Jharkhand High Court
Budhwa Oraon vs The State Of Jharkhand on 13 December, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 722 of 2003
Budhwa Oraon, son of Jaru Oraon, resident of village - Chetar,
P.O. & P.S. : Gumla, District - Gumla
... ... Petitioner
Versus
The State of Jharkhand ... ... Opposite Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Pratik Sen, Amicus Curiae
For the Opp. Party : Mr. Ashok Kumar, A.P.P
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06/13.12.2021 Heard Mr. Pratik Sen, learned Amicus Curiae appearing on
behalf of the petitioner.
2. Heard Mr. Ashok Kumar, learned A.P.P. appearing on behalf of
the opposite party - State.
3. The present criminal revision application is directed against the
judgement and order of conviction dated 26.03.2003 passed by the
learned Sessions Judge, Gumla in Criminal Appeal No.69 of 2000,
whereby, the appeal has been dismissed with certain modifications.
The learned Judicial Magistrate 1st Class, Gumla had convicted the
petitioner vide judgement and order dated 26.09.2000 passed in G.R.
Case No.176 of 1999 / T.R. No.477 of 2000 arising out of Gumla P.S.
case No.59 of 1999 for offence punishable under Sections 279, 337,
338 and 304A of Indian Penal Code.
The petitioner was sentenced to undergo rigorous imprisonment
for two months under Section 279 of Indian Penal Code; rigorous
imprisonment for two months under Section 337 of Indian Penal
Code; rigorous imprisonment for six months for offence under Section
338 of Indian Penal Code and rigorous imprisonment for one year for
offence under Section 304 A of Indian Penal Code and all the
sentences were directed to run concurrently.
The learned appellate court upheld the conviction of the
petitioner for offence under Sections 279, 337 and 304 A IPC. The
learned appellate court was of the view that as the injury report of the
informant was not proved, it could not be said that the informant
suffered grievous injury due to accident and therefore, acquitted the
petitioner for offence under Section 338 of Indian Penal Code. The
learned appellate court also upheld the sentence under Sections 279,
337 and 304 A of IPC.
4. Learned Amicus Curiae appearing on behalf of the petitioner
has submitted that the impugned judgements are perverse and cannot
be sustained in the eyes of law. He submits that no inquest report,
injury report, post-mortem report were exhibited before the learned
court below and even the offending vehicle, the truck, has not been
seized. The learned Amicus Curiae submits that considering these
aspects of the matter, prosecution has not been able to prove the case
beyond all reasonable doubt and these aspects of the matter have not
been considered by the learned courts below while convicting the
petitioner. He has relied upon a judgment passed by Hon'ble Supreme
Court in the case of Ravi Kapur VS. State of Rajasthan reported in
AIR 2012 SC 2986 and has in particular referred to para 12 and 13 of
the said judgement. He submits that the petitioner be extended the
benefit of doubt and the impugned judgments be set aside.
5. Learned counsel appearing on behalf of the opposite party -
State, on the other hand, has opposed the prayer and submitted that
there are concurrent findings recorded by the learned courts below
against the petitioner after appreciating the materials on record. He has
submitted that the conviction is based on the evidence of the eye
witnesses and he has particularly referred to evidence of P.Ws.1, 2, 3
and 5, who have fully supported the prosecution case and have
supported the case on the point of the manner, place and time of
occurrence and their evidences are corroborative to each other. He has
also submitted that even the vehicle number and truck details have
come on record, so, non-seizure of the vehicle and non-exhibiting the
inquest report or injury report etc. are not fatal to the prosecution case.
Learned counsel submits that it is not in dispute that one of the victims
had expired and the other victim, who was the informant of the case,
has fully supported the prosecution case. He also submits that the
learned appellate court had given the benefit of doubt in connection
with the offence under Section 338 of Indian Penal Code to the
petitioner as the injury report of the informant was not exhibited.
Learned counsel has referred to para 18 of the judgment relied upon
by the petitioner and submits that what is to be examined is whether
the nature of accident can be gathered from the attending
circumstances. He submits that in the present case there is consistent
evidence on record that the victims were hit from behind and
therefore, the negligence on the part of the truck driver cannot be ruled
out.
