Disposed

Bhuneshwar Oraon v. State of Jharkhand

Jharkhand HC15 Sept 2023Cr.Rev./213/2002

Case brief

AI extract

What is this about?

In a criminal revision, the High Court upheld the conviction of a petitioner for rash and negligent driving causing death but reduced his sentence to the period already undergone due to his age and prolonged detention, ordering immediate release unless detained for another case.

What did the court decide?

The petitioner is directed to be released from custody forthwith; the conviction is upheld but the sentence is reduced to the period already undergone.

Bhuneshwar Oraon Vs State of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2023)

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Cr.Rev.No.213 of 2002

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No.213 of 2002

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Bhuneshwar Oraon, Son of Ram Gulam Oraon, resident of villageJangipur, Police Station- Nagar Untari, District- Garhwa

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.... .... …. Petitioner

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Versus

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The State of Jharkhand

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.... .... .... Opposite Party ------

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For the Petitioner : Mr. Gopal Krishna Sinha, Advocate Ms. Chanchal Chhaya, Advocate For the State : Mr. Subodh Kr. Dubey, Addl. P.P. ------

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P R E S E N T

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HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court : Heard the parties.

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The criminal revision is directed against the judgment of confirmation of conviction and dismissal of the Criminal Appeal No.58 of 1998 dated 14.03.2002 passed by the 3rd Additional Sessions Judge, Hazaribagh.

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The brief fact of the case is that on 01.09.1994 at about 4:00 pm when the informant- Satya Narayan Prasad Soni was sitting on a bridge he heard the noise of crushing of his nephew namely Manish Kumar by the dumper bearing registration No. BR 14A 1980. The petitioner herein is the driver of the said dumper who escaped from the place of occurrence. It is alleged the petitioner was driving the said dumper rashly and negligently. On the basis of the Fardbeyan of the informant, the case was registered. After investigation of the case; Police submitted charge-sheet against the

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Cr.Rev.No.213 of 2002

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petitioner for having committed the offence punishable under Section 279, 304 A of the Indian Penal Code.

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In support of its case, the prosecution altogether examined nine witnesses. P.W.1- Ram Chandra Ram is one of the Investigating Officers of the case who after conclusion of the investigation submitted charge-sheet. He proved the formal F.I.R., Fardbeyan, seizure list of the dumper, inquest report which have been marked Ext. 1 to 4 respectively.

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P.Ws.2, 6, 7 and 8 are material witnesses who have stated about the dumper being rashly and negligently driven by the petitioner; crushing the deceased boy.

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P.W.4 took the name of the petitioner to be the driver of the said dumpher.

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P.W.5 is the informant who is a post occurrence witness.

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P.W.6 and P.W.7 have stated about the driver of the dumper driving

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the dumper rashly and negligently; crushing the nephew of the P.W.5 resulting in his death at the spot.

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P.W.9 is the doctor who conducted the autopsy on the dead body of the deceased.

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The learned Judicial Magistrate-1st Class, Hazaribagh considering the materials in the record held the petitioner guilty of the offence punishable under Sections 279/304 A of the Indian Penal Code and sentenced him to rigorous imprisonment for six months for the offence punishable under Section 279 of the Indian Penal Code and to rigorous imprisonment for two years for the offence punishable under Section 304 A of the Indian Penal Code and ordered that the sentences shall run concurrently.

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Being aggrieved by the judgment of conviction passed by the learned Judicial Magistrate, the petitioner filed Criminal Appeal No.58 of 1998 which was heard and disposed of by the learned appellate court.

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Learned appellate court below made independent appreciation of the evidence in the record and considered that P.W.6 and P.W.7 both have stated about the occurrence having been seen by them and both of them have seen the petitioner driving the dumper rashly and negligently and have also seen the dumper dashing and crushing the boy on the road; which resulted in the death of the boy; who is the nephew of the P.W.5. Both of them have identified the petitioner to be the driver of the said dumper. The testimonies of P.W.6 and P.W.7 were corroborated by the testimony of P.W.2 also and non-examination of the Investigating Officer could not give weightage to disbelieve the case of the prosecution and went on to hold that the evidence in the record is sufficient to establish the charge for the offences punishable under Section 279/304 A of the Indian Penal Code against the petitioner and finding no merit in the appeal, dismissed the appeal.

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Mr. Gopal Krishna Sinha- learned counsel for the petitioner submits that both the courts below failed to appreciate the evidence in the record in its proper perspective and ignored the vital contradictions in the testimony of the prosecution witnesses. It is next submitted that both the courts below failed to take the adverse inference of non-examination of the Investigating Officer. It is next submitted that non-mentioning of the name of the petitioner in the First Information Report goes to show that the petitioner has been falsely implicated in this case. Hence, it is submitted that the

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judgment of conviction and order of sentence passed by both the courts below be set aside and the petitioner be released from custody. It is next submitted that now the petitioner is an old man of 68 years and he has been in custody since 19.06.2023 and earlier also he was in custody from 27.05.2002. It is next submitted that the petitioner has undergone the rigors of the criminal trial for several decades. Hence, it is submitted that in case this Court hold that the conviction of the appellant-petitioner is proper then the sentence be reduced to the period already undergone by the petitioner. 14. Learned Addl.P.P. appearing for the State on the other hand defends the impugned judgment of conviction as well as the order of sentence passed by the learned Magistrate and the judgment of dismissal of appeal passed by the learned lower appellate court in the criminal appeal. It is further submitted by the Additional Public Prosecutor that there is credible testimony which has come through the eye-witness account of the P.W.6 and P.W.7; who have categorically stated about the petitioner driving the dumper in rash and negligent manner; which caused the death of the nephew of the P.W.5. It is lastly submitted that there is no merit in this revision, hence, the same be dismissed.

