Sarfuddin Khan Son Of Late Jakir ... vs The State Of Jharkhand
2021 Latest Caselaw 3767 Jhar

               IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            Cr. Rev. No. 813 of 2012
          Sarfuddin Khan son of Late Jakir Hussain Khan, resident of
          Village- Bishanpur, Pathantoli, P.O. and Police Station-
          Singhwali, District- Gopalganj (Bihar) ... ... Petitioner

                                    -Versus-
          The State of Jharkhand                ...        ... Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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                For the Petitioner     : Mr. Ranish Kumar, Adv.
                For the State          : Mr. Shekhar Sinha, A.P.P
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                         Through Video Conferencing

12/C.A.V. on 31.08.2021                        Pronounced on 04.10.2021

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

2. Heard Mr. Shekhar Sinha, the learned A.P.P. appearing on behalf of the State.

3. This criminal revision application is directed against the Judgment dated 14.06.2012 passed by the learned Sessions Judge, Dhanbad in Criminal Appeal No. 164 of 2012, whereby and whereunder the learned appellate court affirmed the Judgment of conviction and the order of sentence dated 21.04.2012 passed by the learned Judicial Magistrate, 1 st Class, Dhanbad in G.R. No. 3567 of 2004 / T.R. No. 836 of 2012 (arising out of Katras (Rajganj) P.S. Case No. 392/2004) and dismissed the criminal appeal preferred by the petitioner.

4. The learned trial court had convicted the petitioner under Section 304(A) of the Indian Penal Code and had sentenced him to undergo Rigorous Imprisonment for one year and fine of Rs.4,000/- and in default of payment of fine, he was directed to further undergo Simple Imprisonment for one month.

However, the learned trial court acquitted the petitioner from the charge under Section 279 of the Indian Penal Code.

Arguments on behalf of the petitioner

5. The learned counsel for the petitioner, while advancing his arguments, submitted that both the impugned judgments passed by the learned courts below are perverse and cannot be sustained in the eyes of law. He submitted that the petitioner was charged for offences under Sections 279 and 304(A) of the Indian Penal Code, but he was acquitted by the learned court below for offence under Section 279 of IPC as the same was not proved. The reason for acquittal was that none of the witnesses had stated as to what was the speed of the tanker and there was no technical report by the Motor Vehicle Inspector, the competent authority. The learned counsel submitted that there is no evidence to show that there was rash or negligent driving by the petitioner. Learned counsel also submitted that there is serious dispute as to whether the petitioner was the driver of the offending vehicle or not, as the petitioner was never apprehended on the spot and was subsequently apprehended by the police. He submitted that the basic ingredient of rash or negligent driving for the offence under Section 304(A) of IPC is not satisfied in the present case and accordingly, the conviction of the petitioner under Section 304(A) of IPC cannot be sustained in the eyes of law.

6. The learned counsel for the petitioner relied upon the judgments passed by the Hon'ble Supreme Court in the cases of State of Karnataka -vs- Satish (1998) 8 SCC 493 and Mahadeo Hari Likre -vs- State of Maharashtra AIR 1972 SC 221. He also relied upon the judgment passed by this Court in Cr. Appeal No. 795/2014 decided on 24.08.2020 in the case of Sheikh Imran vs. State of Jharkhand.

7. Without prejudice to the aforesaid submissions, the learned counsel further submitted that the present offence is the first offence of the petitioner and he has remained in custody from 04.01.2013 to 16.01.2013 during the pendency of the present criminal revision application. He also submitted that on the date of conviction i.e., 21.04.2012, the petitioner was aged about 59 years and accordingly, the present age of the petitioner is about 68 years. He further submitted that the date of incident is 07.11.2004 and accordingly, more than 16 years have elapsed from the date of the incident. He submitted that considering the aforesaid aspects of the matter, some sympathetic view may be taken and the sentence may be modified and reduced.

Arguments on behalf of the Opposite Party-State

8. Learned counsel for the State, while opposing the prayer, submitted that there are concurrent findings recorded by the learned courts below, which do not call for any interference in revisional jurisdiction by this Court. It is not in dispute that the learned trial court has acquitted the petitioner for offence under Section 279 of IPC and has convicted him for offence under Section 304(A) of IPC. He also referred to Paragraph-16 of the trial court's judgment, wherein the learned trial court held the petitioner guilty for offence under Section 304(A) of IPC causing the accident and death of the deceased for driving the motor vehicle negligently and acquitted the petitioner for the offence under Section 279 of the IPC, as there was no evidence on record for proving the speed of the said vehicle.

