Criminal Appeal No. 29 of 2017 · The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 1227 of 2017 Bablu Burnwal, S/o Late Baleshwar Modi, Resident of Village Chandwara, P.O., P.S. Chandwara, District Koderma … … Petitioner Versus 1. The State of Jharkhand 2. Haseena Khatoon, W/o Tulsi Mian, R/o Vill-Purhara, P.S. Barhi, Opp. Party Dist. Hazaribagh … … CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Petitioner For the Opp. Party --- : Mrs. Vani Kumari, Advocate : Ms. Nehala Sharmin, Spl. PP. 07/29.08.2024 Heard the learned counsel for the parties. 2. This criminal revision has been filed challenging the judgment dated 31.07.2017 passed in Criminal Appeal No. 29 of 2017 by the learned Principal District and Sessions Judge, Koderma, whereby the appeal has been dismissed. The petitioner has been convicted vide judgment of conviction and order of sentence dated 25.4.2017 passed in G.R. Case No. 373/2013/T.R. No. 262 of 2017 arising out of Jainagar P.S. Case No. 57/2013 dated 22.03.2013 for offence under Sections 279/337/338/304-A IPC passed by learned Judicial Magistrate, 1st Class, Koderma. 3. The petitioner has been awarded six months imprisonment for each offence under Section 279/337 IPC and has been awarded two years imprisonment for the offence under Sections 338/304-A of the Indian Penal Code and all the sentences have been directed to run concurrently. Argument of the petitioner. 4. The learned counsel for the petitioner while assailing the impugned judgment has submitted that though there are concurrent findings recorded by both the courts but the judgments are perverse. She
Legal Reasoning
submits that there is serious infirmity and contradiction in connection with identification of the offending vehicle. The informant of the case has stated that it was a navy blue colour Maruti and the other witness P.W. 3 Karu Yadav has stated that the vehicle was an unnumbered Bolero vehicle. Learned counsel submits that it was alleged that the vehicle was running speedily, and if that be so, the witnesses could not have identified the driver of the vehicle. Learned counsel has also submitted that there was contradictory evidence in connection with the manner of occurrence in as much as some of the witnesses have stated that the vehicle was being unloaded and other witnesses have not supported such statement. 5.
Legal Reasoning
Learned counsel while referring to the post mortem report of one of the victims has stated that she died in the hospital due to spleen rupture and therefore the cause of death was not the accident. With respect to the other victim, she had suffered fracture and certain other injuries and the nature of injury was caused by hard and blunt substance. The learned counsel submits that the petitioner is entitled for benefit of doubt considering the totality of facts and circumstances of this case. 6. Without prejudice to the aforesaid submission, the learned counsel has submitted that the incident of the year 2013 and more than 11 years have elapsed from the date of the occurrence. The records of the case indicate that the petitioner did not have any other case against him and the present offence is the first offence of the petitioner. She submits that under the sections in which the petitioner has been convicted, there is no minimum sentence prescribed and the maximum sentence prescribed is two years which has been awarded. Learned counsel has also submitted that in the year 2017, when his statement under Section 313 Cr. P.C. was recorded, the petitioner was 30 years of age and therefore on the date of occurrence, the petitioner must be of 26 years of age. She submits that considering the tender age of the petitioner and the facts and circumstances, the sentence be modified. Argument of the opposite party -State. 7. The learned counsel for the State has vehemently opposed the prayer and has submitted that there are concurrent findings recorded by both the courts and therefore there is no scope for interference in the revisional jurisdiction. She has submitted that there are two victims in the present case. One person died due to injury resulting in rupture of spleen. The learned counsel submits that even if there was no external injury but the doctor has explained that spleen could rupture without any 2 external injury whatsoever. The victim was taken to the hospital and he died in the hospital. So far as other victim is concerned, she suffered grievous hurt. Learned counsel has further submitted that record of the case indicates that the vehicle was released at the instance of the owner of the vehicle and the petitioner had run away from the place of occurrence after leaving the vehicle. The witnesses have also supported the description of the vehicle. She submits that the driver of the vehicle was well identified and was known to the P.W. 2 as well as P.W. 3 and P.W. 6. She has also submitted that there is nothing to indicate any reason for false implication. 8. So far as sentence is concerned, the learned counsel has opposed the prayer and has submitted that since there are two victims the sentence is adequate and does not call for any interference. Findings of this Court. 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 story, the informant on 22.03.2013 at around 4 P.M. along with her mother-in-law was going along the main road side after purchase from shop of one Basudeo Prasad situated near Telaiya Dam; suddenly a Maruti EECO van of blue colour driven rashly and negligently at high speed hit them. The mother-in-law sustained injury at the hip and the thigh while the informant received injury on the right hand. They fell down and started moaning and they saw the driver of the vehicle fleeing from the vehicle after stopping the vehicle at some distance. In the meanwhile, one Karu Yadav brought them to the hospital. In the hospital one of the victims died. After investigation the police submitted charge sheet under Sections 279,337,338,304-A of IPC against the petitioner Bablu Baranwal and cognizance was taken under Sections 279,337,338 and 304-A of the Indian Penal Code. 10. At the stage of prosecution evidence, nine witnesses were examined. P.W. 1 is hearsay witness. P.W. 2 is the informant of the case. P.W. 3 is Karu Yadav who brought the victims to the hospital. P.W. 4 and