extent of period already undergone by the portioner in custody with the fine of Rs.25000/-. The learned Court is directed to verify the period of custody of the petitioner in connection with the present case which should be more than a year till today. If the fine amount is not deposited the petitioner would serve the remaining sentence imposed by the learned trial Court as upheld by the learned appellate Court. 23. The entire fine amount is directed to be remitted to the legal heirs/legal representative of the deceased of the case after due identification. 24. Accordingly, this criminal revision petition is disposed of with the aforesaid modification in the sentence awarded to the petitioner. 25. Let a copy of the order be transmitted to the Court concerned forthwith. Amit (Anubha Rawat Choudhary, J.)
Arguments
The learned counsel for the petitioner has submitted that the alleged incident had taken place on 25/26.10.2010 and the FIR was registered only on 04.11.2010 by the informant who is said to be the injured person in the accident and was a passenger in the vehicle. The learned counsel has submitted that there is no explanation for delay in registering the FIR which was registered on 04.11.2010. 4. The learned counsel has submitted that altogether seven witnesses were examined and three of them were hearsay witnesses and the material 2 Criminal Revision No.56 of 2022 witnesses are PW6-the informant/injured witness and PW5-investigating officer of the case. The injured witness (PW-6) was examined by PW4-Dr. Sushil Kumar Pandey and the postmortem of the deceased was conducted by PW7-Dr. Birendra Prasad. The sole eye-witness in the present case is PW6 (informant-injured witness) and in order to sustain the conviction, the evidence of PW6 should be not only reliable but also trustworthy and his evidence must be consistent. 5. The learned counsel submits that PW6 has stated that the police had taken his statement after three or four days of the incident but the FIR was lodged much later and accordingly there was no occasion to take a statement just two or three days after the incident. The learned counsel submits that there is contradiction in connection with the time of incident also. The learned counsel submits that PW5-investigating officer has stated that in the re-statement, the informant (PW-6) had stated that the informant and the deceased had boarded the Tempo on 25.10.2010 at around 05:30 PM but the time of boarding has been said to be around 06:30 PM in the evidence of PW6. It is also submitted that PW-5 during his examination-in-chief has stated that as per the fardbeyan of the informant he had boarded the Tempo at 05:30 PM and the incident had taken place at 07:00AM which is a material contradiction in the evidence of the informant as compared with the evidence of the investigating officer of the case. 6. The learned counsel submits that the basic element of rash and negligent driving is completely missing in the present case and therefore also the order of conviction passed by the learned trial Court and confirmed by the learned appellate Court is perverse which calls for interference by this Court. 7. The learned counsel has further submitted that as per the evidence of the investigating officer the petitioner was released on bail on 30.11.2010; the vehicle was released on 11.12.2010; and during pendency of the present revision petition the petitioner has remained in custody from 06.01.2022 to