Findings of this Court

9. The prosecution case is based on the fardbeyan of the informant namely, Chowkidar Allauddin Ansari recorded on 07.11.2004 is that a person namely, Ganesh Thakur was going

on bicycle through G.T. Road near Nakti Bridge and was dashed by a tanker bearing registration No. WB 15-A-0702. It was alleged that the driver of the said tanker was driving it rashly and negligently and dashed Ganesh Thakur on 07.11.2004 at 9:30 a.m. causing his death at the spot. The driver of the tanker parked the vehicle at some distance and fled away, as some villagers were assembled there. On the date of occurrence, the informant was posted at Rajganj Police Station who saw the said occurrence by his own eyes and gave his fardbeyan at 11:15 a.m. on the same day at G.T. Road before the Sub-Inspector, B. Bakhala under his thumb impression and on the basis of his fardbeyan, the present case was registered.

10. Upon investigation, investigating officer of the case found the petitioner as driver of the said tanker and submitted charge- sheet against him under Sections 279 and 304(A) of the Indian Penal Code and accordingly, cognizance of the offence was taken on 23.04.2005 under the same sections. Thereafter, the substance of accusation for the offences under Sections 279 and 304(A) of the Indian Penal Code was read over and explained to the petitioner to which he pleaded not guilty and claimed to be innocent.

11. In course of trial, the prosecution examined altogether eight witnesses to prove its case. Out of them, P.W.-8 Md. Allauddin Ansari, P.W.-6 Dinesh Thakur, brother of the deceased, P.W.-5 Mantu Thakur, P.W.-4 Dhaneshwar Chourasia and P.W.-7 Dr. Shailendra Kumar are the material witnesses of the case. P.W.-1 and P.W.-2 did not support the prosecution case and were declared hostile by the prosecution. The prosecution exhibited the carbon copy of the inquest report as Exhibit-1 and the post-mortem report as Exhibit-2.

12. P.W.-8 is the Chowkidar who claimed to be an eye- witness to the occurrence. He deposed that he is a Chowkidar

2/2 at Rajganj Police Station and he saw Ganesh Thakur (deceased) while going on bicycle dashed by a tanker resulting into his death at the spot and he brought him to the hospital. He stated that he did not know about the driver of the said tanker. He was fully cross-examined. In his cross-examination, he stated that his house is situated just near the police station, 1/2 Km away from the place of occurrence.

13. P.W.-6 is the brother of the deceased. He deposed that on 07.11.2004 at 9:30 a.m., he came to know that a truck has dashed his brother, in which, he has died. When he went at the spot, he found tanker No. WB 15-A-0702 standing there and the public were assembled. The dead body of his brother was lying on the road. He came to know that the driver of the tanker caused accident resulting into the death of his brother. He also deposed that the driver of the tanker was Sarfuddin Khan and when he went to the police station, he found that officer-in-charge of Rajganj Police Station had arrested the driver. In his cross- examination, he stated that the place of occurrence is 3 Km away from his house and he was informed about the occurrence at 9:45 a.m. and he had gone there by scooter.

14. P.W.-5 deposed that on 07.11.2004 at 1:30 p.m., he found that the accident had occurred near Nakti Bridge. He disclosed the Vehicle No. as WB 15-A-0702 and stated that the tanker was being driven by Sarfuddin. He identified the dead body and put his signature on the inquest report which was marked as Exhibit-1. In his cross-examination, he stated that his house was 4 ½ Km away from the place of occurrence.

15. P.W.-4 deposed that the accident had taken place by 10- wheeler tanker resulting to death of Ganesh Thakur in between Rajganj and Galudih. However, he did not see the driver of the said tanker. In his cross-examination, he stated that his house was 10 Km away from the place of occurrence.

16. P.W.-7 is the Doctor who conducted the post-mortem over the dead body of the deceased-Ganesh Thakur on 07.11.2004 at 2:15 P.M.. He deposed that the dead body was identified by Dinesh Thakur (brother of the deceased) and Constable-Anjani Kumar of Rajganj Police Station. He found several external anti-mortem injuries on the body of the deceased. He stated the cause of death was due to injuries caused by motor vehicular accident. He identified post mortem report as Exhibit-2. In his cross-examination, he deposed that such type of injuries cannot be caused due to fall from the motorcycle in motion.

17. On 19.04.2012, the statements of petitioner were recorded under Section 313 of Cr.P.C., wherein he denied the incriminating substances put to him and claimed to be innocent. The petitioner did not adduce any oral or documentary evidence in his defence.

18. The learned trial court held that it was proved from the materials on record that the petitioner was driving the offending vehicle- tanker no. WB-15-A-0702 by which the accident was caused resulting the death of the victim- Ganesh Thakur and convicted the petitioner under section 304A of IPC by holding that death of the victim had occurred by negligent driving of the petitioner but held that case under section 279 IPC was not proved as none of the witnesses have stated that what is speed of the tanker and there is no technical test report by the MVI.

