Bombay High Court
Hanumant Yeshwant Pawar vs State Of Maharashtra on 25 April, 2016
Bench: A.I.S. Cheema
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.511 OF 2003
The State of Maharashtra,
Through The Public Prosecutor,
High Court, Bench at
Aurangabad.
...APPELLANT
VERSUS
Rajendra s/o Namdeo Shinde,
Age-32 years, Occu:Service,
Resident Of-Jail Quarters,
Harsool, Aurangabad.
...RESPONDENT
(Ori. Accused)
...
Mr. S.M. Ganachari, A.P.P. for Appellant.
Mr. Ajay S. Deshpande Advocate for Respondent.
...
WITH
CRIMINAL REVISION APPLICATION NO.333 OF 2003
1) Hanumant Yeshwant Pawar,
Age-49 years, Occu:Service,
Resident Of-Jail Quarters, Central Jail,
Harsool, Aurangabad,
(Since deceased, through
Legal Representatives) (Ori. Complainant)
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1A) Smt. Indubai widow of Hanumanta Pawar,
Age-50 years, Occu:Household,
Resident of-Nagapur, Tq-Kannad,
Dist-Aurangabad,
1B) Deepak s/o Hanumant Pawar,
Age-35 years, Occu:Agriculture &
Business, Resident of-Nagapur,
Tq-Kannad, Dist-Aurangabad,
1C) Suresh Hanumant Pawar,
Age-25 years, Occu:Agriculture &
Business, Resident of-Nagapur,
Tq-Kannad, Dist-Aurangabad.
...APPLICANTS
VERSUS
Rajendra Namdeo Shinde,
Age-33 years, Occu:Service,
Resident Of-Jail Quarters,
Harsool, Aurangabad.
...RESPONDENT
(Ori. Accused)
...
Mrs. A. N. Ansari Advocate for Applicants.
Mr. Ajay S. Deshpande Advocate for Respondent.
...
CORAM: A.I.S. CHEEMA, J.
DATE OF RESERVING JUDGMENT : 12TH APRIL,2016
DATE OF PRONOUNCING JUDGMENT: 25TH APRIL, 2016
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JUDGMENT :
1. Respondent - original accused Rajendra
Namdeo Shinde was convicted by VIIth J.M.F.C.
Aurangabad in Regular Criminal Case No.1332 of
2001 on 11th January 2002 under Section 304-A of
the Indian Penal Code, 1860 ("I.P.C." in brief)
and was sentenced to suffer R.I. for two years and
to pay fine of Rs.2000/-. In default of payment of
fine, he was directed to suffer R.I. for further
three months. Accused Rajendra Shinde carried
Criminal Appeal No.2 of 2002 before Additional
Sessions Judge, Aurangabad and in the Appeal he
came to be acquitted by Judgment and Order dated
6th March 2003. Thus, the State has filed this
Criminal Appeal No.511 of 2003 against acquittal.
The complainant Hanumant, who lost his daughter in
the incident of rash and negligent driving, filed
the Criminal Revision Application No.333 of 2003
against the orders of the Sessions Court. On his
death, his Legal Representatives have come on
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record.
2. The facts in brief are as under:-
(A). Complainant Hanumant Pawar, on 10th March
2001 at about 4.10 p.m. registered Crime No.54 of
2001 with police station, City Chowk, Aurangabad
against the Respondent Rajendra Shinde (hereafter
referred as "accused"). Complainant reported that
on that day at about 2.15 p.m. he was in his
house. (He resides in the jail quarters at
Harsool.) He informed that he was sleeping in his
house and came to know from children that accident
has taken place. He came outside his house and saw
his wife Indubai (PW-4) sitting with his daughter
Dipali in her lap. When he saw his daughter, she
had bleeding injury near her waist and blood was
also coming out from her nose and mouth. He came
to know from his wife and people assembled that
the accused, who is constable at the jail, had
driven Jeep No. MH-20-W-9502 in high speed and
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dashed against Dipali (hereafter referred as
"victim") and the victim had got injured and was
unconscious. Victim had also injury near hear
stomach. Complainant with the help of one
Akhtarkhan Pathan (PW-6), on Moped M-80, took the
victim to the hospital of one Patel who asked them
to take the victim to Ghati Hospital and they
hired rickshaw and took the victim to Ghati
Hospital, where she was declared brought dead.