6. The prosecution case is based on the statement of the informant
(P.W.1), who gave his fardbeyan at Sadar Hospital, Gumla on
20.03.1999 at 20/30 hours. He stated that the informant along with his
cousin (Harakhman Sahu) were going to the house in cycle at 6.30
p.m. When they reached 100 meters ahead of Puja Petrol Pump, one
truck came from behind and dashed the informant and his brother.
After accident, the informant fell down on the earth and his cousin
brother came under the wheel of the truck. After standing when the
informant saw his cousin brother, he found him dead due to accident.
The number of the truck was BHV 0275.
7. On the basis of fardbeyan, Gumla P.S. Case No.59 of 1999 was
registered for offence under Sections 279/338/304A of Indian Penal
Code and upon investigation, charge sheet was submitted against the
petitioner allegedly being the driver of the offending vehicle.
Cognizance was taken and charges were also framed under Sections
279/337, 338/304A of Indian Penal Code. The charges were explained
to the petitioner and he pleaded not guilty and claimed to be tried.
8. Altogether five witnesses were examined from the side of the
prosecution. P.W.1 was the informant, P.W.4 was the Investigating
Officer of the case. P.W.1, P.W.2, P.W.3 and P.W.5 are the eye
witnesses to the occurrence and have fully supported the prosecution
case.
P.W.1 has stated that the occurrence took place at 6.30 p.m. on
20.03.1999 while he was going to his house after duty. When he
reached the Petrol pump of Sisai road, the truck dashed him from
behind, though he was on the left side of the road on cycle. The truck
dashed him upon coming speedily. After the accident, he became
senseless. He has stated that Harakman Sahu was on another cycle and
the truck also dashed him and he fell down and died. He has disclosed
the number of the truck as BHV 0275 and he claimed to identify the
driver. He has further stated that he was brought to the hospital where
he gave his statement. He identified the signature on the fardbeyan
which was marked as Ext.1 and has stated that it was the petitioner
who was driving the offending truck.
9. P.W.2 is the eye witness to the occurrence. He has fully
supported the prosecution case. He had seen the truck which was
being driven rashly and speedily and had hit the informant and the
deceased, and the deceased died on the spot. He has further stated that
the driver of the truck was the petitioner and claimed to identify him.
This witness has been duly cross-examined and during cross-
examination, he has stated that at the time of accident, he was at a
distance of 10 steps and after the occurrence, he saw towards the
backside and saw that the driver fled away after stopping the truck.
10. P.W.3 has also fully supported the prosecution case and has
stated that the petitioner was driver and he can identify him. P.W.5 has
also fully supported the prosecution case and he also claimed to
identify the driver and has also stated that the offending truck was
BHV 0275 which was lying near the place of occurrence.
11. P.W. 4 is the Investigating officer of the case. He had recorded
the statement of the informant in Gumla Sadar Hospital at 8.30 p.m.
and has also stated that Harakman Sahu had died due to accident and
that the dead body was lying in the hospital. He has stated that due to
night, he could not prepare the inquest report on that day and he took
the re-statement of the informant and registered the F.I.R against the
driver of the aforesaid truck. He had inspected the place of occurrence
and he found two canes of 10 litres with two cycles and found that the
aforesaid truck was lying in the field on the right side of the road. He
had prepared the inquest report of the deceased. He had taken the
statement of other witnesses also.
12. The learned trial court considered the fact that the injury reports
and post-mortem report were not exhibited by the prosecution due to
non-examination of the Doctor and that in spite of summons to the
Doctor, he did not turn up and the Doctor could not be examined by
the prosecution. The learned trial court was of the view that non-
examination of the Doctor does not wholly affect all the evidences of
prosecution witnesses regarding the alleged occurrence and
indulgence of the petitioner in the same and was of the view that
absence of medical evidence does not adversely affect the substance
deposed by the prosecution witnesses. The learned trial court recorded
that the prosecution has been able to prove the case against the
petitioner/the driver of the alleged truck number BHV 0275 and
sentenced accordingly.
