Prabhu Bhuian Son Of Bhunwa Bhuian vs State Of Jharkhand
2021 Latest Caselaw 3220 Jhar

                IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                 Cr. Rev. No. 482 of 2012
          Prabhu Bhuian son of Bhunwa Bhuian, resident of Village-
          Bodum Bazar, P.O.- Sadar, P.S.- Kotwali, District Hazaribag,
          presently residing of Karmali, P.O. and P.S. B. Nagar Jori,
          District- Chatra                ...     ...   ... Petitioner
                                -Versus-
          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. Prabhash Chandra Sinha, Adv.

          For the State           : Mr. Azeemuddin, A.P.P
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                        Through Video Conferencing

12/02.09.2021         Heard Mr. Prabhash Chandra Sinha, the learned

counsel appearing on behalf of the petitioner.

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

3. This criminal revision application is directed against the Judgment dated 25.05.2012 passed by the learned Principal Sessions Judge, Chatra in Criminal Appeal No.57 of 2009 whereby and whereunder the learned appellate court affirmed the Judgment of conviction and the order of sentence dated 06.11.2009 passed by the learned S.D.J.M, Chatra in G.R. Case No. 60 of 2006 / T.R. Case No. 467 of 2009 (arising out of Bashishth Nagar P.S. Case No.05/2006 dated 25.01.2006) and dismissed the criminal appeal.

4. The learned trial court had convicted the petitioner under Sections 279 and 304-A of the Indian Penal Code and had sentenced him to undergo Rigorous Imprisonment for two years for the offence under Section 304-A of the Indian Penal Code and Rigorous Imprisonment for six months for the offence under Section 279 of the Indian Penal Code and both the sentences were directed to run concurrently.

Arguments on behalf of the petitioner

5. Learned counsel for the petitioner submitted that the impugned judgments are ex-facie perverse which cannot be sustained in the eyes of law. He submitted that as per the F.I.R., the petitioner had made efforts to stop the vehicle, but the same could not be stopped and the accident had taken place and accordingly, rash and negligent driving could not be proved by the prosecution before the learned trial court. Learned counsel further submitted that in the F.I.R., the number of the vehicle was not mentioned, but subsequently when the vehicle was seized and sent for examination by the Motor Vehicle Inspector, the vehicle number was given and as such, the identity of the vehicle is also in dispute. He also submitted that the Doctor has not been examined in the case, although the post-mortem report has been proved by the Investigating Officer of the case. He submitted that the doctor having not been examined, the petitioner could not cross-examine the doctor who had conducted post mortem and the real cause of death could not be brought on record and therefore, the petitioner has been prejudiced. He submitted that in view of the aforesaid facts and circumstances, the case of the prosecution could not be proved beyond all reasonable doubts and the petitioner was entitled to benefit of doubt which was not given by the learned courts below and they have wrongly convicted the petitioner.

6. The learned counsel for the petitioner further submitted that without prejudice to the aforesaid submissions, considering the fact that the offence is of the year 2006 and much time have elapsed since then and the petitioner does not have any criminal antecedent and the petitioner has faced the rigorous of the criminal case for a long period, a sympathetic view may be taken and the sentence may be modified and reduced and some fine may be imposed upon the petitioner.

Arguments on behalf of the Opposite Party-State

7. Learned A.P.P. appearing on behalf of the opposite party- State, on the other hand, opposed the prayer and submitted that there are concurrent findings recorded by the learned courts below after appreciating all the evidences on record. He further submitted that the time, place and the manner of occurrence has been proved by the prosecution. He also submitted that two eye witnesses i.e. P.W.-2 and P.W.-3 who were present at the place of occurrence have fully supported the prosecution case who deposed that the victim had died due to the accident caused by the tractor being driven by the petitioner and as such, there is no dispute that death of the victim was caused due to the motor vehicle accident by the tractor being driven by the petitioner. He also submits that rash and negligent driving has also been proved by the prosecution. He submitted that merely because the petitioner is said to have made attempts to stop the vehicle is not sufficient to discard the finding of rash and negligent driving by the petitioner. The learned A.P.P. also submitted that the investigating officer of the case has exhibited the post mortem report which indicates that nature of injury which caused death and accordingly, the death of the victim has been fully corroborated by the post mortem report. He has also submitted that Motor Vehicle Report indicates that the tractor did not suffer from any mechanical defect. He submitted that identity of driver of the tractor was clearly indicated in the F.I.R. itself and merely because the tractor number was not mentioned in the F.I.R., the same is not fatal to the prosecution. He submitted that in view of the specific nature of evidence available against the petitioner, the impugned judgments do not call for any interference by this Court under revisional jurisdiction.

Findings of this Court

8. The prosecution case is based on the fardbeyan of the Informant namely, Suryadeo Yadav (P.W.-3) alleging inter-alia is that on 25.01.2006 at about 8.00 A.M., Dashrath Yadav @ Bullu Yadav, the brother of the Informant alongwith Bigal Yadav and Badhan Bhuian were sitting in front of the house of Prabhu Mahto and in the meantime, the Informant also came there. In the meantime, one Escort Tractor being driven by its driver came there. The driver tried to stop the tractor towards the road, but the tractor dashed his brother Dashrath Yadav due to rash and negligent driving by the driver. While taking him to Hunterganj Hospital by the Informant, his brother died on the way.

