Sudhir Thakur vs State Of Jharkhand

The instant application is directed against the judgment dated 28.10.2002 passed by the learned 6th Additional District Judge, (Fast Track Court 3),

Godda in Criminal Appeal No. 46 of 2000/26 of 2000, whereby the judgment of conviction and order of sentence dated 29.08.2000 passed by the

learned 1st Class Judicial Magistrate, Godda in G. R. Case No. 224 of 1994 (T. R. No. 308 of 2000), whereby the petitioner has been convicted for

the offences under Sections 279, 304A and 201 of the Indian Penal Code and was sentenced to undergo six months imprisonment for each offence

and the sentences were to run currently, has been affirmed.

The brief facts of the case are that one Asgar Ali (uncle of deceased Samiruddin) filed a written application on 12.03.1994 stating therein that on

08.03.1994 at 08:00 A.M. the accused Digamber Thakur (the owner of tractor) came with his tractor to the house of Samiruddin (the deceased) to

pick him up for loading sand as labourers were not sufficiently available. It is also added that the three labourers, namely, Seikh Bochu (P.W. â€" 4),

Seikh Mazid and Seikh Khurshid (P.W. â€" 3) were already present riding on the tractor who always used to work as labour with his nephew. The

deceased Samiruddin also went along with them riding upon tractor to load sand on account of shortage of labourers, but he did not return till 04:00

P.M. Then, the informant went to the house of aforesaid labourers of Mednichak for making enquiry where he learnt about the fact that his nephew

Samiruddin has fallen down from the tractor near “Mednichak Haat†upon a sudden application of brake by the driver, Sudhir Thakur who was

driving the tractor at the relevant time.

The learned counsel for the petitioner submits that the vehicle which has been alleged to have been driven rashly and negligently by the petitioner has

not been seized by the Police. Even the registration number of the alleged tractor has not been mentioned in the First Information Report. The

statement of the Investigating Officer clearly transpires that he has not seen the driver nor he has seized the tractor and the entire conviction has been

made on the mere surmises and conjecture. It has further been submitted by the learned counsel for the petitioner that even the dead body of the

victim has not been recovered by the prosecution and the petitioner has been falsely implicated in this case. As a matter of fact, there is no

corroborative evidence either in the deposition or in the First Information Report. It has further been contended that no reason has been assigned by

the prosecution that when the First Information Report was lodged by the father on 12.03.1994 itself, why it had reached before the court on

15.03.1994 when it was sent on 13.03.1994. The delay in lodging the First Information Report gives a presumption of concocted story basically the

petitioner has been convicted on the basis of circumstantial evidence and there is no direct evidence so as to prosecute the petitioner.

Per contra, the learned A.P.P. supports the impugned orders and submits that under revisional jurisdiction the Court cannot interfere with the evidence

as such the instant application deserves to be dismissed.

Heard learned counsel for the petitioner and the learned A.P.P. for the State.

In the instant case the petitioner has been convicted for the offence committed under Sections 279, 304A and 201 of the Indian Penal Code. To

constitute an offence under Section 304A, the most important ingredient is that there should be a rash and negligent driving by the driver which causes

death of the victim. In the instant case nowhere it has been stated that there was a rash and negligent driving of the petitioner. The learned trial court

on the basis of deposition of P.W. â€" 2 came to the conclusion that the two eye-witnesses who were the labourers deposed that the driver took away

the deceased-Samiruddin on the pretext of providing better treatment.

I am afraid that this finding cannot be the basis for conviction under Sections 304 (A) and 279 of the Indian Penal Code. Not even a single prosecution

witness has stated that there was a rash and negligent driving of the petitioner. Rather as per the First Information Report it has been stated that the

informant has been informed by the eye-witnesses that his nephew Samiruddin fell down from the tractor near “Mednichak Haat†upon a sudden

application of brake by the driver, Sudhir Thakur who was driving the tractor at the relevant time.

Merely because the driver of the tractor took a sudden break does not by itself speaks about any negligence or rashness by him in driving the vehicle.

None of the witnesses examined by the prosecution could give any indication, even approximately with respect to rash driving. It was for the

prosecution to bring on record the materials to establish that the driver of the tractor was rash and negligent so as to attract the charge under Section

304(A) and 279 of the Indian Penal Code. Even the charge under Section 201 IPC has not been proved inasmuch as there is no any direct or

circumstantial evidence to prove that the accused-petitioner had concealed the dead body or he has caused it to disappear.

In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution

and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to

some statutory exceptions. There is no such statutory exception pleaded in the present case.

In view of the aforesaid discussions, I have no hesitation in holding that the conviction has been made only on the basis of mere surmises and

conjecture. In the instant case the prosecution has failed to prove its case beyond all shadow of reasonable doubts so much so that the tractor was not

even seized by the police. Even the police has not taken pain to know about the registration number of the tractor.

As a result, the judgment dated 28.10.2002 passed by the learned 6th Additional District Judge, (Fast Track Court 3), Godda in Criminal Appeal No.

46 of 2000/26 of 2000 and the judgment of conviction and order of sentence dated 29.08.2000 passed by the learned 1st Class Judicial Magistrate,

Godda in G. R. Case No. 224 of 1994 (T. R. No. 308 of 2000) are, hereby, set aside.

The petitioner shall be discharged from the liability of his bail bond. Let the lower court record be sent back to the court concerned forthwith.