Ramnath vs The State Of Maharashtra
2013 Latest Caselaw 239 Bom

                                            (1)


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
              AURANGABAD BENCH, AT AURANGABAD.




                                                                                          
                  Criminal Revision Application No. 186 of 2011




                                                                  
    Ramnath s/o. Yashwant Gholap,
    Age : 35 years,
    Occupation : Driver,




                                                                 
    R/o. Talegaon,
    Taluka & District : Beed.                                        .. Applicant.

                versus




                                               
    The State of Maharashtra,
                          
    Through Police Inspector,
    Police Station, Ashti,
    Taluka : Ashti, District : Beed.                                 .. Respondent.
                         
                                       .......................

                 Mr. S.S. Thombre, Advocate, with
      

                 Mr. S.D. Bade, Advocate, for the applicant.
   



                 Mr. P.N. Muley, Additional Public Prosecutor,
                 for the respondent.

                                       ........................





                                   CORAM : ABHAY M. THIPSAY, J.

                                       Date of reserving the





                                       judgment : 25th October 2013.

                                       Date of pronouncing the
                                       judgment : 29th November 2013.




                                                                  ::: Downloaded on - 23/12/2013 20:31:18 :::
                                        (2)

    JUDGMENT :

1. As record and proceedings have already been called and are

before the Court, by consent of the learned Counsel for the applicant, and

the learned Additional Public Prosecutor for the respondent, heard finally.

2. The applicant was prosecuted on the allegation of having committed offences punishable under Sections 279 of the Indian Penal Code, 304A of the IPC, as also, offences punishable under Sections 184

and 134 of the Motor Vehicles Act, read with Section 177 thereof. The

Judicial Magistrate (First Class), Ashti, after holding a trial, found the applicant guilty of the aforesaid offences and sentenced him as follows :

(i) To suffer rigorous imprisonment for 3 months, and to pay a fine of Rs. 500/-, with respect to the offence punishable under Section 279 of

the IPC;

(ii) To suffer rigorous imprisonment for one year, and to pay a fine of Rs. 1,000/-, with respect to the offence punishable under Section 304A of

the IPC;

(iii) To suffer rigorous imprisonment for 3 months, and to pay a fine of

Rs. 500/-, with respect to the offence punishable under Section 184 of the Motor Vehicles Act;

(iv) To pay a fine of Rs. 100/-, with respect to the offence punishable under Section 134(a)(b), read with Section 177 of the Motor Vehicles

Act.

In default of payment of fine, he was directed to suffer different default sentences.

All the substantive sentences were directed to run concurrently.

3. Aggrieved by the conviction and the sentence imposed upon him, the applicant appealed to the Court of Sessions, but the learned

Sessions Judge, Beed, dismissed the appeal.

It is under these circumstances that, the applicant has approached

this Court by filing the present Revision Application, contending that his conviction is not in accordance with law, and that, the same is, therefore, liable to be quashed and set aside.

4. I have heard Mr. S.S. Thombre, the learned Counsel, with Mr. S.D. Bade, the learned Counsel for the applicant. I have heard Mr. P.N. Muley, the learned Additional Public Prosecutor for the respondent -

State. I have carefully gone through the judgments delivered by both the courts below, and examined the evidence adduced during the trial.

5. The prosecution case before the trial court was that, on 30-8-2001, Advocate Harishchandra Shekde was proceeding from the road going towards Ashti. That, at that time, one tempo came from Kada village in a high speed and gave a dash to Hasishchandra Shekde from behind. The tempo driver did not stop. The vehicle went away in high

speed. Harishchandra Shekde died on the spot, as a result of the injury sustained by him on his head, on account of the impact. Subhash Bade

(PW 1) reported the matter to the Police, pursuant to which, a case in respect of the aforesaid offences was registered against an unknown

driver of an unknown vehicle vide C.R. No. I-98/2001 of Ashti Police Station. In the course of investigation, the applicant came to be arrested,

as the driver of the offending tempo. He was prosecuted, convicted and sentenced, as aforesaid.

6. Ordinarily, an independent re-appraisal of the evidence, to

disturb a finding of fact arrived at, by the trial court, is not to be undertaken in revisional jurisdiction. It would be particularly so, where

there would be a concurrent finding of fact arrived at by two courts. Nevertheless, where the finding has been arrived at without any evidence whatsoever, or on the basis of inadmissible material, or by keeping

relevant and admissible evidence out of consideration, or where the

approach adopted by the trial court and / or the appellate court, in the matter of appreciation of evidence, is perverse and contrary to the well settled principles, or logic, interference with the findings would not only

be justified, but would be essential in the exercise of revisional powers. It is in the background of the aforesaid legal position that, whether the conviction of the applicant, as recorded by the learned Magistrate, and as

upheld by the learned Sessions Judge, is proper, legal and in accordance with law, needs to be determined.