9. On the basis of the fardbeyan of the informant, the case was registered as Bashishth Nagar P.S. Case No.05/2006 dated 25.01.2006 under Sections 279 and 304-A of the Indian Penal Code against the driver of the Escort Tractor-435. After completion of investigation, charge-sheet was submitted against the petitioner who was the driver of Escorts Tractor No.JH-02B-8158 and cognizance of the offence was taken against the petitioner under the same sections. Thereafter, the substance of accusation under Sections 279 and 304-A of the Indian Penal Code was read over and explained to the petitioner in Hindi to which he pleaded not guilty and claimed to be tried.

10. In course of trial, the prosecution examined altogether 04 witnesses in support of its case. P.W.-1 is Badhan Bhuiyan who was recalled for cross-examination, but he could not appear for cross-examination and ultimately, his evidence was expunged. P.W.-2 is Laturi Yadav, P.W.-3 is Suryadeo Yadav who is the Informant of the case and P.W.-4 is Vinay Kumar Singh who is the Investigating Officer of the case. The prosecution exhibited

the Post-Mortem Report of the deceased as Exhibit-1 and M.V.I. Report of the tractor as Exhibit-2.

11. After closure of prosecution evidence, 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.

12. The learned trial court considered the evidences available on record and recorded its findings in Para-12 which read as under:

"12. From the evidence, it is crystal clear that the occurrence took place due to rash and negligent driving of the accused Prabhu Bhuiyan who dashed Dashrath Yadav causing his death. It is also clear that the alleged tractor was mechanically in order at the time of occurrence which also shows that the occurrence took place due to rash and negligent driving of the accused. The post-mortem report also shows that the injury sustained by the deceased Dashrath Yadav was caused by hard and blunt substance and he died due to injury in abdominal vessel causing hemorrhage and shock. In this way, the accused Prabhu Bhuiyan is found guilty for the offence punishable u/ss. 279 and 304/A of the I.P.C."

13. The learned trial court convicted the petitioner under Sections 279 and 304-A of the Indian Penal Code and sentenced him as already mentioned above.

14. The learned appellate court also considered the evidences on record and the arguments of the parties and summarized its findings in Para-13 that the prosecution proved the charge against the appellant, proved P.O., identified appellant (the petitioner herein) as a person who rashly and negligently on public road dashed Dashrath (the deceased).

15. After hearing the learned counsel for the parties and after considering the facts and circumstances of this case and going through the materials on record, this Court finds that P.W.-3 is the Informant of the case and own brother of the deceased namely, Dashrath Yadav and he is also an eye witness to the occurrence. He deposed that at the time of the occurrence, he alongwith other persons were sitting near the fire and in the meantime, Prabhu Bhuian came on his tractor and dashed Dashrath Yadav due to his rash and negligent driving. He further deposed that Dashrath Yadav was injured and while taking him to hospital, he died on the way. He claimed to identify the petitioner in court. This Court finds that the Informant has fully supported his version stated in the F.I.R..

16. This Court further finds that P.W.-3 is also an eye witness to the occurrence and he has also fully supported the prosecution case thereby corroborating the evidence of the informant and he also claimed to identify the petitioner in court. P.W.-4 is the Investigating Officer of the case and he has proved the place of occurrence. He exhibited the Post-Mortem Report of the deceased as Exhibit-1 which shows that the victim died to due to hemorrhage injury in his abdominal vessel. He also exhibited the Motor Vehicle Inspection Report as Exhibit-2 which shows that the Escort Tractor No. JH-02B-8158 was mechanically in order.

17. This Court finds that the learned courts below have meticulously examined the materials available on record and, after scrutinizing the materials, have clearly recorded concurrent findings on the basis of the evidences of the eye witnesses that the tractor was being driven by the petitioner in rash and negligent manner which caused the accident. Considering the limited scope in revisional jurisdiction, this Court finds no illegality or perversity in the impugned

judgments of conviction of the petitioner and accordingly, the conviction of the petitioner under Sections 279 and 304-A of the Indian Penal Code passed by the learned trial court and affirmed by the learned appellate court is upheld.

18. So far as the sentence of the petitioner is concerned, this court finds that the incident is dated 25.01.2006 and more than 15 years have elapsed from the date of the incident and the petitioner has faced the rigorous of the criminal case for a long time. This Court also finds that 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 this case and also the fact that victim was sitting by the side of the road, 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.

19. Accordingly, the sentence of the petitioner for 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. 25,000/- 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 sentence of the petitioner for the offence under Section 279 of the Indian Penal Code does not call for any interference. Both the sentences shall run concurrently and the period of custody undergone by the petitioner in judicial custody shall be set off.

20. In case, the fine amount is not deposited within the stipulated time frame, the petitioner would serve the sentences as imposed by the learned trial court.

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

22. Interim order, if any, stands vacated.

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

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

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

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

(Anubha Rawat Choudhary, J.) Binit/