The State Of Maharashtra vs Uttam Vasant Mane
2016 Latest Caselaw 1794 Bom

                                                                                    apeal71-99

    sas
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                    
                             CRIMINAL APPELLATE JURISDICTION

                               CRIMINAL APPEAL NO.71 OF 1999




                                                            
          The State of Maharashtra                                        ..Appellant.
                          V/s.




                                                           
          Uttam Vasant Mane,
          Age: 23 years, R/o. Visapur,
          Taluka Tasgaon, District Sangli                                 ..Respondent.




                                               
          Mrs.S.V.Sonawane, APP for appellant-State.
                                    
          Mr.S.P. Thorat for respondent.
                                   
                                              CORAM :      A.M.BADAR, J.

                                              DATED    :   25TH APRIL, 2016
            


          ORAL JUDGMENT
         

1. This is an appeal filed by the State challenging the

judgment and order passed by the learned J.M.F.C., Tasgaon,

District Sangli in Summary Criminal Case No.219/1996

decided on 21st September, 1998, thereby acquitting the

accused for offences punishable under section 304A of the

Indian Penal, 1860 and section 184 of the Motor Vehicles Act,

1988.

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2. Facts in brief leading to the institution of the

present case can be summarized as under:-

(a) PW1 Shankar Ekanath Patil is the maternal grand-

father of deceased Banti @ Sadhana Sankpal. He set the

criminal law in motion on 28th February, 1996 alleging that by

rash and negligent driving of the jeep bearing registration

No.MH-10/C-366, the respondent / accused caused the death

of said Banti @ Sadhana Sankap, a child, aged about 1½

years.

(b) According to the prosecution case, the daughter of

informant Shankar Patil came to his house for the purpose of

delivery. She was accompanied by her children. On 28 th

February, 1996 on of her child namely, Banti was playing in

the vicinity of the house of her maternal grand-father Shankar

Patil (PW1). At that time, a jeep bearing registration No.MH-

10/C-366 driven by respondent-accused came in a rash and

negligent manner from the side of Turuchi village and gave

dash to the Banti Sankpal causing her instantaneous death.

The accident was disclosed to informant Shankar Patil by one

Jaywant Patil and after visiting the spot, informant PW1 Shivaji

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Patil lodged report of the accident with police station, Tasgaon

resulting in registration of the Crime bearing No.43/1996

against the respondent / accused. The dead body of Banti

was then sent for autopsy. Panchanama of the spot of incident

was recorded. Statements of witnesses came to be recorded

and on completion of routine investigation, charge-sheet for

the offences punishable under section 304A of the Indian

Penal Code, 1860 and 184 of the Motor Vehicles Act, 1988

came to be filed. ig Accordingly, Summary Case bearing

No.219/2016 came to be registered.

(c) Particulars of the offence came to be explained to

the accused and he pleaded not guilty and claimed to be

tried.

(d) In order to bring home the guilt to the accused, the

prosecution has examined as many as eight witnesses.

Informant Shankar Ekanath Patil was examined as PW1 at

Exhibit-17. The F.I.R. lodged by him is at Exhibit-18. Vasant

Anant Joshit was examined as PW2 at Exhibit-19. He visited

the spot soon after the accident. Babasaheb Maruti Patil was

examined as PW3 at Exhibit-20. He is a panch witness to the

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inquest panchanama and spot panchanama. Dr.Mahesh

Sadashiv Welnenkar, the autopsy surgeon is examined as PW4

at Exhibit-25. The post mortem report is at Exhibit-26. Sanjay

Pundlikrao Rawal, Inspector of motor vehicles is examined as

PW5 at Exhibit-19. He has examined the jeep alleged involved

in the accident. Shakil Shamshuddin Mulla, an eye witness to

the accident is examined as PW6 at Exhibit-32. Baburao

Mahadeo Sankpal, paternal grand-father of deceased Banti,

who also claims to be an eye witness is examined as PW7 at

Exhibit-34. PW8 Vishwajit Narayan Bulbule is the Investigating

Officer of the crime in question.

(e) After hearing the parties, the learned J.M.F.C.

Tasgaon by the impugned judgment and order dated 21 st

September, 1998 was pleased to acquit the respondent /

accused for offences punishable under section 304A of the

Indian Penal Code and section 184 of the Motor Vehicles Act

by granting benefit of doubt to him.

3. Heard Mrs.Sonawane, the learned Additional Public

Prosecutor appearing for the State. She vehemently argued

that evidence of PW6 Shakil Mulla and PW7 Baburao Sankpal

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is sufficient to hold that the respondent / accused was driving

the jeep in question in a rash and negligent manner and

thereby caused death of Banti Sankpal. According to the

learned Additional Public Prosecutor, there is no reason to

disbelieve the trust-worthy account of the incident in question

coming from the mouth of PW6 Shakil Mulla and PW7 Baburao

Sankpal.

4. As against this Mr.Thorat, the learned counsel

appearing for the respondent / accused submitted that the

impugned judgment and order passed by the learned J.M.F.C.

is perfectly correct and a probable view which is in

consonance with evidence adduced by the prosecution is

taken by granting the benefit of doubt to the respondent /

accused.

