Balram Mistri vs The State Of Jharkhand
2021 Latest Caselaw 2979 Jhar

                IN THE HIGH COURT OF JHARKHAND AT RANCHI

                              Cr. Revision No. 1050 of 2012

                     Balram Mistri, Son of Mahendra Mistri, resident of village-
                     Sinjo, P.O. & P.S. - Manika, District - Latehar
                                                            ...     ...  Petitioner
                                          Versus
                     The State of Jharkhand           ...       ...      Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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Through: Video Conferencing

04/18.08.2021

1. Heard Mr. Randhir Kumar, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Bishwambhar Shastri, learned counsel appearing on behalf of opposite party-State.

3. This criminal revision application is directed against the judgment dated 06.12.2008 passed in Cr. Appeal No. 24 of 2008 by the learned District & Sessions Judge, Latehar, whereby the appeal filed by the petitioner has been dismissed. The petitioner was convicted and sentenced vide judgment dated 01.07.2008 passed in G.R. Case No. 87/2003 by the learned Additional Chief Judicial Magistrate, Latehar for offence under Sections 279 and 337 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for six months with fine of Rs. 500/- each under the same sections and in default of payment of fine, he was further directed to undergo simple imprisonment for a period of 15 days each. The sentences were directed to run concurrently.

Arguments of the petitioner

4. Learned counsel for the petitioner, while advancing his argument, has submitted that the petitioner who was said to be the driver of the offending vehicle i.e., Commander Jeep was not apprehended on the spot. He also submitted that the

offending vehicle was also not seized and in such circumstances, the petitioner was entitled for benefit of doubt. He submits that this aspect of the matter has not been properly considered by the learned courts below and accordingly, the impugned judgments are perverse and are fit to be set-aside.

5. Without prejudice to the aforesaid submission, the learned counsel for the petitioner has also submitted that the petitioner does not have any criminal antecedent and the present incident is of the year 2003 and the petitioner has faced the rigors of criminal case for a long time, therefore, some sympathetic view may be taken.

6. The learned counsel further submits that the petitioner had surrendered before the court on 26.11.2012 and was directed to be released on bail by this Court vide order dated 10.01.2013 and accordingly, the petitioner has remained in custody for a period of one-and-a-half months. The learned counsel submits that considering the totality of the facts and circumstances of this case, the sentence of the petitioner be modified and be limited to the period already undergone by him in custody. The learned counsel has also submitted that in view of the modification of sentence, some amount of victim compensation may be directed to be paid to serve the ends of justice.

Arguments of the opposite party-State

7. Learned counsel appearing on behalf of opposite party- State, on the other hand, while opposing the prayer has submitted that there are concurrent findings recorded by the learned courts below and the injured witnesses have identified the petitioner as the driver of the offending vehicle. He submits that there is no scope of re-appreciation of evidences and coming to a different finding in revisional jurisdiction in absence of any perversity. He submits that no illegality or

perversity, as such, has been pointed out by the learned counsel for the petitioner.

8. The learned counsel for the State has also submitted that in the facts and circumstances of this case, the concurrent judgment of conviction may not be interfered with. So far as the sentence is concerned, he submits that appropriate order may be passed by this Court. He also submits that some victim compensation may also be awarded.

Findings of this Court

9. After hearing the learned counsel for the parties, this Court finds that as per the prosecution case, which was filed on the basis of the fardbeyan given by the informant (P.W.5), Latehar P.S. Case No. 26/2003 was registered. The informant had given his fardbeyan before the A.S.I. on 11.03.2003 at Sadar Hospital, Latehar to the effect that on the same date i.e., 11.03.2003 at about 11:30 a.m., he along with one Alam Ansari were going to Latehar Computer Centre on a motorcycle and when they reached near Rehra More, then a Commander Jeep bearing No. JH03A-2854 came from the opposite side being driven very rashly and negligently and dashed against the motorcycle, which resulted in accident and both the riders fell down and suffered severe injuries on their bodies. It was also alleged that the driver of the motorcycle Alam Ansari became senseless at the spot and the driver of the Commander Jeep along with the Khalashi fled away. With the help of the local people, both of them were brought to the Latehar Sadar Hospital, where they were initially treated, but Alam Ansari was referred to the RIMS, Ranchi for further treatment.