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Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that by now it is a settled principle of law that nonexamination of the Investigating Officer per se is not fatal to the case of the prosecution and only in those cases where the prosecution has been prejudiced by non-examination of the Investigating Officer such nonexamination may be fatal for the case of the prosecution as has been held by

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the Hon’ble Supreme Court of India in the case of Munna Lal vs. State of Uttar Pradesh reported in 2023 SCC OnLine SC 80 paragraph-28 of which reads as under:-

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“28. Before embarking on the exercise of deciding the fate of these appellants, it would be apt to take note of certain principles relevant for a decision on these two appeals. Needless to observe, such principles have evolved over the years and crystallized into ‘settled principles of law’. These are:

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(a). Section 134 of Indian Evidence Act, 1872, enshrines the well-recognized maxim that evidence has to be weighed and not counted. In other words, it is the quality of evidence that matters and not the quantity. As a sequitur, even in a case of murder, it is not necessary to insist upon a plurality of witnesses and the oral evidence of a single witness, if found to be reliable and trustworthy, could lead to a conviction.

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(b). Generally speaking, oral testimony may be classified into three categories, viz.:

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(i) Wholly reliable;

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(ii) Wholly unreliable;

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(iii) Neither wholly reliable nor wholly unreliable.

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The first two category of cases may not pose serious difficulty for the court in arriving at its conclusion(s). However, in the third category of cases, the court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of the rule of prudence.

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(c). A defective investigation is not always fatal to the prosecution where ocular testimony is found credible and cogent. While in such a case the court has to be circumspect in evaluating the evidence, a faulty investigation cannot in all cases be a determinative factor to throw out a credible prosecution version.

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(d). Non-examination of the Investigating Officer must result in prejudice to the accused; if no prejudice is caused, mere nonexamination would not render the prosecution case fatal.

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(e). Discrepancies do creep in, when a witness deposes in a natural manner after lapse of some time, and if such discrepancies are comparatively of a minor nature and do not go to the root of the prosecution story, then the same may not be given undue importance.” (Emphasis supplied)

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Now, coming to the facts of the case; this Court finds that the

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petitioner has failed to come up with a case that he has been prejudiced in

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any manner by non-examination of one of the Investigating Officer out of

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the 2 Investigating Officers of the case. Hence, in the considered opinion of

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this Court in the facts of this case, non-examination of the Investigating Officer is not fatal.

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Now coming to the evidence in the record as already indicated above, the P.W.6- Kayum Miyan and P.W7- Bandhan Gorai are the eye-witnesses of the occurrence and both of them have stated about the petitioner driving the dumper in rash and negligent manner which dashed the boy who was playing by the side of the road; when the said dumper crushed him. Nothing has been elicited in the cross-examination of the P.W.6 and P.W.7 to discard or disbelieve their testimonies. The testimonies of the P.W.6 and P.W.7 are corroborated by the testimony of the P.W.4 as well as other material witnesses. It is a settled principle of law that ordinarily it is not open for the High Court to interfere with the concurrent findings of the courts below especially by re-appreciating the evidence in its revisional jurisdiction as has been held by the Hon’ble Supreme Court of India in the case of State of A.P. vs. Pituhuk Sreeinvanasa Rao reported in (2000) 9 SCC 537.

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It is also a settled principle of law that normally a revisional jurisdiction should be exercised on a question of law and only when the actual appreciation involved is a perverse finding then only in exercise of revisional jurisdiction the factual findings may be interfere with; as has been held by the Hon’ble Supreme Court of India in the case of Chandra Babu @ Moses vs. State through Inspector of Police passed in Criminal Appeal No.866 of 2015 dated 07.07.2015 .

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Now, coming to the facts of the case; as has already been discussed above; there is no perversity in the findings of facts by both the courts

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below. There is no question of law involved in this revision. Accordingly, this Court is of the considered view that there is no merit in this revision so far as the judgment of conviction passed by the learned Judicial Magistrate; which was upheld by the learned lower appellate court is concerned.

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So far as the sentence is concerned, considering the fact that the petitioner is an old person of 68 years and has undergone the rigors of the criminal trial for about 25 years and has spent considerable period of time in custody as submitted by the learned counsel for the petitioner, hence, the sentence of the petitioner is reduced to the period he has already undergone in custody; in connection with this case.

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