Hemlal Pandit vs The State Of Jharkhand
2022 Latest Caselaw 3155 Jhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  (Criminal Revisional Jurisdiction)
                Criminal Revision No. 83 of 2015
Hemlal Pandit, s/o Sri Munshi Pandit, r/o village Bichchhi Pahari,
PO & PS Koderma, District Koderma                   ... Petitioner

                               Versus

The State of Jharkhand                             ... Opposite Party

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

For the Petitioner         : Mr. A.K. Sahani, Advocate
                             Mr. Deepak Kumar, Advocate
For the State              : Mr. Jitendra Pandey, APP
                              ---------

Order No.10/Dated: 12th August 2022

The convict, who suffered the sentence of RI for three months and fine of Rs. 500/- under section 279 of the Indian Penal Code and RI for one year with fine of Rs. 500/- under section 338 of the Indian Penal Code, with a default stipulation to undergo SI for further one month in case the fine amount of Rs. 1,000/- for both the offences, is the petitioner before this Court.

2. Koderma (Telaiya) PS Case No. 85 of 2005 was lodged on the basis of the fardbeyan of Kishundeo Mandal recorded on 17th February 2005. The informant alleged that Hemlal Pandit who was driving Marshal vehicle No. JH-12A-5838 rashly and negligently caused serious head and leg injuries to Pappu Kumar who was leaving for school at that time. After the investigation a charge-sheet was submitted for the offence under sections 279, 337 and 338 of the Indian Penal Code and substance of accusation was explained to the petitioner on 21st January 2006.

3. Six witnesses were examined by the prosecution to prove the aforesaid charges out of whom PW3 is the informant of this case. The other witnesses including mother of the victim boy also claimed that they saw the incident in which Pappu Kumar @ Chhotu was grievously injured by a Marshal vehicle driven by the petitioner.

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4. Dr. Haridarshan Singh who was examined as PW6 found the following injuries on the person of Pappu Kumar:

"(I) Incised wound over left side of fore-head (II) Swelling deformity left thigh, X-ray shows fracture left femer.

Time of Injury: Within one hour.

Mark of identification: Black mole over right cheek. Nature of Injury: Injury No.1 is simple caused by sharp cutting substance.

Injury No.2, is grievous caused by hard blunt substance."

5. On the basis of the evidences laid by the prosecution during the trial, the learned Judicial Magistrate, 1 st Class, Koderma held that the charges under sections 279 and 338 of the Indian Penal Code were proved against the accused and sentenced him to the aforesaid terms as noticed above.

6. The learned Judicial Magistrate has held as under:

"17. After hearing learned lawyer for defence and learned A.P.P. and perusing the evidence available on record, first of all I find that on the relevant date and time of the occurrence the age of the victim, namely - Pappu Kumar @ Chhotu, s/o- Rajendra Pd. Verma, was six years as deposed by his mother (P.W.1). Secondly, the learned defence lawyer has not pointed out any vital contradiction in the evidence of the prosecution witnesses so as to disbelieve their testimony. So far as time of occurrence is concerned, all P.Ws have deposed to the effect that the occurrence took place in between 9.00 to 10.00 am. This fact has also been corroborated by medical evidence that the injured was treated on the relevant day at 11.30 hrs. In this regard I am of view that after lapse of more than two years, non-mentioning the exact time of occurrence by the prosecution witnesses is not fatal for prosecution case. Further, the statements of all P.Ws does not show that there is any reason why they would depose falsely in order to help the prosecution case.

I find that the evidence available on record clearly reveal that the accused was driving the marshal jeep on a public way in rashly and negligently manner. The victim, who was going towards his school through the right sideways, got injuries on his person due to hit caused by the marshal-jeep. The evidence available on record clearly establishes that the act of the accused was such as to endanger human life or personal safety of others as the accused failed to negotiate the distance safely during the driving of vehicle and it is only because of the speed of vehicle the accused cannot control the vehicle and met with an incident.

I do not agree with the view of learned defence lawyer that non examination of I.O. and Motor Vehicle Inspector caused prejudice to the accused. I find that witnesses have not been cross-examined regarding their earlier statements and the accused has not take defence on the ground of mechanical defect in the vehicle. So I am of view that non examination of said witnesses are not fatal for the prosecution case.

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From the above discussion I find and hold that the prosecution has succeeded to prove the fact that the accused was driving the vehicle on a public way in rashly manner. For the offence u/s 279 of I.P.C., and caused grievous hurt to the victim, for the offence u/s 338 of the I.P.C. section 338 of I.P.C. is aggravated form of the offence under section 337 of the I.P.C. Accordingly, I hold the accused guilty u/s 279 and 338 of the I.P.C. The bail of the accused is hereby cancelled and his bailors are discharged from the liabilities of bail bonds. The convicted accused is taken into custody."

7. In Criminal Appeal No. 37 of 2011 the appellate Court has held as under:

"13. .................. From the above discussions, I find that all the witnesses examined on behalf of the prosecution have deposed to the effect that the occurrence took place in between 9.00 to 10.00 A.M. This fact has also been supported and corroborated by the medical evidence in which he has specifically stated that the injured was examined at about 11.30 hours. He has also opined that the time injuries are of within one hour. Accordingly, I find and hold that the prosecution witnesses have come to prove the time, place and manner of the occurrence.