19. The learned appellate court also scrutinized the evidences on record and recorded its findings at Paragraph No. 15, which read as under:

"15. In this case, on careful scrutiny of evidence available on record, it has come that accident took place on 17/11/2004 near Naktipur on G.T. Road with the tanker No. WB-15-A-

0702 and in the said accident, Ganesh Thakur died at the spot. Though none of the witnesses have stated about speed of the tanker, but all the witnesses have deposed that tanker dashed behind the cyclist resulting to death of Ganesh Thakur. To struck from behind by heavy vehicle against the cyclist itself amount that driver of the heavy vehicle was careless and was not driving the vehicle in the desired speed and also did not take care in driving the heavy vehicle. Fast speed of the vehicle on a public place without taking care of pedestrian, cyclists or other persons, who were moving on the road, and to struck them from behind is itself suggestive that driver of the heavy vehicle was negligent in his duty. Therefore, it has established that accident took place due to rash and negligent driving of the aforesaid tanker at the place of occurrence."

20. Thus, both the learned courts below have given concurrent findings regarding negligent driving of the tanker by the petitioner which caused death of the victim after considering the materials on records.

21. With regard to the identification of the driver of the vehicle at the relevant time of accident, the learned appellate court recorded that it was not disputed that after the accident, the driver of the vehicle fled away from the spot. Though, P.W.- 5 Mantu Thakur claimed that he had seen the driver, but he gave different time of accident in his deposition. The learned appellate court further recorded that investigating officer of the case has not been examined and therefore, it seems necessary to see the case diary for aid of the evidence available on record. The learned appellate court further recorded its findings at Para-18, which read as under:

"18. In this case, perusal of case diary, it transpires that on 7/11/2004, police reached at the place of occurrence at 11:15

hours, inspected place of occurrence and recorded statement of witnesses. Time in case diary for inspection of place of occurrence and recording statement of witnesses is mentioned at 13 hours. Mantu Thakur, in his statement gave time of accident as 9.30 a.m., therefore, with regard to time mentioned in his deposition, seems slip of pen. Other facts have been corroborated by the witness Mantu Thakur in toto and even in cross examination, he reiterated the fact that he had seen the occurrence. At that time, he was about 100 meters behind his cycle from the place of occurrence and he remained at the spot, police reached after 1 ½ hours. Moreover, identity of the accused has not been disputed by the defence on 12/11/2009 on the date of examination of P.W. 5 Mantu Thakur, accused was represented through his counsel, therefore, his identity was waived by the defence. Therefore, there is no contradiction with regard to identity of the accused for driving the tanker at the relevant time of accident."

22. On the basis of the aforesaid findings, the learned appellate court did not find any justification to interfere with the conviction and sentence of the petitioner.

23. This Court finds that the Informant, P.W.-8 is an eye witness to the occurrence and he has fully supported the prosecution case including the fact that when the deceased was going on a bicycle, the Tanker No. WB 15-A-0702, being driven by the petitioner, dashed the deceased from behind and he died on the spot. The petitioner fled away from the place of occurrence, but he was subsequently apprehended by the police. This Court further finds that P.W.-5, P.W.-6 and P.W.-7 Doctor have corroborated the evidence of the informant.

24. This Court further finds that P.Ws.-5, 6 and 7 have established the date, time, place and the manner of occurrence

and P.W.-8 has established the fact of death of the deceased and the identity of the petitioner as the driver of the tanker has been established by P.W.-5 who was an eye witness to the occurrence and had taken the deceased to hospital alongwith the Chowkidar-informant of the case and therefore, no prejudice has been caused to the petitioner due to non-examination of the investigating officer of the case. Accordingly, non-examination of the investigating officer is not fatal to the prosecution case.

25. This Court finds that the learned courts below have recorded concurrent findings on the basis of evidences of the material witnesses of the case. Considering the limited scope for interference in revisional jurisdiction, this Court finds no illegality or perversity in the conviction of the petitioner. Accordingly, the conviction of the petitioner under Section 304(A) of the Indian Penal Code passed by the learned trial court and affirmed by the learned appellate court, is upheld. The acquittal of the petitioner for offence under section 279 IPC by the learned trial court has no bearing in the matter as the learned trial court had done so, only on the ground that no one had stated, at what speed, the tanker was being driven. However, the learned trial court recorded a finding of negligent driving by the petitioner which resulted into the accident and death of the victim and this finding was sufficient to convict the petitioner for offence under section 304(A) IPC.

