Banta Singh vs State Of U.P.
2017 Latest Caselaw 7587 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

				                                                     AFR         
 
  Judgment reserved on 28.11.2017
 
Judgment delivered on  4.12.2017
 

 
Court No. 61
 

 
Case :- CRIMINAL APPEAL No. - 3749 of 2010
 
Appellant :- Banta Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Tariq Maqbool Khan,Abhishek Mishra,Noor Mohammad,Santosh Kumar Giri,Saurabh Pathak
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Umesh Chandra Tripathi,J.

1. Heard Sri Noor Mohammad, learned counsel for the appellant and Sri L.D. Rajbhar, learned A.G.A., for the State.

2. This appeal is directed against the judgment and order dated 26.5.2010 passed by learned Addl. Sessions Judge/Fast Track Court No. 2, Kushinagar at Padrauna in S.T. No. 97 of 2006 (State Vs. Banta Singh) whereby accused/appellant Banta Singh was convicted for the offences punishable under Sections 304 Part II, Indian Penal Code (hereinafter referred to as 'IPC') and was sentenced to rigorous imprisonment for a period of 10 years and to pay fine of Rs. 15,000/- and in default of payment of fine a simple imprisonment for another six months.

3. Brief facts of the prosecution case are that on 4.8.2005 at about 9:15 PM, Incharge ARTO Kushinagar Sanjay Kumar Jha alongwith other Enforcement Staff was checking over load and unauthorized vehicle plying on the road near Fazil Nagar on the direction of Transport Commissioner. The driver of Truck No. PB 13 L 9513 was driving the vehicle very rashly from Tamkuhiraj to Kasia. Member of the Enforcement Staff tried to stop the Truck driver by making signal but Truck driver did not stop the Truck and attempted to damage the vehicle of Enforcement Staff. Driver of checking party chase the Truck upto 3 KM then Truck driver stopped the Truck. Constable Enforcement Staff Kabir Ahmed went near the Truck and demanded necessary papers from the Truck driver relating to vehicle for verification. As soon as, Constable Kabir Ahmad reached near the Truck, Truck driver had crushed the Constable Kabir Ahmad by running the Truck on him, due to which Constable Kabir Ahmad died on the spot. Incharge ARTO Sanjay Kumar Jha informed the District Magistrate, Kushinagar and Regional Transport Officer, Gorakhpur about the occurrence. He also chased the Truck. At about 5 KM distance from the spot, Truck driver stopped the Truck in the mid of the road and fled away due to dark night. They could not apprehend the Truck driver.

4. On written information of Incharge ARTO Sanjay Kumar Jha, a first information report at crime no. 268 of 2005 has been lodged on 4.8.2005 at 11:20 PM against Truck driver of Truck No. PB 13 L 9513 at Police Station Turkpatti, District Kushinagar. On 5.8.2005 at about 7:00 AM inquest report of dead body of Constable Kabir Ahmad was prepared by police. On the same day at 10:30 AM post mortem of dead body of Constable Kabir Ahmad was conducted by Dr. Sanjay Patel who prepared post mortem report Ex. Ka-3 and after investigation, police has submitted charge-sheet against appellant Banta Singh under Section 304 IPC. As per post mortem report Ex. Ka-3 and statement of Dr. Sanjay Patel, there are 6 ante-mortem injuries on the person of deceased Kabir Ahmad and he died due to ante-mortem injuries. His death may have been caused by crushing from the Truck on 4.8.2005 at about 9:15 PM.

5. Learned Trial Court has framed charges under Section 304 IPC against appellant Banta Singh and explained charges to him. He pleaded not guilty and claimed to be tried.

6. To substantiate charge against accused appellant, prosecution has examined PW-1 Incharge ARTO Sanjay Kumar Jha, PW-3 Driver of Enforcement Staff Vijay Pratap Singh as witnesses of fact, PW-2 Srikant Pandey, PW-4 Constable Shivnath Prasad, PW-5 Girja Shanker Tiwari, PW-6 Raghav Tiwari, PW-7 Dr. Sanjay Patel, PW-8 Sub Inspector Sunil Kumar Rai (second Investigating Officer), PW-9 Sub Inspector Ashok Kumar Yadav (first Investigating Officer) as formal witnesses.

7. After closure of prosecution evidence, statement under Section 313 Code of Criminal Procedure of the accused/appellant Banta Singh was recorded wherein he pleaded his innocence and stated that witnesses have deposed falsely against him.

8. Defence did not lead any evidence whatsoever.

9. Upon detailed consideration of evidence on record, learned Trial Court found the guilt of the accused/appellant Banta Singh under Section 304 Part II IPC which was proved beyond reasonable doubt.

10. Learned counsel for the appellant in his argument did not challenge the order of conviction but requested that the sentence of the appellant should be reduced to the period already undergone as he has completed about 8 years of his sentence.

11. Learned A.G.A., has contended that there is no any illegality or infirmity in the order passed by the learned Trial Court and as such the appeal is liable to be dismissed.

12. Witnesses of fact PW-1 Incharge ARTO Sanjay Kumar Jha and PW-3 (Driver of Enforcement Staff) Vijay Pratap Singh have specifically stated that on 4.8.2005 at about 9:15 PM Driver of Truck No. PB 13 L 9513 had crushed the constable Kabir Ahmad, due to which he died on the spot. Constable Kabir Ahmad died due to crushing of Truck is not denied by the appellant.