5. With the assistance of the learned counsel

appearing for the parties, I have carefully perused the record

and proceedings, including the evidence adduced by the

prosecution. The entire case of the prosecution rests on the

ocular version of the incident coming on record from PW6

Shakil Mulla and PW6 Baburao Sankpal. The death of Banti

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Sankpal, a child aged about 1½ years in the accident in

question is not in doubt. Evidence of autopsy surgeon PW4

Mahesh Welnenkar is duly corroborated by the post mortem

report at Exhibit-26. This evidence goes to show that Banti @

Sadhana Sankpal died due to shock caused because of

fracture of skull with subdural haematoma. Inquest notes duly

proved by PW3 Babasaheb Patil, panch witness, goes to show

that death body of Banti Sankap was having head injuries.

This evidence is sufficient to show that a child named Banti

Sankpal died homicidal death.

6. Now, let us examine whether the prosecution has

proved that it was the accused who by rash, negligent as well

as dangerous driving of the jeep bearing registration No. MH-

10/C-366 caused the death of Banti Sankpal and thereby

made himself liable for punishment as provided under section

304A of the Indian Penal Code and section 184 of the Motor

Vehicles Act.

7. At the outset, it needs to be kept in mind that rash

and negligent act implies omission to do something which

reasonable and prudent person guided by the consideration

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which ordinarily regulates human affairs would do. Rash and

negligent driving postulates doing something which a prudent

and reasonable person guided by similar consideration would

not do. The speed of the vehicle - high or slow by itself does

not amount to rash and negligent act on the part of driver of a

vehicle. The rash and negligent or dangerous act implies lack

of ordinary care and prudence which is expected of a person

of ordinary prudence.

8.

Let us now turn to the evidence of PW6 Shakil

Mulla. He is an handcart owner and used to sell cold drinks in

front of the school. He claims to have witnessed the incident

while standing at his handcart. It is in his evidence that on

the date of incident at about 10.45 to 11.00 a.m. while he was

doing his business by standing at the handcart, a jeep came

from Turuchi side and a girl came under the said vehicle. He

deposed that at the time of the accident, the girl was

proceeding ahead of the jeep and the driver of the jeep was

talking to somebody by leaning out of the said jeep. Let us

examine what this witness has deposed in his cross-

examination. His cross-examination reveals that he was

behind the jeep and the victim girl was in front of the jeep. He

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admitted in his cross-examination that nobody was talking

with the driver of the jeep at the time of the incident in

question. His cross-examination shows that except him,

nobody else was present at the spot of incident. Cross-

examination of this witness as such makes it clear that the

driver of the jeep was not taking with anybody while driving

the jeep as claimed by him in chief-examination. As this

witness was behind the jeep, he was not in a position to

witness what was happening ahead of the jeep. It can be said

that that PW6 Shakil at the most had witnessed the accident

while being at the backside of the jeep. This material elicited

from this witness in the cross-examination makes it difficult to

assign rashness or negligence on the part of the driver of the

jeep in causing the accident.

9. The next witness relied by the prosecution in

support of the charge is PW7 Baburao Sankpal, the paternal

grand-father of the deceased. In chief-examination itself, this

witness has stated that he is unable to state as to how the

accident took place and who is responsible for the incident in

question. He claims to be in front of the hotel when the

incident in question took place. As per his version, when he

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was near the hotel, a jeep came from Turachi side. The driver

of the jeep was talking with two persons who were outside the

jeep. PW7 Baburao Sankpal further deposed that the driver of

the jeep could not notice his grand-daughter Banti and as

such, the jeep gave dash to his grand-daughter causing her

death. This witness was particular in stating that at the time

when the driver of the jeep was talking with others who were

outside the jeep, the jeep was in motion. Cross-examination of

this witness reveals that the jeep was proceeding slowly.

10. The learned trial Court disbelieved the version of

PW7 Baburao Sankpal as improbability had crept in the

evidence of this witness. It is hard to believe that driver would

drive the jeep by keeping it in motion and at the same time

would speak with the outsiders. The learned trial Court further

doubted presence of this witness on the scene of offence by

holding that neither PW6 Shakil Mulla nor PW3 Babasaheb

Patil had named this person as an eye witness to the incident

in question. PW6 Shakil Mulla had categorically deposed that

the only person present at the spot witnessing the accident.

With this material on record, the conclusion of the learned trial

Court that presence of PW7 Baburao Sankpal on the spot and

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he witnessing the incident is doubtful, cannot be said to be

improbable view of the learned trial Court.

11. So far other witnesses are concerned, they are not

eye-witness to the incident in question. As such, their

evidence is of no assistance to come to the conclusion that

the accident had happened because of the dangerous as well

as rash and negligent driving of the vehicle in question by the

respondent / accused, causing death of Banti @ Sadhana

Sankpal.

12. The view taken by the learned trial Court as such

cannot be said to be unreasonable and perverse view of the

evidence on record while acquitting the respondent / accused.

No compelling or substantial reasons can be seen from the

evidence available on record to disturb the finding of acquittal

of the respondent / accused recorded by the learned J.M.F.C.

Tasgaon. In the result, the appeal fails and the same is

hereby dismissed.

(A.M.BADAR, J.)