Complainant reported that the accused Rajendra was
smelling of liquor and had driven the vehicle
against cycle and dashed against the victim who
had expired.
(B). P.S.I. Kisan Thakare (PW-7), after
registration of the offence, investigated the
matter. He drew the Spot Panchnama (Exhibit 22) on
the same day. The accused was got medically
examined and the medical certificate was brought
on record at Exhibit 24. Statements of witnesses
were recorded. The vehicle was of the jail and the
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same was got examined from R.T.O. The report was
brought on record at Exhibit 30. After
investigation, charge-sheet came to be filed.
3. The trial Court framed charge under
Section 304-A of I.P.C. The accused pleaded not
guilty. His defence in the trial Court was of
complete denial.
4. Evidence of complainant Hanumant was
brought on record as PW-1. He proved the F.I.R.
Exhibit 13. PW-2 Shobhabai Koli, PW-3 Yuvraj
Hazare, and PW-5 Kamalbai Jadhav who were examined
as witnesses, turned hostile. PW-6 Akhtarkhan
Pathan who admits to have helped the complainant
to carry the victim to the hospital, also turned
hostile as regards witnessing the incident. On
record, important evidence is of PW-4 Indubai
Pawar, the mother of victim. In the trial Court,
the Inquest Panchnama (Exhibit 17) and Postmortem
Report (Exhibit 18) were admitted by the accused.
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5. The trial Court took note of the above
evidence. Trial Court referred to the evidence of
complainant Hanumant, who deposed as per the
contents of the complaint, referred above. Trial
Court also discussed evidence of PW-4 Indubai.
Trial Court recorded that PW-4 Indubai is mother
of deceased Dipali. It appears that Dipali was
about 11 years old at the time of incident. Trial
Court recorded that PW-4 Indubai is eye witness of
the incident which occurred on the day of
Dhuli- Vandan in 2001 at about 1.30 p.m. in front
of her neighbouring quarter. Discussing the
evidence of PW-4 Indubai, the trial Court recorded
that the accused was residing in the jail quarters
at Harsool in the same lane where the complainant
was residing and there was no record that there
was any enmity between the complainant as well as
Indubai with accused. Trial Court found that there
was no reason as to why Indubai should depose
against the accused. Trial Court found the witness
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to be natural and trustworthy and observed that a
woman would not speak lie relating to death of her
daughter who died before her own eyes. The trial
Court found corroboration in the evidence of
complainant husband who, when he came out of the
house, saw PW-4 Indubai with injured Dipali in her
lap. Trial Court discussed the Spot Panchnama
Exhibit 22 proved by P.S.I. Thakare, which
Panchnama recorded that although there were no
brake marks on the spot, there were marks of the
vehicle giving dash to the wall of Quarter No.86
in front of which the incident had occurred. The
vehicle was not found on the spot and the trial
Court noted that possibly the accused took away
the same. The observations of the trial Court are
that the spot where the accident occurred was not
public road and was situated within the premises
of the Central Jail. Trial Court concluded that
the vehicle was out of control of the accused and
dashed against innocent girl Dipali who was
standing in front of Quarter No.86, and then the
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vehicle colluded with wall of Quarter No.86. It
discarded the defence that Dipali fell from cycle
and got injured and died because of the same. For
such reasons, the trial Court found the accused
guilty and convicted him, as mentioned above.
6. When the matter was carried to the Court
of Sessions, the Sessions Court, after recording
points for consideration, recorded that the trial
Court has relied on the evidence of PW-4 Indubai
and "there is no error in the appreciation of the
trial Court". However, it went on to add that
Indubai was unable to tell the name of the person
to whom the neighbouring quarter was allotted.