13. So far as learned appellate court is concerned, the evidences on
record were scrutinized again and following findings were recorded at
para 12 and 13 of the appellate court order:-
"12. Considering the entire facts and circumstances of
the case, statement of the witnesses I find that Budhwa Oraon
was driving the truck No. BHV - 0275 rashly and negligently and
he caused the accident in which Harakhman Sahu died on spot
and informant also sustained injury. Therefore, he was admitted
into hospital where the fardbeyan was recorded. On perusal of
statement of witnesses I find that P.W.1, P.W.2, P.W.3 and P.W.5
are eye witnesses of the occurrence and they have supported the
case of prosecution and they have named the accused Budhwa
Oraon as driver of the truck No. BHV - 0275. Although the I.O.
has stated that he prepared the inquest report but inadvertently
the inquest report has not been marked exhibit. The I.O. has
clearly stated that he saw the dead-body in the hospital. I
therefore, find and hold that the impugned judgement of
conviction U/s 279, 337 and 304 (A) I.P.C. are only fit and
proper because the injury report of informant has not been
proved so it cannot be said that the grievous injury was sustained
by the informant in the accident. Therefore, conviction U/s 338
I.P.C. is set aside.
13. Point No. II - Since I have already held that
conviction U/s 338 I.P.C. is not proper and it has been set aside.
The sentence passed U/s 338 I.P.C. is also set aside. So far the
sentences passed under other Section of the I.P.C. are concerned
all the sentences are within the limit prescribed under that
Section and learned Magistrate has already ordered that all the
sentences shall run concurrently. I am therefore, of the opinion
that the order of sentence are not severe. With the above
modification in the judgement of conviction and order of
sentence this appeal is dismissed."
14. This Court finds that there are consistent evidences on record
with regard to the time, place and manner of occurrence and the
involvement of the petitioner in the offence being the truck driver of
the offending truck. The eye witnesses to the occurrence have
identified the petitioner and they fully supported the prosecution case.
The Investigating Officer of the case has also been examined, who had
visited the place of occurrence and also found that the truck was lying
abundant near the place of occurrence. It is not in dispute that one of
the persons had died on the spot due to the accident and this is
supported by eye witnesses to the occurrence and also by the evidence
of the Investigating Officer of the case and the informant. The
informant was accompanying the deceased and is also an eye witness
to the occurrence. These witnesses have been fully cross-examined
from the side of the defence. So far as the manner of occurrence is
concerned, it is clear that the victims were hit from behind and the
informant has stated that the informant and the deceased were moving
in their cycle on the left side of the road.
15. So far as the judgment passed in the case of Ravi Kumar Vs.
State of Rajastahan (supra) is concerned, the Hon'ble Supreme Court
was considering a judgement which was a judgment of reversal
against the judgement of acquittal. The Hon'ble Supreme Court
examined the point as to what is rash and negligent driving and
whether it can be gathered from the attending circumstances. It has
been held that the rash and negligent driving has to be examined in the
light of the facts and circumstances of a given case. It is a fact
incapable of being construed or seen in isolation and it must be
examined in the light of the attending circumstances. It has also been
held that a person who drives a vehicle on the road is liable to be held
responsible for the act as well as for the result and it may not be
always possible to determine with reference to the speed of a vehicle
whether a person was driving rashly and negligently as both these acts
presupposes an abnormal conduct. It has been held that even when one
is driving a vehicle at a slow speed, but recklessly and negligently, it
would amount to 'rash and negligent driving' within the meaning of
Section 279 IPC and that is why, the legislature in its wisdom has used
the word 'manner so rashly and negligently as to endanger human
life'.
