Birendra Kumar Mehta aged about 36 years, son of Bhuneshwar Prasad Mehta, R/o Village v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 206 of 2019 Birendra Kumar Mehta aged about 36 years, son of Bhuneshwar Prasad Mehta, R/o Village- Shekha, P.O. and P.S. Muffasil, District- Petitioner Hazaribag … … Versus The State of Jharkhand … --- … … Opp. Party CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the Opp. Party --- : Mr. H.K. Shikarwar, Advocate : Mr. Sanjay Kumar Srivastava, Advocate --- 06/12.04.2024 2. Learned counsel for the parties are present. This criminal revision has been filed against the judgment dated 21.01.2019 passed by the learned Sessions Judge, Hazaribag in Criminal Appeal No. 98 of 2018 whereby the criminal appeal filed by the petitioner has been dismissed. 3. The petitioner has been convicted vide judgment of conviction and order of sentence dated 26.06.2018 passed by the court of learned Chief Judicial Magistrate, Hazaribagh in connection with Sadar P.S. Case No. 47 of 2013 corresponding to T.R. No. 584 of 2018 whereby the petitioner has been convicted under Sections 279 and 304A of the Indian Penal Code and has been sentenced to undergo simple imprisonment for three months and fine of Rs. 500 for the offence under Section 279 of IPC with default clause and has been further sentenced to undergo simple imprisonment for one year and fine of Rs. 500 for the offence under Section 304A of IPC with default clause and both the sentences have been directed to run concurrently. 4. The learned counsel for the petitioner has confined his arguments on the point of sentence. 5. He has submitted that unfortunate incident had taken place in which a boy aged 21 years was killed in a road accident while he was going for taking tuition. He has submitted that the petitioner was driving the vehicle and was caught on the spot and death had also happened on the spot. The learned counsel submitted that the petitioner has faced the criminal case for a period of more than 11 1 years and has remained in custody for a period of more than 1½ months from 29.03.2019 to 17.05.2019. The learned counsel has also submitted that the petitioner does not have any other criminal antecedent or criminal case and these aspects of the matter be taken into consideration and sentence be modified. 6.
Legal Reasoning
Learned counsel appearing on behalf of the opposite party-State has submitted that so far as the conviction is concerned, there is no illegality or perversity calling for any interference, but the heavy vehicle Hywa truck was being driven in rash and negligent manner and therefore the allegation against the petitioner stood proved. So far as the sentence is concerned, he submitted that it is for the Court to consider the same. However, at the same time he has submitted that if this Court is inclined to modify the sentence, the fine amount be enhanced and can be remitted to the family of the victim. 7. learned counsel for After hearing the the parties and considering the impugned judgments, this Court finds that the F.I.R. was instituted 15.01.2013 for the offence under Sections 279, 304A of IPC against the driver of Hywa truck no. JH-02Q-5151. When the victim was going on a bicycle, 10 wheeler Hywa being driven by the petitioner dashed him from back side and he fell down and ultimately got crushed and died on the spot. After completion of investigation the charge sheet was submitted on 07.04.2013 under Sections 279, 304A of the Indian Penal Code and cognizance of the offence was taken on 07.06.2013. The substance of accusation was explained to the petitioner on 21.02.2014 to which he pleaded not guilty and claimed to be tried. At the stage of evidence, five witnesses were examined from the side of the prosecution. 8. PW-1 is Sanjay Kumar who deposed that on 15.01.2013 at about 04:30 P.M., when he was returning from market and reached near St. Xavier School, he noticed crowd and found that one dumper had dashed a boy who had died on the spot and the dead body was lying there. Ambulance was called and the dead body was sent to hospital. The deceased was son of Ashok Kumar Agarwal. In cross- examination, he admitted that he had not seen the occurrence and one 2 Munna Singh had disclosed that the dumper had dashed the cyclist who died on the spot. 9. PW-2 is Ramesh Chandra Azad, Informant of the case. He deposed that on 15.01.2023 at about 04:40 P.M., when he was going to market on cycle and reached near St. Xavier School, he saw that Hywa truck No. JH02Q-5151 had dashed one cyclist namely, Chandan Kumar from backside who fell down and was run over by the Hywa. The dead body was removed to Sadar Hospital. The driver of the Hywa was apprehended by the public. He claimed to identify the petitioner in court. He exhibited his signature on the fard-beyan as Exhibit-1 and the signature of his wife as Exhibit-1/1. In his cross- examination, he stated that he had seen the accident from a distance of 10-15 feet and the area was crowded. He had stated everything to the police on the same day and there was crowd of 300-400 persons at the place of occurrence and the driver was caught by the public at a distance of 25-30 feet from the place of occurrence. PW-3 is Bishwanath Nishad who has been declared hostile by the prosecution. 10. PW-4 is Jagdish Rai, Investigating Officer of the case. He stated that he had taken re-statement of the Informant and had inspected the place of occurrence. He exhibited the formal F.I.R. as Exhibit-2 and the endorsement of Dinesh Kumar Singh, the officer-in- charge of Sadar P.S. as Exhibit-2/1. In his cross-examination, he denied the suggestion that the accident had taken place due to failure of break. 