High Court ruhused conviction under rash driving and negligence charges where prosecution failed to positively identify petitioner as the driver and did not ask specific Section 313 CrPC questions regarding the act.
Order dated 24.03.2006 and 18.08.2006 set aside; petitioner discharged from bail liability; record remanded.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 971 of 2006
Kamaru Jama Khan @ Kamru Jama Khan Warsi @ Kamru Jama Khan ….. Petitioner
Versus State of Jharkhand ….. Opposite Party
CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN
--------For the Petitioner : Mr. Pandey Neeraj Rai, Advocate For the State : Mr. V.S. Sahay, APP --------
06/ 07.11.2022 Heard learned counsel for the parties.
2. The instant criminal revision application is directed against the judgment dated 18.08.2006, passed by the learned Sessions Judge, Hazaribagh in Cr. Appeal No. 45 of 2006, whereby the judgment of conviction and order of sentence, both dated 24.03.2006, passed in G.R. No. 16 of 2000, corresponding to T.R.
No. 907 of 2006, arising out of Barhi P.S. Case No. 7 of 2000, whereby the petitioner has been convicted under Sections 279, 337, 338 and 304A of the Indian Penal Code and was sentenced to two months simple imprisonment under Sections 279 & 337 of the IPC with fine of Rs. 500/- under both the Section and in default of fine, further SI for 10 days. Further, petitioner was sentenced to six months SI under Sections 338 & 304A IPC and fine of Rs. 500/under both the Sections and in default of payment of fine, further SI for 10 days and all the sentences were ordered to run concurrently, has been affirmed.
3. The prosecution case in short is that the informant-Md. Kalim Khan gave his fardbeyan on 06.01.2000 mentioning therein
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that on 05.01.2000 he was returning to his home Barkattha along with nine other persons in a Ambassador Car bearing registration no. B.R. 20A 7557. One Daud Ansari was driving the vehicle at about 11 P.M. When he reached near Srinagar village at that time a Tanker came from the opposite direction driven rashly and negligently by its driver and collided with the Car, due to which his vehicle was badly damaged and the occupants sitting on the vehicle received grievous injuries and one Md. Sahab died on the spot. Tanker bearing registration no. BEY 6341 was also turned turtle. The informant also received injuries. Due to the said accident four persons died and others received grievous injuries.
On the basis of the fardbeyan of the informant, Barhi
P.S. Case No.7/2000 was instituted under Sections 279, 337, 338, 304 A and 427 of the I.P.C. After investigation, the police submitted charge sheet on 18.07.2001 showing this appellant who is driver of the aforesaid Tanker as an accused. On 5.6.2002 substance of accusation was explained to the accused under Sections 279, 337, 338, 304A and 427 of the I.P.C, and charges were framed and after trial, petitioner was convicted.
4. Mr. Pandey Neeraj Rai, learned counsel for the petitioner assailed the impugned judgment on following grounds:
i) The prosecution has failed to prove that the petitioner
was driving the tankar. In this regard he referred to the deposition of both the prosecution witnesses, wherein both the
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witnesses have categorically stated that they can identify the Driver as the accident took place in front of them. However, both the witnesses have not identified this petitioner and the prosecution has failed to conduct TI parade for proper identification. In this regard, learned counsel further submits that admittedly, the accident took place but unless and until the petitioner is identified that he was the driver, he cannot be convicted under the aforesaid section.
ii) Learned counsel submits that no specific question has been asked under Section 313 of Cr. P.C. In this regard he referred to the case of Sharad Birdichand Sarda versus State of Maharashtra reported in AIR 1984 SC 1622 wherein it has been held by the Hon’ble Apex Court that Section 313 is not only formality rather it has to be complied in true letter and spirit and specific question has to be asked against the accused persons against whom the punishment is proposed to be imposed and in this case three questions were asked from the petitioner wherein question no.1 and 3 were formal in nature and question no.2 was only with respect to accident and not with respect to as to whether the petitioner was driving the vehicle or not.
5. Learned APP opposed the prayer of acquittal and submits that there is concurrent finding and no interference is required. However, sentence may be modified in lieu of fine.
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6. Having regard to the facts of the case and after going through the impugned judgment and the deposition of the prosecution witnesses, admittedly as per the FIR accident took place between the Tankar and the Taxi as such it cannot be said that accident has not taken place. However, by going through the deposition of the prosecution witnesses it appears that both the witnesses have categorically stated that they can identify the driver, however, the prosecution has not taken any effort by producing the petitioner in TI parade or even otherwise for his identification by the prosecution witnesses.
7. The law is no more res integra, inasmuch as, no person can be convicted unless he has been proved guilty beyond all shadow of reasonable doubt. In the case at hand though the accident has been proved as per the FIR, accident occurred, however, who was driver has not been proved. Though both of the witnesses have claimed that they can identify the driver, however, in none of the deposition it transpires that they have actually identified the petitioner as a driver.
8. It further transpires that under Section 313 IPC out of three questions, question nos.1 and 3 were formal in nature. The question no.2 relates to the accident and no specific question with regard to the petitioner was asked as to whether petitioner was actually driving the tankar. In this regard also the law is now well settled that for proving guilty specific question under Section 313
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IPC is to be raised and it is not mere formality. Thus, on both accounts i.e. the petitioner has not been identified in any manner by any of the prosecution witnesses nor he has been asked specific question with regard to conviction under Section 304 A IPC and other allied section relating to rash and negligence driving.
9. In view of the aforesaid discussions, the instant application needs interference. Consequently, the order dated 24.03.2006, passed by the learned trial court and order dated 18.08.2006, passed by the learned appellate court, are hereby quashed and set aside.
10. The instant criminal revision application stands allowed.
11. The petitioner shall be discharged from the liability of his bail bond.
12. Let the copy of this order be communicated to the court below.
13. Let the lower court record be sent back to the court
concerned forthwith.
(Deepak Roshan, J.)
Pramanik/
2 issues framed by the court
Whether the conviction can be sustained when prosecution witnesses failed to identify the petitioner as the driver of the vehicle?
Whether specific questions under Section 313 CrPC regarding the act of driving were asked for conviction?
Colour shows how this judgement treated each authority
Sharad Birdichand Sarda vs State of MaharashtraReferred¶21
_Sharad Birdichand Sarda versus State of Maharashtra_ reported in AIR 1984 SC 1622 · Who else cites this
2 provisions across 2 enactments
Kamaru Jama Khan @ Kamru Jama Khan Warsi @ Kamru Jama Khan
State of Jharkhand
Deepak Roshan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court