7. A number of contentions have been raised on behalf of the applicant. It is contended that, that the applicant was driving the

offending tempo at the material time, is not at all established. It is contended that, there is absolutely no evidence on this aspect. It is also

contended that, there was no evidence to show that the offending vehicle was being driven in a rash or negligent manner. It is also contended that,

what is said by the supposed eye witnesses in that regard is that, the offending vehicle came 'in a high speed and gave a dash to the deceased

Harishchandra Shekde', and that, mere high speed, by itself, cannot amount to evidence of either rashness and / or negligence.

8. Shri P.N. Muley, the learned Additional Public Prosecutor,

for the State, on the other hand, contended that the judgments delivered by the courts below are proper and legal. According to him, there was no

scope for interfering with the findings arrived at by the trial court and the appellate court, by exercising revisional jurisdiction of this Court.

9. Upon going through the evidence adduced during the trial, I

find that, there was no evidence to show that it was the applicant who was driving the offending vehicle at the material time.

10. It may be recalled that, the prosecution case itself was that, the vehicle in question was not identified at the time when the offences were registered. It is also clear that, the prosecution case itself is that,

the driver of the vehicle had made good his escape after the incident, and consequently, the case came to be registered against an unknown driver of an unknown vehicle. How the applicant came to be arrested as driver of the offending vehicle at the material time, is not at all clear from the evidence.

11. The evidence adduced during trial may be examined in the

context of establishing the identity of the applicant as the driver of the offending vehicle.

12. Totally, seven witnesses were examined during the trial.

Subhash Bade (PW 1), who is the first informant, did not state that, he had seen the driver of the tempo. His evidence reveals that, the incident took place at about 6.10 a.m. on 30-8-2001, and though this witness had

seen the impact, it was not his case that, he had either seen the

registration number of the tempo or the driver. His evidence shows that, after the first information report had been registered on 30-8-2001, he

was again called at the Police Station on 5-9-2001, and that, at that time, a tempo that had been brought to the Police Station, was shown to him. He stated what was the number of the said tempo. According to him, on

the tempo being shown to him by the Police at the Police Station, he

identified the same. He also stated that, he saw the applicant present near the tempo at that time. He has identified the applicant as the driver of the 'said tempo' but it is clear that, the identity of the applicant

established by this witness is 'as the same person who was present at the Police Station on 5-9-2001, by the side of the tempo which was also at the Police Station, at that time'. This witness has not identified the

applicant on the basis of his having seen the driver at the time of the incident. Any doubt about this position can be removed by the admission given by this witness in the cross examination, to the effect that, he had not been knowing either the tempo or its driver, after the incident.

13. The second witness, Balbhim Dhonde (PW 2) is a Panch

witness and in the context of the question of identity of the applicant, his evidence is not relevant.

14. The third witness, Subhash Shekde (PW 3) is the son of

deceased Harishchandra Shekde. He is not an eye witness to the incident. He learnt about the accident from Subhash Bade (PW 1). Thus, his evidence is also not relevant in the context of identity of the

applicant as the driver of the offending vehicle.

15.

In his evidence, Baban Zanje (PW 5) states that, he had seen

one red tempo moving in a high speed. He, however, makes it clear that, he did not know the number of the tempo, and further, as to who was driving the tempo. Thus, his evidence also is not relevant in the context

of the identity of the applicant as the culprit.

16. Bhagwan Garje (PW 6) also clearly states that, though he had seen the tempo, he did not know who was driving the tempo. Thus,

even his evidence also does not assist the prosecution, in any manner, in establishing the identity of the applicant as the culprit.

17. The Investigating Officer, P.S.I., Kashinath Adhe (PW 7), in his evidence, does not say, why and how he had arrested the applicant. As the offender, and even the offending vehicle was unknown, it was expected of the Investigating Officer to have stated in the examination in chief, as to how he laid hand on a particular vehicle i.e. vehicle bearing

registration number MH-23/1457, and on a particular person i.e. the applicant as the driver thereof. However, there is absolutely no such

evidence.

18. The only witness who has identified the applicant as the person who was driving the tempo is, Milind Dushi (PW 4). According

to him, he is an eye witness to the incident. He has stated in his evidence that "the accused before the court was driving the tempo". In the cross examination, he admitted that there was 'slight darkness'. Admittedly,

though the deceased was known to him, this witness neither took him to

the hospital nor reported the matter to the Police. His statement was recorded on 3-9-2001 i.e. after about four days. According to him, the

Police came to him and thereafter he gave his statement to them.

