209.01crapl
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR
CRIMINAL APPEAL NO.209 OF 2001
The State of Maharashtra
through P.S.O. Ural, Tq. Balapur,
Dist. Akola. ..APPELLANT
VERSUS
Nandu Pandurang Akolkar,
age about 31 years, Occ: Agri.,
& businessman, r/o Malegaon (Bazar),
Tq. Telhara, distt. Akola.
(P.S. Telhara). ..RESPONDENT
Smt. A.R. Deshpande, Addl. Public Prosecutor for
appellant;
Mr S.V. Sohoni, Advocate for respondent
CORAM : N.W. SAMBRE, J.
DATE : 14th MARCH, 2017 ORAL JUDGMENT :
Heard learned Additional Public Prosecutor.
2. PW-9 Sanjay Dhumal, Investigating Officer, attached to the Police Station, Ural, on 16th August, 1999 received A.D. intimation under head 'Zero' from City Kotwali, Police Station, Akola. Said A.D. was registered by Police Head Constable ::: Uploaded on - 04/04/2017 ::: Downloaded on - 27/08/2017 19:41:37 ::: 209.01crapl (2) Bhujangrao, B.No. 905 of Police Station, City Kotwali, Akola on 15th August, 1999.
3. Deceased Pramod Patkar met with an accident while riding a bicycle along with pillion rider. His bicycle was given dash from opposite side by Hero Honda motor cycle which is driven by present appellant, bearing Registration No. MH-30/A-6733 in rash and negligent manner.
4. In view of statement of complainant Sarangdhar Patkar, father of deceased Pramod, crime came to be registered for offence punishable under Section 304-A of the Indian Penal Code being Crime No. 69 of 1999 on 16th August, 1999. The investigation in the matter was completed by the said Investigating Officer - PW-9 and charge sheet came to be filed.
5. Charge came to be framed against the accused on 3rd April, 2000 for the offence punishable under Section 304-A of the Indian Penal Code.
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6. Since the accused pleaded not guilty, trial in the matter commenced. Of the total witnesses, prosecution has examined in all nine witnesses so as to support its case.
7. The defence has not examined any witness.
8. Learned Magistrate, vide judgment and order dated 24th April, 2001 acquitted the accused of the offence with which he is charged. As such, criminal appeal in question.
9. Learned Additional Public Prosecutor, while trying to make out a case for reversing judgment, would urge that judgment of the trial Court suffers from infirmities, particularly learned Magistrate has not discussed and analyzed the evidence of the witnesses in detail so as to properly infer acquittal of the accused. According to her, though PW-5 and PW-6, panch witnesses to the spot panchnama, have not supported the case of prosecution, still spot panchnama could have been ::: Uploaded on - 04/04/2017 ::: Downloaded on - 27/08/2017 19:41:37 ::: 209.01crapl (4) considered to have been proved from the testimony of the Investigating Officer. According to her, plan of spot of incident was drawn and looking to the very spot of incident, it could easily be inferred that the respondent-accused was driving motor cycle in rash and negligent manner causing death of Pramod. She would submit that eye witness to the incident PW-1 in categorical terms has stated about the rash and negligent driving of motor cycle by the accused. In addition, she would also rely upon the testimony of PW-2 Vilas and PW-9 Investigating Officer Sanjay.
9. Per contra, learned Counsel for the respondent-accused would submit that PW-5 and PW-6, who are the panch witnesses to the incident, have not supported the case of prosecution thereby proving spot panchnama and spot of incident. He would then urge that even bicycle and motor cycle involved in the crime in question were not seized, so also officer who has drawn the spot panchnama was not examined. In addition, submission is made that the incident is 17 years old and the Court ::: Uploaded on - 04/04/2017 ::: Downloaded on - 27/08/2017 19:41:37 ::: 209.01crapl (5) should be slow in interfering with the order of acquittal of the accused, particularly because of pendency of the appeal of the State for long time. According to him, the appeal deserves to be dismissed.
10. Having considered submissions of the parties and having perused original record, it is required to be noted that on 14th August, 1999, the accident in question took place. When the deceased was riding bicycle along with PW-1 Atul Talokar, present respondent-accused claimed to have riding motor cycle on wrong side of the road.
11. It is then required to be noted that spot panchnama came to be proved by PW-8 Narayan Sable, Police Head Constable. From the said spot panchnama, the place of accident is not specifically inferred, as what has been pointed out is the accident affected spot and not exact spot of incident where the accident took place. PW-9 Investigating Officer has admittedly neither seized bicycle nor motor cycle, which were involved in the ::: Uploaded on - 04/04/2017 ::: Downloaded on - 27/08/2017 19:41:37 ::: 209.01crapl (6) accident in question. Apart from above, it is required to be noted that the Investigating Officer PW-9, in stead of visiting the spot before carrying out detail investigation has drawn spot panchnama based on Exhibit-20. Non-identification of the spot by the person who has drawn spot panchnama i.e. PW-9, investigation continued by the Investigating Officer based on said spot panchnama has misdirected itself. Apart from above, it is required to be noted that PW-2 was riding bicycle ahead of bicycle of the deceased Pramod. As such, from the evidence as is available of the said witness, it cannot be inferred that he is eye witness to the incident. At the most, it could be inferred that he was a eye witness to the incident of making statement that accused was riding motor cycle on wrong side of the road.
12. In my opinion, having regard to the fact that deceased was driving bicycle and PW-1 was pillion rider, there were chances of loss of balance appears to be highly probable, which is rightly considered and inferred by the learned ::: Uploaded on - 04/04/2017 ::: Downloaded on - 27/08/2017 19:41:37 ::: 209.01crapl (7) Magistrate. It has also come on record that while riding bicycle by deceased along with PW-1, PW-2 and other persons were also riding bicycle in the group of four bicycles.
In view thereof, probability of happening of the incident of accident because of group driving of bicycles cannot be ruled out.
13. It is then to be noted that though it is claimed by PW-9 that he has issued requisition to Tahsildar requesting for drawing panchnama, however, neither such requisition nor any spot panchnama or map in question is placed on record, is proved by adducing appropriate evidence.
14. In the aforesaid background, in my opinion, the judgment and order of acquittal as is recorded by learned Magistrate, does not call for any interference. Before parting, it is worth to infer that present one is fit case wherein acquittal of the accused is based on faulty investigation carried out by the Investigating ::: Uploaded on - 04/04/2017 ::: Downloaded on - 27/08/2017 19:41:37 ::: 209.01crapl (8) Officer.
15. In view of above, the appeal preferred by the State stands dismissed.
(N.W. SAMBRE, J.) Tupe ::: Uploaded on - 04/04/2017 ::: Downloaded on - 27/08/2017 19:41:37 :::