10. The investigation was conducted by the Investigating Officer, who took the statement of the witnesses, procured the injury reports of both the injured and MVI report and submitted charge-sheet against the petitioner. Thereafter,

cognizance was taken for offence under Sections 279, 337 and 338 of the Indian Penal Code. The substance of the accusation were explained and read over to the petitioner in Hindi, to which he pleaded not guilty and claimed to be tried. The defence version was in total denial of the occurrence and further defence was that at the time of occurrence, the petitioner was not driving the vehicle and he had been implicated in this case only on the basis of mistaken identification.

11. For proving the case, the prosecution has examined altogether seven witnesses including Alam Ansari (injured) as P.W.-2. The informant, who was also injured, was examined as P.W.-5. The doctor, who had examined the victims, was examined as P.W.-7. The Investigating Officers of the case were examined as P.W.-3 and P.W.6, who are the first and second I.O. respectively. The Motor Vehicle Inspector was examined as P.W.-4. Apart from that, one witness, namely, Jahur Miyan was also examined as P.W.-1.

The prosecution has also proved some documentary evidences. Ext.-1 is the Fardbeyan; Ext.-2 is the signature of officer -in- charge on the formal F.I.R.; Ext.-3 is the report of Motor Vehicle Inspector; Ext.-1/1 is the signature of the informant on the fardbeyan; Ext.-4 is the charge-sheet and Ext.-5 is the injury report of Alam Ansari (P.W.-2).

12. Out of the seven prosecution witnesses, P.W.-1 was declared hostile as he failed to support the prosecution case. So far as P.W.-5 (informant of the case) is concerned, he has fully supported the prosecution case. In his examination-in-chief, this witness has clearly stated that on 11.03.2003 at about 11:00 a.m., he along with one Alam Ansari were going to Polytechnic, Latehar on Motorcycle and when they reached near turning, one Commander Jeep bearing registration No. JH03A-2854 came from the opposite side and dashed the motorcycle. He has

stated that due to the accident, he got injury on left leg and became senseless and regained his sense at Latehar Hospital. This witness has been fully cross-examined from the side of the defence.

13. P.W.-2 is another injured witness, who was driving the motorcycle along with the informant- P.W.-5. He has also fully supported the prosecution case. He has stated that the driver of the Commander Jeep was driving the vehicle very rashly and negligently, due to which, the accident had occurred and P.W.-2 as well as P.W.-5 got multiple injuries. He has also stated that the informant P.W.-5 became senseless and he got injury on his vertibra. He has also stated that after the accident, both the driver and Khalashi fled away leaving the vehicle at the spot. This witness has identified the driver of the Commander Jeep and disclosed his name as Balram Mistri (the petitioner). This witness has also been fully cross-examined from the side of the defence. In his cross-examination, he has also supported the prosecution case indicating that he was driving motorcycle on the left side of the road and the Commander Jeep was coming very rashly and negligently and dashed against the said motorcycle.

14. P.W.-6 is the second investigating officer, who had taken the investigation from the first I.O. and has submitted that charge-sheet.

15. P.W.-4 is the Motor Vehicle Inspector, who has examined the Commander Jeep and has not found any mechanical failure in the vehicle and he has exhibited the M.V.I. report as Ext.-3.

16. P.W.-7 is the Doctor, who had examined the injured and found following injuries on the person of Alam Ansari (P.W.-

2):-

(i) Abrasion 1.1/2 X on the Dorsom of left foot

(ii) Abrasion 1" X 1" Dorsom of left foot

(iii) Swelling 6" X 4.1/2" on the middle of Back at T12, L1 Level

(iv) Bleeding from Nose.

However, this witness has opined that all the injuries were simple in nature. The injury report has been marked as Ext.-5. In his cross-examination, he has stated that this type of injury could be possible due to collusion with stone from back. So far as injury report of P.W.-5 is concerned, the same has not been exhibited.

17. So far as P.W.-3 is concerned, he was the first Investigating Officer. This witness has also fully supported the prosecution case.

18. After considering the evidences on record and arguments of the parties, the learned trial court found that although the informant has been examined as P.W.-5, but his injury report has not been examined exhibited and no grievous injury was found on the body of Alam Ansari and acquitted the petitioner for offence under Section 338 of IPC. So far as offence under Sections 279 and 337 of IPC is concerned, the learned trial court convicted the petitioner under the said sections vide paragraph- 16 of its judgment, which is quoted as under: -

"So far, Section 279, 337 I.P.C. is concerned, P.W.2 Md. Alam Ansari and P.W. 5 Md. Sams Raza clearly stated that the driver of the Commander Jeep was driving the vehicle very rashly and negligently due to which this accident took place in which both were injured. During the investigating, I.O. visited the place of occurrence on the same day and found Commander Jeep No. JH03A/2854 standing at the place of occurrence and damaged motorcycle was also found lying there. Doctor has also found four injuries on the person of Alam Ansari and clearly stated in chief that this type of injury can be possible only by hard and blunt substance and may be due to road traffic accident. I find there is no material contradiction in the evidence of P.W.2, P.W. 3, P.W. 5 and P.W.7. In this case, Motor Vehicle Inspector has also been examined as witness No. 4 and he clearly stated that he has not detected any mechanical problem with the Commander Jeep.