26. At this juncture, it would be appropriate to refer the judgment passed in the case of State of Karnataka -vs- Satish reported in (1998) 8 SCC 493, wherein the Hon'ble Supreme Court at Para-4 has considered the consequence of mere finding of driving of an offending vehicle in "high speed" in absence of evidence of negligence or rashness on the part of the driver. It has been held that merely because the truck was being driven at a "high speed", does not speak of either "negligence" or

"rashness" by itself. The Hon'ble Supreme Court also held that in absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur".

27. The judgement in the case of Ravi Kapur -versus- State of Rajasthan (2012) 9 SCC 284 also deals with the applicability of the maxim "res ipsa loquitur" in the matter of conviction of the accused under sections 279 and 304A IPC.

28. In the case of Ravi Kapur -versus- State of Rajasthan (2012) 9 SCC 284 the Hon'ble Supreme Court has examined and explained at para 12 to 22-

(A) what is rash and negligent driving and (B) whether it can be gathered from the attendant circumstances.

29. It would be useful to refer to Paras- 12 to 15 and 20 of the aforesaid judgement as follows:

"(A) Rash and negligent driving

12. 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. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. 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 the language of Section 279 IPC. That is why the legislature in its wisdom has used the words "manner so rash or negligent as to endanger human life". The preliminary conditions, thus, are that (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. Once these ingredients are satisfied, the penalty contemplated under Section 279 IPC is attracted.

13. "Negligence" means 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. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the court. In a given case, even not doing what one was ought to do can constitute negligence.

14. The court has to adopt another parameter i.e. "reasonable care" in determining the question of negligence or contributory negligence. 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 duty attains a higher degree when the pedestrians happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a 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 pedestrians. They are expected to take sufficient care to avoid danger to others.

15. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes -- one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of "culpable rashness" and "culpable negligence" into consideration in cases of road accidents. "Culpable rashness" is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). "Culpable negligence" is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had,

he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the 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, not a conjectural inference, shows that the act is attributable to some person's negligent conduct. [Ref. Justice Rajesh Tandon's An Exhaustive Commentary on Motor Vehicles Act, 1988 (1st Edn., 2010).]"

"(B) Attendant circumstances and inference of rash and negligent driving

16.......................

20. In light of the above, now we have to examine if negligence in the case of an accident can be gathered from the attendant circumstances. We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence, the accident occurred. The factum of accident having been established, the court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone's negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof. Elements of this doctrine may be stated as:

• The event would not have occurred but for someone's negligence.

• The evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event.

• The accused was negligent and owed a duty of care towards the victim."

30. Considering the facts and circumstances of this case in the light of the ratio of the aforesaid judgements passed by the Hon'ble Supreme Court, this Court finds that the learned courts below have given concurrent findings of negligent driving by the petitioner based on evidences on record, the impugned judgements of conviction under section 304A of IPC are well reasoned judgements and do not call for any interference in revisional jurisdiction of this Court.

31. The Judgement relied upon by the learned counsel for the petitioner in Cr. Revision no 795 of 2014 does not apply to the facts and circumstances of the case as in the said case no one had seen as to the manner the offending tractor was being driven and there was no evidence on the point of rash and negligent driving by the driver. The present case is supported by eye-witnesses of the occurrence and there are concurrent findings of negligent driving by the petitioner based on materials on record.

32. As a cumulative effect of the aforesaid findings, the conviction of the petitioner under section 304A is upheld.

33. So far as the sentence of the petitioner is concerned, this Court finds that the occurrence is dated 07.11.2004 and more than 16 years have elapsed from the date of the incident and the petitioner has faced the rigour of the criminal case for a long time and he has no criminal antecedent and he is aged about 68 years at present. There is no minimum sentence, as such, prescribed under Section 304(A) of the Indian Penal Code and the maximum sentence prescribed is for three years. Considering the entire facts and circumstances of the case, this Court is of the view that the ends of justice would be served, if the sentence of the petitioner is modified to some extent.

34. Accordingly, the sentence of the petitioner for the offence under Section 304(A) of the Indian Penal Code is modified and

reduced to Rigorous Imprisonment for a period of six months with fine of Rs. 20,000/- to be deposited by the petitioner before the learned court below within a period of three months from the date of communication of a copy of this judgment to the learned court below. The period already undergone by the petitioner in judicial custody shall be set off.

35. In case, the fine amount is not deposited within the stipulated time frame, the petitioner would serve the remaining sentence as imposed by the learned court below.

36. The bail bond furnished by the petitioner is cancelled.

37. Interim order, if any, stands vacated.

38. Pending interlocutory application, if any, is closed.

39. Accordingly, with the aforesaid findings and modification in the sentence of the petitioner, this criminal revision application is hereby disposed of.

40. Let the Lower Court Records be sent back to the court concerned.

41. Let a copy of this Judgment be communicated to the learned court below through 'email/FAX.

(Anubha Rawat Choudhary, J.) Mukul/