Sessions Court referred to the evidence of Indubai
regarding accused driving the vehicle and giving
dash to the victim. It went on to add that "from
this version there is impression that, this
witness might have seen the incident. But, in her
whole testimony she does not state that, she was
present at the time of incident". Sessions Court
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further reasoned out that PW-4 Indubai stated that
victim came in front of wheel of the Jeep and her
neighbour Sangita took out Dipali from that wheel.
According to Sessions Court, if PW-4 Indubai was
present, she should have rushed to save her
daughter. Then the Sessions Court found further
fault with the investigation that the said Sangita
was not examined and as to why Sangita and PW-4
Indubai had not caught hold of the accused. The
Sessions Court, while referring to the evidence of
investigating officer P.S.I. Thakare recorded that
he found that the vehicle had dashed to the staff
quarter No.86 and bicycle also was found to have
been crushed and added that "But this is not
incriminating evidence against the accused".
According to the Sessions Court, the P.S.I. had
not recorded the statement of Jail Superintendent
when the vehicle was of the jail. It noted that no
evidence was brought as to in whose charge the
vehicle was or how accused procured it. According
to Sessions Court, only because accused was
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charge-sheeted, does not make him responsible.
Sessions Court also recorded that although it was
stated that blood was coming out from the injuries
of victim, no blood was found on the spot. It was
observed that if the victim was standing on the
Otta, there should have been some damage to the
Otta (platform). According to the Sessions Court,
the spot panchnama did not show measurement and
the cycle was also not seized from the spot. For
such reasons, the Sessions Court reversed the
Judgment of the trial Court and acquitted the
accused.
7. I have heard the learned A.P.P. for
State, learned counsel for the accused as well as
learned counsel for legal representatives of the
original complainant. The counsel for the legal
representatives of the original complainant and
A.P.P. have, both, argued to restore the Judgment
of the trial Court finding fault with the
reasonings of the Sessions Court. They support
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reasons recorded by the Trial Court. According to
them, the evidence of PW-4 Indubai could not have
been discarded by the Sessions Court presuming
that she was not an eye witness. The reasons
recorded by the Sessions Court were not
maintainable. Even if there was no measurement of
the spot, the Sessions Court forgot that it was
only a lane within the jail campus and the Spot
Panchnama did record that the vehicle in the
incident, also dashed against the wall of Quarter
No.86. Reading evidence of PW-4 with the Spot
Panchnama, the conviction recorded by the trial
Court was correct, it is stated.
8. Learned counsel for the accused stated
that this is a case of no eye witness being there.
According to the counsel, the evidence of PW-4
Indubai was rightly discarded by the Sessions
Court. The evidence from jail authorities was not
brought that the accused had unauthorizedly driven
the vehicle. The accused argued that it was
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unnatural that mother would not take out the body
of her child from below the wheel and let somebody
else do it. The counsel for accused wants the
Appeal and Revision to be dismissed.
9. I have gone through the material which
was brought on record and the arguments. Looking
to the fact that the Sessions Court has acquitted
the accused, if I have to interfere, it is
necessary for me to see if the Sessions Court has
wrongly reversed the trial Court Judgment
illegally discarding the evidence.
. It would be appropriate to refer to the
evidence of PW-4 Indubai in some details, as the
dispute almost narrowed down to the question as to
whether or not Indubai was eye witness. PW-4
Indubai has deposed that she was residing in the
quarters of central jail and she knows accused.
The accused was residing in quarter in the same
lane. Accused was serving as constable in the
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central jail. Regarding the incident, Indubai has
deposed that it occurred on Dhuli Vandan of that
year at about 1.30 p.m. in front of quarter of her
neighbour. Her evidence is that:
"My Daughter Dipali was standing on the
Ota of my adjoining quarter with bicycle.
The accused drove jail jeep in speed and
gave dash to my daughter Dipali. Dipali
came under the front wheel of the jeep.
My neighbourer Sangita Wagh taken out
Dipali from the wheel of the jeep and
gave me."
. Indubai further deposed that when the
neighbour gave Dipali in her hand, blood was
oozing from mouth and nose of Dipali and she had
become unconscious. PW-4 Indubai is corroborated
by her husband PW-1 Hanumant, who has deposed that
he came to know from the children about the
incident and when he came out, he saw the victim
in the lap of her mother and he took the victim to
the hospital. Indubai has also deposed that her
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husband came out and took Dipali to hospital.