Hence, in view of the above discussion, it is very much clear that this accident took place due to rash and negligent driving of driver of Commander Jeep No. JH03A/2854 and the driver was Balram Mistri.

In view of the discussion made above it is very clear that the prosecution has proved the charges u/s 279/337 I.P.C. against the accused Balram Mistri so he is hold guilty for the offence committed u/s 279/337 I.P.C. The bail-bond of Balram Mistri is hereby cancelled and he has taken into judicial custody."

19. The learned trial court while sentencing the petitioner recorded the submission of the petitioner that the offence was his first offence and there is no criminal antecedent of the petitioner, but the learned trial court refused to grant benefit to the petitioner under the provisions of Probation of Offenders Act and sentence him accordingly.

20. So far as learned appellate court is concerned, it also scrutinized the evidences on record and upheld the conviction of the petitioner and refused to interfere with the sentence.

21. This Court finds that there are concurrent findings recorded by the learned courts below after scrutinizing the materials available on record that on the fateful day, the petitioner was driving the Commander Jeep rashly and negligently at a high speed even on turning and did not apply the break at the time of the accident, although the break of the vehicle was found in working condition. The learned appellate court also recorded that P.W.-2 who is an injured witness, had identified the petitioner as the person who was driving the Commander Jeep.

22. Considering the totality of facts and circumstances as it apparent from the impugned judgments, this Court finds that the learned courts below rightly convicted the petitioner for offence under Sections 279 and 337 of Indian Penal Code, as the basic ingredients for conviction under the said sections were duly proved by the prosecution beyond all reasonable doubts.

This Court is also of the considered view that the learned trial court rightly acquitted the petitioner for offence under Section 338 of Indian Penal Code by a well-reasoned finding. There being no illegality or perversity in the impugned judgments of conviction of the petitioner under Sections 279 and 337 of Indian Penal Code, no interference is called for in revisional jurisdiction by this Court.

23. So far as the point of sentence is concerned, this Court finds that the offence in the present case is of the year 2003 and as it is apparent from the impugned judgment passed by the learned trial court, it was also submitted that the present offence is the first offence of the petitioner. This Court also finds that the petitioner has already remained in custody from 26.11.2012 to 10.01.2013 i.e., about one-and-a-half months during the pendency of the present revision petition and the petitioner has faced the rigors of criminal case right from the year 2003 and about 18 years have elapsed from the date of incident. This Court also finds that there is no minimum sentence, as such, prescribed under Sections 279 and 337 of Indian Penal Code. Considering the totality of the facts and circumstances of this case, this Court finds that ends of justice would be met, if the sentence of the petitioner is modified to the period already undergone by him in custody. Accordingly, the sentence of the petitioner is hereby modified for all the offences and limited to the period already undergone by him in custody in connection with the present case with a fine of Rs. 500/- for offence under Section 337 of IPC and Rs. 1,000/- for offence under Section 279 of IPC. Further, the petitioner would also pay victim compensation of Rs. 10,000/-; out of which, Rs. 5,000/- is directed to be remitted to P.W.-5 and P.W.-2 each upon due identification. The fine amount as well as the amount of victim compensation is directed to be deposited before the learned

court below within a period of three months from the date of communication of this order.

24. In case of non-deposit of fine amount, the learned court below shall cancel the bail bond furnished by the petitioner and the petitioner shall serve the sentence already awarded by the learned court below. If the fine amount is deposited in the aforesaid time frame, the bailors will be discharged from their liabilities under the bail-bond.

25. Accordingly, the present revision petition is disposed of with the aforesaid modification of sentence.

26. Pending interlocutory applications, if any, are closed.

27. Let the lower court records be immediately sent back to the court concerned.

28. Let a copy of this order be communicated to the learned court below through 'E-mail/FAX'.

(Anubha Rawat Choudhary, J.) Mukul/Pankaj