P.W. 5 were declared hostile. P.W. 6 is one eye witness; P.W. 7 is the I.O. of the case and P.W. 8 is one of the Doctors who examined the 3 inured victim and P.W. 9 is the doctor who conducted post mortem on the deceased victim. This court finds that the learned court has discussed each and every evidence including the cross examination of the witnesses. P.W. 2 who is the informant of the case and also the victim and has fully supported the prosecution case and during her cross examination she has stated that Maruti was unloading articles at the shop and they were sitting at a distance of ten steps. She had seen Bablu Kumar (petitioner) driving the vehicle. P.W. 3 has also fully supported the case and he had seen the moving vehicle driven by the petitioner. So far as P.W. 6 is concerned, he is another eye witness of the occurrence who was having his tea stall at a distance of 10 steps from the place of occurrence. He has stated that he knew the driver because the driver is resident of his maternal uncle’s (Mama) village. He had also seen the petitioner fleeing from the place of occurrence. 11. The prosecution witnesses including the eye witnesses and the victim of the accident who have fully supported the prosecution case and they identified the petitioner as the driver of the offending vehicle who fled away from the place of occurrence. There is nothing on record to suggest reason for any false implication of the petitioner in this case. 12. This court further finds that the learned trial court considered the materials on record and ultimately convicted the petitioner for the offence under Section 279,337,338 and 304-A of the Indian Penal Code. 13. The appellate court also considered the materials on record and gave concurrent findings and observed the factum of accident and injury sustained by the informant and the deceased at the relevant place of occurrence is proved beyond doubt. The identity of the driver was also established. There was also cogent evidence to establish the identity of the offending vehicle involved in the accident. The appellate court has refused to give the benefit of Probation of offenders Act by citing reasons. The learned appellate court has discussed the evidence of P.W—2 (injured witness), P.W-3 and P.W-6 who have narrated the entire incident and also identified the petitioner as the driver of the offending vehicle and has also discussed the evidence of the investigating officer of the case who had recorded the statement of the 4 owner of the offending vehicle and the owner of the vehicle disclosed that the petitioner is his brother. The learned appellate court also considered the evidence of the doctors which supported the prosecution case. 14. This court finds that the records of the case reveal that the offending vehicle was released in favour of the full brother of the petitioner. Once the petitioner was found to be the driver of the offending vehicle who ran away from the place of occurrence and has been identified by eye witnesses, the identity of the petitioner as the driver of the offending vehicle is fully established. As per the FIR, the offending vehicle was Maruti Eeco Van and the vehicle which was released was EECO Maruti Car. This court is of the considered view that merely because the P.W-3 had stated that the offending vehicle was Bolero, such contradiction is not material once the identity of the petitioner as the driver of the offending vehicle was duly proved. The argument of the petitioner that in a fast-moving vehicle, the driver could not be identified is devoid of any merit once the witnesses have known the driver and had identified him. 15. The learned courts have recorded concurrent findings about rash and negligent driving by the petitioner causing the accident. The doctor conducting the post mortem on the deceased victim has stated that the victim died due to spleen rupture which could have been caused due to the injury and there may not be any external injury in such cases. The evidence of the doctor P.W-8 who had examined the injured witness also supports the prosecution case. She suffered grievous injury caused by hard and blunt substance. 16. This court finds that both the court have given concurrent findings with regard to the offence committed by the petitioner and considering the limited jurisdiction in revision, this court finds no perversity or material irregularity in the two judgments passed by both the courts. Both the judgments are well reasoned judgments and supported by the materials on record. Therefore, there is no ground for interference so far as the conviction of the petitioner is concerned. 5 17. So far as quantum of sentence is concerned, admittedly the incident is of the year 2013 and the petitioner was around 24-25 years of age. While considering the punishment, the learned court has recorded the submission that it was the first offence of the petitioner. Considering the totality of the facts and circumstances and the fact that more than 11 years have elapsed from the date of occurrence and there is no minimum sentence as such prescribed under section 279,337,338 and 304A under which the petitioner has been convicted, this court is of the considered view that the sentence is required to be modified to meet the ends of justice. Accordingly, the sentence of the petitioner is hereby modified with respect to section 338 and 304-A of the IPC and reduced to one year subject to deposit of fine of Rs. 50,000/- in connection with the offence under Section 304-A of IPC. The fine amount is to be deposited by the petitioner within a period of four months from the date of communication of this judgment to the learned trial court. If the aforesaid fine amount is not deposited within the stipulated time, the petitioner would serve the sentence as awarded by the learned trial court. 18. The entire amount of fine of Rs. 50,000/- be remitted to the legal heirs/representative of the deceased to the extent of 40,000/-and to the injured victim to the extent of Rs. 10,000/- upon due identification. 19. This revision is disposed of in the aforesaid terms. 20. 21. Bail bond furnished by the petitioner is cancelled. 22. Let this order be communicated to the court concerned through Pending I.A., if any, is closed. FAX. Binit (Anubha Rawat Choudhary, J.) 6