13. PW-9 Sub Inspector Ashok Kumar Yadav (first investigating officer) recorded statement of witnesses of facts, ARTO Sanjay Kumar Jha, Vijay Pratap Singh and other witnesses of facts and also inspected the spot and on 6.9.2005 came to the conclusion that offence under Section 304-A IPC is made out. On 6.9.2005 by order of the Superintendent of Police, investigation was transferred to PW-8 Sub Inspector Sunil Kumar Rai (second Investigating Officer). He only arrested the accused/appellant Banta Singh and filed charge-sheet against him under Section 304 IPC.

14. PW-1 ARTO Sanjay Kumar Jha stated before the court that driver of vehicle, in which he and other Enforcement Staff were sitting, over took the Truck and stopped it. Constable Kabir Ahmad went near the Truck for verification of papers relating to Truck. At that time, driver of the Truck had overridden the Truck on Constable Kabir Ahmad to kill him. He also admitted this fact that no other Constable of Enforcement Staff went near the Truck. From this fact and circumstance, it is more probable that driver of the Truck may have driven the Truck to run away and escape himself from the clutches of Enforcement Staff and accidentally crushed Constable Kabir Ahmad as inference drawn by first Investigating Officer SI Ashok Kumar Yadav after investigation. In this reference statement of PW-1 ARTO Sanjay Kumar Jha and PW-3 Vijay Pratap Singh is contradictory to each other.

15. PW-3 Vijay Pratap Singh stated before court that when they were apprehending the Truck, Truck was at a distance of 2 to 4 Laggi (scale of distance). This means that he had not over taken the Truck.

16. Both the witnesses of fact Sanjay Kumar Jha and Vijay Pratap Singh admitted this fact that at the time of occurrence, there was dark night. In such situation, it was not possible for them to identify the Truck number of the Truck that crushed the Constable Kabir Ahmad. Both the witnesses of fact examined before the court, also admitted that after crushing the Constable, Truck Driver ran away from spot by driving the Truck, and at the distance of 5 KM from the spot, he stopped the Truck in mid way of the road and fled away. They could not know the direction in which Truck driver fled away because, it was a dark night. PW-1 Sanjay Kumar Jha in his cross examination stated that he identify the registration number of the Truck in the light of torch. He has not stated this fact in his examination-in-chief. It was also least possible to identify the number of running Truck in the light of torch. There was no occasion for Sanjay Kumar Jha or any other member of Enforcement Staff to identify the registration number of Truck in stationary position. They may have attempted to identify the registration number of the Truck only when Truck started to running.

17. From facts and circumstances, this probability cannot be ruled out that in suspicion Truck No. PB 13 L 9513 may have been involved in the occurrence.

18. PW-8 Sub Inspector Sunil Kumar Rai stated before the Court that owner of Truck had applied for release of vehicle and driver had applied for surrender with affidavit before court. After that he arrested the driver of the Truck appellant Banta Singh as he was driver of Truck. This means that appellant Banta Singh have been made accused in this case only on the basis of his surrender application filed before the court.

19. PW-1 Sanjay Kumar Jha admitted in his cross examination that he alighted from his vehicle and from there Truck was at the distance of 7 to 8 feet. Only Constable Kabir Ahmad went near to Truck for demanding papers for verification. PW-3 Vijay Pratap Singh stated that as soon as Constable Kabir Ahmad reached near the Truck, the driver of the Truck crushed him and ran away. From this statement of Sri Vijay Pratap Singh, it is apparently clear that he has not alighted from the vehicle. In such situation, it was not possible for both the witnesses of fact i.e. ARTO Sanjay Kumar Jha and PW-3 Vijay Pratap Singh to identify the driver of the Truck. From the place of occurrence, they started apprehending the Truck. Truck driver stopped the Truck at the distance of 5 KM away from the place of occurrence and ran away. Sri Sanjay Kumar Jha and Vijay Pratap Singh admitted in their cross-examination that they could not see in which direction the Truck driver ran away due to darkness of night. Therefore, at that time also, it was not possible for them to identify the Truck driver.

20. Here, it must be noted that even before the court, these two witnesses of fact Sanjay Kumar Jha and Vijay Pratap Singh had not stated that the appellant Banta Singh present in the court was driving the Truck which crushed the Constable Kabir Ahmad. These two witnesses may identify the accused-appellant Banta Singh before the Court that he was driving the Truck at the time of occurrence. There is no any evidence on record to show that at the time of occurrence, appellant Banta Singh was driving the Truck. Only because owner of Truck applied for release of Truck and driver Banta Singh surrender before the court showing himself as driver of Truck, it cannot be inferred that appellant Banta Singh was driving the Truck at the time of occurrence.

21. Learned Sessions Judge has convicted the appellant only on the basis of the fact that Truck has crushed the Constable Kabir Ahmad due to which Constable sustained injuries and died. Although, there was no evidence on record to show that appellant Banta Singh was driving the Truck at the time of occurrence. Learned Trial Court has not considered as to whether any evidence against the appellant Banta Singh is available or not.

22. In the aforesaid facts and circumstances of the case, conviction of the appellant Banta Singh under Section 304 Part II IPC is not sustainable.

23. The appeal is accordingly allowed. Conviction of appellant Banta Singh under Section 304 Part II of IPC is set aside and he is acquitted. He is in jail. He be released forthwith, if not wanted in any other case.

24. Office is directed to send a certified copy of this order to Sessions Judge, Kushinagar for its compliance. Office is further directed to send back the lower court record.

Order Date :- 4.12.2017

Jaswant