. Now, if the cross-examination of PW-4
Indubai regarding incident is perused, she stated
that she did not know name of the neighbour where
Dipali was standing. She denied the suggestion
that Dipali was playing with the bicycle and fell
down on stone and got injured. She denied the
suggestion that she was deposing falsely that
accused drove jeep in speed and gave dash to
Dipali. She further denied the suggestion that
her neighbour Sangita had not taken out Dipali
from below the wheel of the jeep and gave to her.
The accused suggested that he was not driving the
jeep. Even this suggestion was denied. She further
denied that she was deposing at the instance of
her husband. These are the suggestions which were
given to Indubai regarding her evidence of the
incident. There is not a single word that she was
not witness of the incident or that she had heard
and on that basis she has given evidence.
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10. Evidence of PW-4 Indubai was recorded by
the trial Court which was the best judge to see
the demeanour of the witness and what she was
deposing. The Sessions Court accepted that the
appreciation of the evidence of the trial Court
was correct and there was no error. The trial
Court in its Judgment, has also clearly recorded
that PW-4 Indubai was eye witness to the incident.
The incident occurred in the same lane where
Indubai was residing and in front of quarter of
her neighbour presence of Indubai cannot be
doubted. Inspite of all this, the Sessions Court,
after referring to the evidence of Indubai,
appears to have recorded without basis that, the
evidence gives "impression" that the witness
"might have seen" the incident. The Sessions Court
wrongly kept searching words from the mouth of
witness to claim that she was "present" at the
time of incident. Sessions Court wrongly discarded
the evidence of Indubai on the basis that, why
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Indubai herself did not take out the victim from
below the wheel of the Jeep and allowed Sangita to
do so. There is no straight jacket formula as to
how a mother would react if she sees her minor
daughter getting entangled in an incident like
this. If she gets shocked by the incident and a
nearby person reacts by picking up the injured and
giving the child to the mother, I do not find
anything surprising in such evidence. The
reasonings recorded by the Sessions Court are
clearly perverse. This is like doubting for the
sake of doubting. I agree with the trial Court
that Indubai was eye witness of the incident and
she had seen the incident.
11. The incident occurred at about 2.15 p.m.
and the victim was rushed to some private doctor
first and then to Ghati hospital and when the
victim was declared as brought dead, PW-1 Hanumant
almost immediately filed the F.I.R. Exhibit 13 at
4.10 p.m. recording the facts and also naming the
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accused. He also further recorded in the complaint
that the accused was smelling of liquor. In
evidence, however, PW-1 Hanumant has not deposed
that accused was smelling of liquor. The evidence
of Investigating Officer brought on record the
medical certificate Exhibit 24, which recorded
that accused was examined on the same day at about
9.00 p.m. and he was smelling of liquor but was
not under influence of liquor. Although this
document was marked exhibit in the trial Court and
the accused did not object, but I would prefer to
ignore it in the absence of evidence of doctor. I
ignore part of the F.I.R. mentioning accused was
smelling of liquor. But rest of the F.I.R. is
proved. The F.I.R. which was almost immediately
filed, does directly link the accused with the
incident. The Sessions Court could not have held
in favour of the accused by observing that only
because charge-sheet is filed, the accused should
not be presumed to be driver. There is evidence of
PW-4 Indubai, an eye witness of the incident and
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immediate F.I.R. naming the accused and this
evidence was rightly considered by the trial Court
and wrongly discarded by the Sessions Court.
12. Coming to the spot, the Investigating
Officer P.S.I. Thakare has proved the document at
Exhibit 22. The P.S.I. was acting in official
capacity and the Spot Panchnama was recorded on
the same day immediately after the offence was
registered. The Spot Panchnama was recorded at
4.25 p.m. on 10th March 2001. It noted that the
spot was in jail colony in front of House No.86
and 82. Now of the final report form under
Section 173 of Cr.P.C. filed by the Investigating
Officer is perused, it recorded address of the
complainant Hanumant as residing in the jail
colony in House No.82. The F.I.R. also records the
address of complainant at House No.82 of Central
Jail Quarters. This makes it more clear that the
incident occurred just near the house of Indubai
although more exactly in front of House No.86.