14. During the course of argument, the learned counsel for the appellant submitted that the witnesses examined on behalf of the prosecution are highly interested and the learned court below erred in relying upon their in evidence. The learned P.P., I/c also controverted the argument on behalf of the appellant. In this regard, I find that although P.W.1,2 & 4 are the own family members of the victim out of which P.W.1 who is the mother of the victim has stated in her evidence that she was all along with her son who was going to school and she left her son and stood at a short distance to watch her son in the meantime, the incident took place. P.W.2 the grand father appears to be a chance witness who has stated in his evidence that he was present near Kameshwari Nursing Home by the side of the road and witnessed the incident with his own eyes. P.W.3 is an independent witness and also informant of this case who has arrived to the place of occurrence just after the incident. This witness is an independent and has supported and corroborated the averments as given by him in his fard-beyan. P.W.4 has come to say that he was also going to leave his son who was going with her mother for school. In the meantime, the incident has taken place. P.W.5 is an independent witness who has also supported the occurrence as alleged by the prosecution. P.W.6 the doctor who has examined the victim. Accordingly, I find that P.W.3, P.W.5 & P.W.6 are the independent witness who have come to support the case of prosecution and the learned court below has rightly relied upon the evidences of the prosecution witnesses.

15. During the course of argument, the learned counsel for the appellant has further submitted that in this case the Investigating Officers including the Motor Vehicle Inspector has not been examined which caused prejudiced to the accused. The learned P.P.I/c has also controverted and submitted that all the witnesses have not been cross- examined with regard their earlier statement. I find that all 4 Criminal Revision No. 83 of 2015

the prosecution witnesses examined on behalf of the prosecution have not been cross-examined by the defence regarding their earlier statement and the accused has not taken the defence on the ground of mechanical defect of the vehicle. I have earlier come to the conclusion that the prosecution witnesses have clearly proved the time, manner and place of occurrence. Accordingly, I find and hold that none examination of I.O and Motor Vehicle Inspector are not fatal to the case of prosecution."

8. Mr. A.K. Sahani, the learned counsel for the petitioner reiterating the plea taken by the petitioner in the Courts below that non-examination of the Investigating Officer and the Motor Vehicle Inspector caused serious prejudice to the accused during the trial, submits that in view of the judgment of the Hon'ble Supreme Court in "Prakash Chandra Agnihotri v. State of M.P." (1990) Supp SCC 764 the sentence awarded to the petitioner may be modified to the sentence of fine.

9. In the opinion of this Court, non-examination of the Motor Vehicle Inspector is not fatal for the prosecution. The occurrence is admitted, the vehicle was seized from the place of occurrence and while so place of occurrence is established. The witnesses deposed in the Court that Marshal vehicle was being driven by Hemlal Pandit and during the trial the accused did not dispute his identity. Therefore, non-examination of the Investigating Officer would not ifso facto vitiate the trial. The petitioner has failed to demonstrate that on account of the Investigating Officer not coming in the dock he could not elicit material facts from him which in turn caused prejudice to him.

10. Having examined the materials on record, this Court holds that the charges under sections 279 and 338 of the Indian Penal Code have rightly been proved against the petitioner and, therefore, the order of conviction passed against the petitioner in T.R. No. 761 of 2011 dated 21st September 2011 is affirmed.

11. It is well settled that while exercising revisional jurisdiction the High Court would not enter into minute reappreciation of the evidence and except in very exceptional kind of cases in which refusal by the High Court to exercise revisional 5 Criminal Revision No. 83 of 2015

jurisdiction shall result in miscarriage of justice, judgments of the Courts below must stand.

12. On the question of sentence, Mr. A.K. Sahani, the learned counsel for the petitioner would submit that it is about 17 years the petitioner has been suffering rigors of trial, conviction, appeal and revision. As would appear from the materials on record, the victim boy suffered simple head injury and fracture of left thigh but he survived. There is no record of criminal antecedent, the petitioner is the first offender and has remained in custody for more than 2 months.

13. In view of the judgment in "Prakash Chandra Agnihotri" which has been referred to by the Hon'ble Supreme Court in "Surendran v. Sub-Inspector of Police" 2021 (3) East Cr. C 201 (SC), this Court is inclined to interfere with the order of sentence passed against the petitioner for the offences under sections 279 and 338 of the Indian Penal Code which are, accordingly, set aside.

14. In view of the mitigating circumstances noticed hereinabove, it would serve the interest of justice if sentence awarded to the petitioner is modified to the period already undergone. The petitioner is further directed to pay compensation under section 357 of the Code of Criminal Procedure to the tune of Rs.25,000/- to the victim boy. On deposit of fine amount and compensation paid to the victim boy within three months, the bail-bonds furnished by the petitioner pursuant to the order dated 12th May 2015 passed by this Court shall stand discharged.

15. Criminal Revision No. 83 of 2015 is allowed in the aforesaid terms.

16. Let the lower Court records be sent to the Court concerned, forthwith.

(Shree Chandrashekhar, J.)

RKM