Shri Madhukar Gaurishankar Swami vs State Of Maharashtra
2006 Latest Caselaw 1244 Bom

JUDGMENT

V.M. Kanade, J.

1. Heard learned Counsel for the applicant and learned Public Prosecutor for the State.

2. The applicant is challenging the Judgment and Order dated 18/03/1997 passed by the Additional Sessions Judge, Pune in Cri.Appeal No. 308/1993, arising out of Judgment and Order dated 22/09/1993 passed by the Judicial Magistrate First Class, Khed, in Criminal Case No. 482/1987 whereby the applicant was convicted by the both the lower courts for an offence punishable Under Section 279 of IPC and sentenced to suffer S.I. for three months and to pay fine of Rs. 100/-and in default to suffer S.I. for one week. He was further convicted for the offence punishable Under Section 304(A) of IPC and sentenced to suffer S.I. for six months and to pay fine of Rs. 500/-and in default to suffer S.I. for one month.

3. Brief facts which are relevant for the purpose of deciding this application are as under:

The applicant was driving his vehicle i.e. Truck No. MTF8518 on the Pune-Nashik Highway and when his vehicle came near Varkad locality, a lady got down from another truck which had came from the opposite direction and suddenly crossed road and dashed against applicant's vehicle and crushed to death below rear wheel of the applicant's vehicle. The applicant went to the police station and lodged complainant and informed to police about the accident. Police recorded statement of witnesses and offence of rash and negligent came to be registered against the applicant. Chargesheet was filed against him Under Section 279 and 304(A) of IPC and 116, 78/112 of Motor Vehicle Act. Prosecution examined two eye witnesses and three other witnesses. Both the lower courts convicted the applicant.

4. Learned Counsel for the applicant submitted that both the lower courts erred in holding the present applicant guilty of rash and negligent driving. He submitted that this finding recorded by both the lower courts is not borne out by the record. He submitted that both the eye witnesses firstly have not identified the applicant and have not seen accident as it actually happened. He further submitted that both the lower courts erred in coming to the conclusion that the applicant was driving his vehicle at high speed and secondly, that as a result of rash and negligent driving, accident had taken place. He relied on two judgment of the Supreme Court in the case of M.H. Lokre v. State of Maharashtra reported in 1972 SC 221 and in the case of State of Karnataka v. Satish . He invited my attention to the deposition of two eye witnesses.

5. Learned Public Prosecutor Ms. P.H. Kantharia for the State vehemently opposed the statement made by the learned Counsel for the applicant. She invited my attention to the spot panchanama and submitted that spot panchanama clearly indicated that break marks were found at the distance of 25 feet from the spot of incident. She submitted that this itself clearly indicated that the applicant was driving at the very high speed and vehicle had stopped nearly 25 feet from the spot of incident. She submitted that identity of the applicant was not in question and therefore, though eye witnesses had not identified the applicant either in test identification parade or in the court that did not in any manner could be considered as lacunae in the prosecution case, since the applicant himself had admitted that accident had taken place and gone to the police station to lodge the complaint. She submitted that two eye witnesses clearly deposed about the accident which had taken place and therefore, the fact that the accident had taken place on the spot, in rash and negligent driving by the applicant had been established. She further submitted that fact that the deceased Kamalabai had died on the spot itself demonstrates the manner in which vehicle was driven by the applicant. She further submitted that on the concurrent finding recorded by both the courts below, this Court may not interfere with the finding of conviction recorded by both the lower courts.

6. I have given my anxious consideration to the submissions made by the both the counsels. In the present case, admittedly, the accident had taken place on Pune-Nashik Highway. The applicant was driving his truck from Pune to Nashik. Another truck which was coming from opposite direction on the same highway had stopped near the Varkad locality. On the said highway a lady Kamalabai got down from the said truck and started crossing the highway. The applicant's truck was coming from the opposite direction and she came under the rear wheel of the vehicle and died on the spot. Only two eye witnesses have been examined though on the chargesheet as much as seventeen witnesses have been named. First eye witness i.e. PW-2 Vithal Bhosale who had brought the lady in his truck from Nashik, had stated that a lady passenger got down at Panmala. PW2 stated that the applicant had informed about the accident to him and therefore, they had gone to the police station and given relevant information. Evidence of this witness does not help prosecution case and he has not seen the accident and he is merely deposing that a lady passenger got down from the truck. PW-4 Pramila Sandbhor who is other eye witness, had stated that she had seen the incident and the applicant's vehicle had given dash to deceased Kamalabai and that she had died on the spot. Evidence of both the eye witnesses indicates that they had not deposed about the actual incident taken place and therefore, it will be difficult to rely on the evidence of these two witnesses for the purpose of coming to the conclusion that the applicant was driving the vehicle in rash and negligent manner. In my view, both the lower courts have clearly erred in relying on the evidence of two eye witnesses for the purpose of relying on the finding that accused was driving the vehicle in rash and negligent manner. Apart from this, in my view, ratio of judgment in M.H. Lokre v. State of Maharashtra reported in 1972 SC 221 (Supra) squarely applies to the facts of the present case. Supreme Court in the said judgment has observed that if a person suddenly crosses a road on highway, driver of the vehicle would not be in position to save the accident and therefore, there was no possibility to held driver of the vehicle to be negligent. In the said case also accused was driving his bus on highway and deceased suddenly came in front of vehicle and killed in the accident. In the case of State of Karnataka v. Satish (Supra) Supreme Court has observed that merely because the truck was being driven at a "high speed" that does not disclose that there was negligence or rashness by itself and none of the witnesses examined by the prosecution could give any indication as to what they meant by "high speed" and finding to that effect could have been recorded. Supreme Court in para 4 has observed as under:

4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. 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 the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.

7. In my view, ratio of both the judgments would squarely apply to the facts of the present case. Admittedly, lady was crossing the highway and admittedly, must have suddenly come under the rear wheel of the truck which was being driven by the applicant. Fact that the lady was crushed under the rear wheel will indicate that possibly driver of the vehicle did not get time to save the lady who must have suddenly come under rear wheel of the applicant's vehicle which was coming from opposite direction. It is no doubt that High Court exercises its revisional jurisdiction and does not interfere with the finding of the fact recorded by the lower courts. However, it must be remembered that revisional jurisdiction has been conferred on this Court in order to ensure that no illegality is committed by lower courts either in respect of procedure that is required to be observed and followed or in respect of legality of the order which is passed by the lower courts. In the present case, in my view, there is absolutely no evidence to come to the conclusion that the applicant was driving the vehicle in rash and negligent manner. It is duty of the prosecution to establish this fact by bringing cogent evidence on record. No explanation has been offered by the Investigating Officer as to why other witnesses who were named in the charghesheet were not examined, particularly when two eye witnesses examined by the prosecution, have not given any indication even approximately as to how accident had taken place and who was in fact responsible for the death of the lady.

8. Under these facts and circumstances, in my view, criminal revision application is allowed in terms of prayer Clause (a). Judgment and Order dated 18/03/1997 passed by the Additional Sessions Judge, Pune in Cri.Appeal No. 308/1993, arising out of Judgment and Order dated 22/09/1993 passed by the Judicial Magistrate First Class, Khed, in Criminal Case No. 482/1987 is quashed and set aside and the applicant is acquitted in Criminal Case No. 482/1987.

Criminal revision application is allowed in the above terms.