19. The question is, whether on the assertion of this witness

that, 'the accused was driving the tempo', it can be assumed that this

witness had seen the driver at the time of incident and was able to identify the accused from his memory, as the same driver, when he was shown the accused in the court. Admittedly, the tempo had not been

stopped at all after the accident. According to this witness, the tempo was being driven in a high speed of about 100 Kms. per hour. Interestingly, this witness does not claim that he had seen the driver of

the offending vehicle at the time of the accident. In the facts and circumstances of the case, and considering the entire evidence adduced, it is not possible to accept that, this witness had seen the driver of the offending vehicle at the time of the incident, and the assertion made by him in the court, cannot be considered as an assertion that he had seen

the driver at the time of the incident, and that by remembering his features he was identifying him in the court.

20. It is clear from the evidence on record that, after the

incident, efforts were being made to trace the offending vehicle. Even the number of the vehicle was not available to the investigating agency

and could not be stated by any of the witnesses. In such a case, how the investigation proceeded, and how the applicant came to be suspected and subsequently charged, would be of extreme relevance. It is clear that, in

the course of investigation, first the identity of the tempo as the

offending vehicle was revealed to the investigating agency, and it is thereafter that, the identity of the applicant as the driver thereof was

revealed to them. The manner in which the identity of the tempo was ascertained, and the manner in which the identity of the applicant was ascertained, would have been the most relevant and material evidence

which has been held back by the prosecution for reasons which could not

be explained by the learned Additional Public Prosecutor.

It is nobody's case - much less there is any evidence to show - that,

the applicant is the owner of the tempo No. MH-23/1457, which said to be the offending vehicle. On the contrary, in the cross examination of the Investigating Officer, Kashinath Adhe (PW 7), he stated that he did

not record the statement of the owner of the vehicle and had the audacity to claim that, he did not find it necessary. When the driver had made good his escape after the incident, the statement of the owner of the vehicle - believed to be offending vehicle - would have been most material, and not recording his statement in the course of investigation, is

contrary to common sense and logic. In the absence of evidence in that regard, the picture that emerges is, somehow a tempo was picked up as

the offending tempo, and somehow a person was picked up as its driver at the material time. The question is, even if assuming that, such person

is subsequently stated to be the driver, by a person claiming to be an eye witness, what would be the worth of such a claim and how far it can be

believed.

21. It is clear from the evidence of the prosecution itself that,

after his apprehension, the tempo and the applicant were shown to the

witnesses, who had earlier not even claimed that, they had seen the driver. It is well settled that, even where the witnesses claim to have

seen the offender, the identification of a person as the offender, made by them, on such person being shown to them at the Police Station, is worthless. It is worse than the identification that would be made by them

for the first time in the court. It is because, when they would later

identify that person as the culprit in the court, they would be actually identifying the person whom they had seen at the Police Station.

22. In this case, not explaining the connection of the applicant with the accident in question, and the manner in which it was revealed during investigation, is fatal to the case of the prosecution. When there

was no proper light at the time of the incident, and when none of the other eye witnesses had seen the driver of the offending vehicle, assertion made my Milind Dushi (PW 4), whose statement was recorded 4 days after the incident, that, the applicant was driving the tempo, cannot be construed as an assertion that, he had seen the applicant

driving the tempo at the time of the incident. It is clear from the evidence that, nobody had seen the driver of the tempo as, according to

the prosecution case itself, the tempo came in a high speed, dashed the victim, did not stop and went away. The driver did not get down at all

after the incident. The witnesses even could not note the registration number of the tempo.

23. I have examined the judgment delivered by the Magistrate, and the learned Sessions Judge, to see how they have arrived at the

conclusion that, the applicant was the driver of the offending vehicle.

Though the identity of the applicant as the driver was specifically disputed, the learned Magistrate while framing points for determination,

did not frame this point for determination separately. He framed a composite point for determination, as to 'whether the applicant at the given time and place drove a given vehicle rashly and / or negligently,

etc.' This renders the necessity of framing points for determination

meaningless. By framing a point in this complex manner, the discussion can take a round about way and can be shifted from the identity of the driver, to the manner in which the vehicle was being driven. Any way,

the Magistrate observed that, the identity of the applicant as the driver was established from the evidence of Subhash Bade (PW 1) and Milind Dushi (PW 4). The discussion that follows in that regard is totally

irrelevant, and this is what the Magistrate has observed :

" It is pertinent to note that, on perusal of complaint Exhibit 20, the complainant has narrated the incident

in detail. In his additional statement recorded on 5-9-2001, he has stated

that he was called by Police in Police Station and the tempo was present

there. Said tempo was the same vehicle involved in the accident. "