16. The Hon'ble Supreme Court held that the preliminary
conditions are (a) it is the manner in which the vehicle is driven; (b) it
be driven either rashly or negligently; and (c) such rash or negligent
driving should be such as to endanger human life and once these
ingredients are satisfied, the penalty contemplated under Section 279
IPC is attracted. The Hon'ble Supreme Court also explained the
meaning of 'negligence' to mean omission to do something which a
reasonable and prudent person guided by the considerations which
ordinarily regulate human affairs would do or doing something which
a prudent and reasonable person guided by similar considerations
would not do. The Hon'ble Supreme Court considered another
parameter i.e., 'reasonable care' in determining the question of
negligence or contributory negligence. In para 12 of the aforesaid
judgement, it has been held that the doctrine of reasonable care
imposes an obligation or a duty upon a person (for example a driver)
to care for the pedestrian on the road and this duly attains a higher
degree when the pedestrian happens to be children of tender years. It
is axiomatic to say that while driving a vehicle on public way, there is
an implicit duty cast on the drivers to see that their driving does not
endanger the life of the right users of the road, may be either vehicular
users or pedestrian and they are expected to take sufficient care to
avoid danger to others.
17. The Hon'ble Supreme Court thereafter in para 13 explained the
principle of res ipsa loquitor and held that these doctrines are quite
applicable to the cases falling under criminal jurisprudence like the
road accidents. The Hon'ble Supreme Court held that the said
doctrines serve two purpose - one that the accident may by its nature
be more consistent with its being caused by negligence for which the
opposite party is responsible than by any causes and in such a case,
the mere fact of the accident is prima facie evidence of such
negligence. Secondly, in order to avoid hardship in cases where the
claimant is able to prove the accident, but cannot prove how the
accident had occurred and the courts have applied the principle of res
ipsa loquitor to cases where no direct evidences were brought on
record. The maxim suggests that on circumstances of a given case, the
res speaks and is eloquent because the facts stand unexplained, with
the result that the natural and reasonable inference from the facts,
shows that act is attributable to some person's negligent conduct. The
Hon'ble Supreme Court ultimately examined if negligence in case of
an accident could be gathered from the attendant circumstances and
held that circumstantial evidence may be adduced to prove negligence
and the circumstantial evidence consist of facts that necessarily point
to negligence as a logical conclusion rather than providing an outright
demonstration thereof. The elements of this doctrine have been stated
as under: a) The event would not have occurred but for someone's
negligence. b) The evidence on record rules out the possibility that
actions of the victim or some third party could be the reason behind
the event. c) Accused was negligent and owed a duty of care towards
the victim.
18. This Court is of the considered view that the aforesaid
judgment relied upon by the learned Amicus, does not help the
petitioner in any manner whatsoever in the facts and circumstances of
the present case. This Court finds that the offending truck driven by
the petitioner had hit the victims from the backside and no negligence
or contributory negligence has been attributed to the victims and one
of them was the informant of the case himself. The incident is
supported by eye witnesses to the occurrence, who have fully
supported the time, place and manner of the occurrence. This Court is
of the considered view that non-examination of the Doctor has been
rightly held to be not fatal to the prosecution case by the learned trial
court, particularly, when the incident itself is supported by the eye
witnesses and one of the victims had admittedly expired on the spot.
In view of the aforesaid facts and circumstances, this Court is of the
considered view that the learned courts below have given concurrent
findings in connection with conviction of the petitioner for offence
under Sections 279, 337 and 304 A of IPC. There is no illegality,
perversity or material irregularity in the impugned judgements of
conviction of the petitioner for offence under Sections 279, 337 and
304 A of IPC calling for interference in revisional jurisdiction by this
Court. There is no scope for re-appreciation of evidences on record
and coming to a different finding in revisional jurisdiction.
Accordingly, the present revision is hereby dismissed.
19. Bail bond furnished by the petitioner is hereby cancelled.
20. Pending interlocutory application, if any, is closed.
21. This Court appreciates the efforts of Mr. Pratik Sen, the learned
Amicus who has meticulously prepared and ably assisted the Court
while arguing this criminal revision on behalf of the petitioner.
22. The Secretary, Jharkhand High Court Legal Services
Committee shall reimburse the learned Amicus on submission of
bill(s). He shall be paid Rs.5500/- for each effective date of hearing,
but subject to the cap as provided under the Notification dated
23.11.2017.
23. Let the lower court records be sent back to the court concerned.
24. Let a copy of this order be communicated to the learned court
below through FAX/E-mail.
(Anubha Rawat Choudhary, J.)
Saurav
