Md. Ehatesamul Haque Ansari, S/o Enamul Haque Ansari, R/o – Village – Bhadawli Block v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 1494 of 2016 Md. Ehatesamul Haque Ansari, S/o Enamul Haque Ansari, R/o – Village – Bhadawli Block, P.O. + P.S. – Sisai, District - Gumla … … Petitioner Versus The State of Jharkhand … … Opposite Party --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner
Legal Reasoning
--- : Mr. Kaisar Alam, Advocate : Mr. Sanjay Kumar, Advocate : None --- Heard the learned counsels for the parties. For the Opp. Party 06/23.09.2024 2. 3. Nobody appears on behalf of the opposite party – State. This criminal revision has been filed against the judgment dated 22.08.2016 passed by the learned District and Additional Sessions Judge - II, Gumla in Criminal Appeal No.63 of 2015 whereby the appeal filed by the petitioner has been dismissed. The petitioner has been convicted in connection with G.R. No.879 of 2011 arising out Sisai P.S. Case No.158 of 2011 corresponding to T.R. No.266 of 2015 for offence under Sections 337 and 279 of Indian Penal Code (IPC) and he has been directed to undergo rigorous imprisonment for a period of six months for offence under Section 337 IPC and further undergo rigorous imprisonment for three months for offence under Section 279 of IPC. 4. The learned counsel for the petitioner, while assailing the impugned judgements, has submitted that though there are concurrent findings recorded by both the courts, the impugned judgments call for interference. The learned counsel submits that none of the witnesses have identified the petitioner as the driver of the vehicle, and the petitioner has been convicted merely on account of the deposition of the owner of the vehicle, who deposed that he had given the vehicle to the petitioner on hire for driving two months before the date of the incident. The learned counsel has further submitted that PW4, who is the informant of the case got confused with regard to the identity of the driver upon seeing the petitioner. He submits that in such circumstances, the identity of the petitioner as a driver of the offending vehicle, having not been proved, the petitioner is entitled for benefit of doubt. 5. The learned counsel has further submitted that without prejudice to the aforesaid submissions, the petitioner has remained in custody in connection with the case for a period of about 15 days. He had surrendered on 30.01.2017 during the pendency of this case and was enlarged on bail vide order dated 07.02.2017 and the bail bond was furnished before the court on 15.02.2017. The learned counsel has also submitted that the petitioner has been acquitted for offence under Section 304A of Indian Penal Code. He has also submitted that the case was registered on F.I.R on 04.10.2011 and the petitioner has faced the criminal case for 14 years, and therefore, some sympathetic view may be taken. He has also submitted that the offending vehicle was Maxi Cab Tempo bearing registration number JH-07D-1850. 6. After hearing the learned counsel for the petitioner and upon going through the materials on record, this Court finds that the prosecution was launched on the basis of fardbeyan of the informant, namely, Subhash Toppo, (PW4) which was recorded by the concerned police officer on 04.10.2011 at Referral Hospital, Sisai in connection with the occurrence which had taken place on 04.10.2011 against the tempo driver bearing registration number JH-07D-1850. 7. The prosecution case was that Subhash Toppo, (PW4) was going to Gumla and he was standing on the road. In the meantime, the said tempo came and he sat in the tempo. He alleged that the driver was driving the vehicle very rashly and negligently and at National Highway 23, the vehicle turned down on the road due to which the passengers sitting in the vehicle were injured. With the help of nearby people, they were brought to the Referral hospital. He has given the names of the persons who were treated in the hospital, but one victim died during the course of treatment. The petitioner faced the trial for offence under Sections 279, 337, 338 and 304A of Indian Penal Code. 2 8. At the stage of trial, altogether six witnesses were examined. PW1, PW2 are the victims, PW4 is the informant himself, PW5 is the owner of the vehicle, PW6 is the doctor and PW3 is the owner of the hotel. Certain documentary evidences were also exhibited. The injury reports of the victims were exhibited as Exhibit 3 to 3/3. The learned trial court considered the evidences on record and recorded its finding in paragraph no.17 of the judgment. From perusal of paragraph 17, it is apparent that PW1, PW2 and PW4 had claimed to identify the driver of the vehicle. However, PW4 got confused with respect to the identity of the driver. It has been recorded that PW1 and PW2 also claimed to identify the driver but on the day, they were examined, the petitioner was not present in the court. 