Even if, that the use of the FIR - and even the statement recorded during investigation - has been made as substantive evidence is ignored,

still, how this will be 'pertinent', in the context of the identity of the applicant, is difficult to understand. As a matter of fact, the identity of

the vehicle was also not established by or through this witness and the claim about the identity, as made by the witness was based on what the

Police had told this witness; but assuming that the witness had identified the tempo as the very vehicle involved in the incident, still, there being

no evidence showing any connection of the applicant with the said vehicle, how that is felt to be relevant by the Magistrate in establishing

the identity of the applicant as the culprit, is beyond comprehension. The Magistrate further observed as follows :

" It appears that during the course of investigation, the Investigating Officer arrested the accused and then

the witnesses were called for identification. That time, the witnesses identified the accused as the driver of vehicle involved in an accident. "

It did not occur to the learned Magistrate that, why and under what circumstances, the Investigating Officer arrested the applicant - and why

not anybody else - was required to be explained by the Investigating Officer. It also did not occur to the Magistrate that, if reliance was to be

placed on the identification by the witnesses, without disclosing how the applicant came to be arrested, then the Investigating Officer ought to

have held a test identification parade. It also did not occur to the Magistrate that, the witnesses had not stated that they had seen the driver of the offending vehicle - which even otherwise was not the case of the

prosecution at all - and, therefore, the identification by them, after the

applicant was shown to them by the Police, was meaningless.

Lastly, what was overlooked by the Magistrate is that, only Milind Dushi (PW 4) had made a vague statement about the identity of the applicant as the driver, but the first informant - Subhash Bade (PW 1) has

never identified the applicant as the driver. What he said in his evidence

is that, he was identifying the applicant as the person who was present at the Police Station when the tempo had been recovered. Apparently, since Milind Dushi (PW 4) never claimed that, he had seen the driver of the

vehicle at the time of incident, he was also making the statement of the identity of the applicant as the driver of offending vehicle, on the basis that the applicant was seen by him at the Police Station; but since the

evidence in that regard was vague, even if the benefit of such vagueness is (wrongly) given to the prosecution and not the accused and it is treated that the witness indeed claimed that, he had identified the accused as the driver, such identification on the applicant being shown to him at the Police Station, was thoroughly worthless.

24. The reasoning of the learned Sessions Judge is rather worse.

While dealing with the contention that, the identity of the applicant as the driver of the offending tempo was not established, the learned

Sessions Judge observed, as follows :

" However, this contention cannot be accepted in as much as there are 2/3 eye witnesses who are examined in this case.

All of them have stated that, they have seen the accused driving the tempo in

rash and negligent manner. Moreover, the accused had identified in the Police

Station by the complainant and another witnesses as well as accused is also identified before the Court as a person

driving the tempo at the relevant time."

These observations are unfortunate. Except Milind Dushi (PW 4), the other eye witnesses have identified the applicant 'as the person who

was seen by them, at the Police Station, and introduced as the driver of the vehicle that had been brought to the Police Station by the Police'. The learned Sessions Judge has, clearly, read something in the evidence,

which actually is not there.

25. There is also no evidence on the point, which would be necessary to establish that the driver of the offending vehicle was driving the same in a rash or negligent manner. However, since the identity of

the applicant itself is not established, I do not find it necessary to discuss this aspect of the matter.

26. The conclusion of the trial court, as also, of the appellate

court, about the identity of the applicant, has been arrived at without any evidence. The approach in appreciating the evidence adopted by them is

perverse, and it was not felt necessary at all, by any of them, to know as to how and in what manner the applicant was traced, in the course of investigation, as the culprit. None of them considered the well settled

principles - crystallized as legal principles - with respect to the value of

the identification of an accused as the culprit made by a witness on such accused being shown to him at the Police Station. None of them

addressed to the question, as to whether, when there was insufficient light and when the tempo, after impact, ran away in a high speed, whether the possibility of Milind Dushi (PW 4) having seen the driver,

so as to be capable of identifying him existed, and that too when Milind

Dushi (PW 4) never claimed that he had seen the driver of the vehicle at the time of incident.

27. The order of conviction of the applicant, as recorded by the trial court, and upheld by the appellate court, is patently erroneous and not in accordance with law. The findings about the guilt of the applicant

have been arrived at without any evidence. The impugned judgments and orders, therefore, need to be set aside, in the interest of justice.

28. The Revision Application is allowed in terms of prayer clause "C".

The applicant stands acquitted. His bail bonds are discharged.

( ABHAY M. THIPSAY ) JUDGE

.........................

bgp/crirevn186.11