11. PW-5 is Dr. Vijay Shankar who had conducted the post mortem of the dead body of the deceased. He found the following injuries: External Injury: Head severely lacerated and flattened from left side, right eye ball protruding out of socket and brain material also lacerated and crushed. All antemortem in nature. On Dissection: Entire brain material severely lacerated beyond anatomical recognition, air passages filled with blood clots and all other viscera intact and pale. All chambers of heart empty. Stomach wall intact, mucosa normal looking and cavity contained about 30 ml of mucoid fluid. Time of death: Less than 8 hours. Cause of Death: Head injury 3 leading to Cardiorespiratory failure. He exhibited the post-mortem report as Exhibit-4. 12. After completion of the prosecution evidence, the statement of the petitioner was recorded under Section 313 of Cr. P.C. and the petitioner denied the incriminating evidences placed before him. However, the petitioner did not lead any defence evidence. 13. Upon going through the materials on record, this Court finds that PW-1, PW-2 and PW-3 have fully supported the occurrence and PW-5 has fully corroborated the prosecution case. The learned trial court found that PW-2 Informant and PW-1 have fairly corroborated the averments given in the fard-beyan i.e. first version of the Informant and it has come in their evidence of PW-2 that the driver of the vehicle hit the victim from back of the vehicle and mounted the wheels over the victim’s head. PW-2 claimed to identify the accused driver on seeing him and so the identity of the driver is also not under doubt. The defence side could not bring out any serious inconsistencies and contradictions in their statements. PW-4 who is the Investigating Officer of the case has given sufficient corroboration to the prosecution case by stating that the Informant and other witnesses have supported the occurrence. PW-5 the doctor has also given immense corroboration to the prosecution case. The accused in his statement under Section 313 of Cr.P.C. has not denied that he was not driving the said vehicle on 15.01.2013. The learned trial court further recorded that it is established beyond all reasonable doubt that the accused was driving the said Hywa Truck No. JH-02Q-5151 on 15.01.2013 at 04:00-04:30 in the evening at the place of occurrence highway/road which is a public way in a manner so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any other person. 14. This Court finds that the learned trial court has passed a well- reasoned judgment regarding the conviction of the petitioner after discussing the materials. The doctor was also examined and cross examined and it appears that deceased had expired primarily due to head injury. This Court finds that basic ingredients for the offences 4 under Sections 279 and 304A was duly satisfied and the learned trial court rightly convicted the petitioner for the aforesaid offences. The appellate court also considered the materials on record and upheld the order of conviction by a well-reasoned judgment. Considering the limited scope in revisional jurisdiction, this Court finds no illegality or perversity in the conviction of the petitioner under Sections 279 and 304A of the Indian Penal Code, which is hereby upheld. 15. So far as sentence is concerned, this Court finds that the learned trial court refused to give the benefit of Sections 3 or 4 of the Probation of Offenders Act and while considering the quantum of sentence, the learned trial court was of the view that for the offence of causing death by rash and negligent driving of vehicle, the prime consideration should be deterrence and considering the circumstances sentenced the petitioner in the aforesaid manner by order dated 26.06.2018. The appellate court upheld the judgment of conviction and sentence vide impugned order dated 21.01.2019. 16. This Court finds that the petitioner had surrendered before the learned court on 29.03.2019 and he was directed to be released on bail vide order dated 17.05.2019 and a few days must have been taken by the petitioner to furnish the bail bonds before his release by the learned trial court. 17. Considering the totality of the facts and circumstances, this Court is of the view that the petitioner having faced long drawn criminal case right from the year 2013 and much time had elapsed and the petitioner does not have any criminal antecedent, ends of justice would be served, if the sentence of the petitioner is modified to some extent and the fine amount is enhanced which could be remitted to the legal heirs of the victim of the case. Accordingly, sentence of the petitioner under Section 304A IPC is reduced to six months with fine amount of Rs.25,000/- to be deposited by the petitioner before the learned trial court within a period of two months from the date of communication of a copy of this order to the learned trial court. The sentence of the petitioner under Section 279 of IPC does not call for any interference. Both the sentences shall run concurrently. The period 5 of custody undergone by the petitioner shall be set off. The fine amount is directed to be remitted to the legal heirs of the victim. 18. If the fine amount is not deposited within the aforesaid time, the petitioner would serve the sentence as imposed by the learned trial court. 19. The bail bond furnished by the petitioner is cancelled. 20. This revision application is disposed of with aforesaid observation and direction. 21. Let this order be communicated to the court concerned through FAX/E-mail. Binit (Anubha Rawat Choudhary, J.) 6