9. This Court has gone through the evidences of PW1 and PW2, who were examined and cross-examined on the same day i.e. on 16.08.2012. Both these witnesses have claimed to identify the driver and had stated that the driver was not present in the court on that particular day. The order sheet of the learned court dated 16.08.2012 reveals that the petitioner was on representation which was allowed for that particular day. Meaning thereby, the petitioner was not physically present on 16.08.2012 and was on representation. In such circumstances, the argument of the learned counsel for the petitioner that none of the witnesses have identified the petitioner is not correct. This Court also finds that the owner of the vehicle had also deposed and he had clearly stated that the vehicle was given to the petitioner for the purposes of driving on hire and the said witness has not been cross-examined on this point. 10. Considering the totality of facts and circumstances and the materials brought on record, this Court is of the considered view that the petitioner has been duly identified as the driver of the offending vehicle, who was driving the vehicle in a rash and negligent manner. All the witnesses, who were victims had clearly stated that the petitioner was driving the vehicle in a rash and negligent manner. However, the petitioner was not convicted for offence under Section 304A because of the reason that the death report of the deceased 3 Budhmani Devi, who was also a passenger on the tempo, was not proved. It has been recorded that although the post-mortem report of the deceased was on record, but the same was not proved by the prosecution. The learned court has also recorded that orally all the witnesses had supported that Budhmani Devi died during the course of treatment. The learned trial court was of the view that the prosecution could not conclusively prove the death of Budhmani Devi and hence the benefit has been given to the petitioner. The finding in that connection is recorded in paragraph no.18 of the learned trial court judgment, which is as follows: “18. It is also relevant to mention here prosecution has not proved the death report of the Budhmania Devi, who was also going from the aforesaid auto and she was dead during course of treatment. Although postmortem report of the said deceased was on record but same was not proved by the prosecution although orally all the witnesses have supported that Budhmania Devi was dead during course of treatment. so prosecution has not conclusively proved the death of Budhmania Devi. Hence, benefit goes in favour of the accused.” 11. The petitioner has been ultimately acquitted under Section 304A of Indian Penal Code and held guilty for offence under Sections 279 and 337 of Indian Penal Code. The petitioner has been given the maximum punishment. So far as the appellate court is concerned, it has also scrutinized the materials on record and has given concurrent findings with regard to the conviction of the petitioner. 12. Having gone through the impugned judgments and the materials on record, this Court is of the considered view that the learned courts have given concurrent findings with regard to rash and negligent driving of the petitioner and that the petitioner was the driver of the offending vehicle. Accordingly, this Court finds no reason to interfere with the judgments of conviction of the petitioner in revisional jurisdiction. 13. So far as the sentence is concerned, the learned appellate court, while considering the sentence, was of the view that the sentence against the petitioner was sound and did not choose to interfere with the sentence. However, the fact remains that the petitioner has faced the criminal case for almost 14 years and has been convicted for 4 offence under Sections 337 and 279 of IPC, this Court is of the considered view that ends of justice would be met if the sentence is modified to some extent. No material to show previous conviction or pendency of any criminal case was brought on record. Accordingly, the sentence of the petitioner is reduced to 4 (four) months subject to payment of fine of Rs.500/- under Section 337 IPC and Rs.1,000/- under Section 279 Indian Penal Code. The fine amount be deposited within a period of 15 days from the date of communication of this judgment to the learned trial court. In case the fine amount is not deposited in terms of this order, the petitioner would serve the sentence given by the learned trial court and upheld by the learned appellate court. 14. The bail bond furnished by the petitioner is hereby cancelled. 15. This criminal revision is disposed of with the modification of sentence. 16. Let the records received be sent back to the court concerned. 17. Let a copy of this order be communicated to the court concerned through FAX/email. Saurav/- (Anubha Rawat Choudhary, J.) 5