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This also makes it clear that the Sessions Court
was not right in presuming that PW-4 Indubai was
not an eye witness. She was a natural witness on
the spot. The Spot Panchnama shows that it was a
road going East-West and there were no brake marks
of the vehicle, however the wall of the house
No.86 to the South bore marks of dash being given
and the vehicle had gone over the cycle which had
got crushed. It recorded that ring and mud-guard
of the cycle had been crushed. It is surprising to
find the Sessions Court referring to this evidence
and then declaring that, this was not
incriminating evidence against the accused. Only
because the P.S.I. did not seize the cycle from
the spot, such evidence could not have been
ignored. Although it would have been appropriate
for the Investigating Officer to record
measurement of the width of the said road, that by
itself does not mean that the accused can be
acquitted on such basis. Although in Spot
Panchnama P.S.I. referred the spot to be road
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going East-West, it cannot be forgotten that
witnesses have referred to the spot to be a lane.
PW-4 Indubai has clearly deposed that the accused
was residing in the quarter "in our lane". The
accused did not challenge the evidence that it was
not a mere lane. Accident report form Exhibit 30
recorded that the right side mud-guard of the
vehicle had bent. If the house No.86 was to the
South and the vehicle had the mud-guard bent on
its right, it appears that the vehicle was moving
from West to East and after the incident it dashed
against the wall of House No.86.
13. The observation of the Sessions Court
that blood was not found on the spot is something
which should weigh in favour of the accused, is
also not maintainable. The facts show that the
victim was almost immediately picked up from near
the wheel of the Jeep and the blood was "oozing"
from the nose and ears of the victim. A difference
is required to be made between blood oozing and
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blood flowing. Victim was also injured near her
waist. Only because blood did not fall on the
ground, does not mean that the evidence of PW-4
Indubai could be ignored.
14. Similarly, there is no substance in the
argument of the counsel for the accused and the
reasonings of the Sessions Court that evidence
from the records of jail authorities should have
been brought as to who was in-charge of the
vehicle and how accused took it etc. The accused
may or may not have been in-charge of the vehicle
but if he drove it and was seen by PW-4 Indubai
driving the vehicle and giving dash to her
daughter regarding which immediately F.I.R. has
been filed, the evidence cannot be discarded only
because record from jail authorities was not
called as to who was official driver on the
vehicle.
15. For above reasons, I do not find that the
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Sessions Court could have upset the well reasoned
Judgment of the trial Court. Reasonings recorded
by the trial Court and analysis of the evidence
appears to be correct. The reasons recorded by the
Sessions Court are perverse and it wrongly
discarded the evidence branding PW-4 Indubai as
not an eye witness. The Sessions Court got
misguided on such basis and the Judgment of the
Sessions Court cannot be maintained.
16. For the above reasons, I pass following
Order:
O R D E R
(I) Criminal Appeal No.511 of 2003 is
allowed. The impugned Judgment of the
Sessions Court, Aurangabad in Criminal
Appeal No.2 of 2002 dated 6th March
2003 is quashed and set aside.
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(II) The Judgment of conviction and
sentence as passed by the trial Court
in Regular Criminal Case No.1332 of
2001, dated 11th January 2002 is
restored.
(III) The bail bonds of the
Respondent-accused are cancelled. The
Respondent-accused - Rajendra Namdeo
Shinde shall surrender before the
trial Court immediately and suffer the
sentence. The trial Court shall ensure
compliance of conviction and sentence
passed by it.
(IV) The Criminal Appeal stands
disposed of, accordingly.
(V) The Criminal Revision Application
No.333 of 2003 is also disposed of in
terms of the order passed in Criminal
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Appeal. As such no separate orders are
necessary.
[A.I.S. CHEEMA, J.]
asb/APR16
