Bombay High Court
Dnyaneshwar S/O Dattatraya ... vs The State Of Maharashtra And Anr on 18 October, 2016
Bench: V.L. Achliya
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.164/2016
Dnyaneshwar S/o Dattatraya Kangare
Age: 29 Years, Occ: Labour,
R/o: Suregaon, Tq.Newasa,
Dist.Ahmednagar, At present
residing at Loni (kh.),Tq.Rahata
Dist.Ahmedpur ig ..APPELLANT
VERSUS
1] The State of Maharashtra
(Through Government Pleader,
High Court of Bombay Bench at
Auranabad.)
2] Deepak S/o Damodhar Markali
Age 35 years, Occu-Driver
R/o Newasa (Bk), Tq.Newasa,
Dist.Ahmednagar. .. RESPONDENTS
-----
Mr.Y.B.Pathan, Advocate for appellant.
Mr.A.V.Deshmukh, APP for Respondent-State
Mr.Sachin S. Kotkar,Adv.for respondent no.2.
-----
CORAM : V.L.ACHLIYA,J.
DATE : 18TH OCTOBER, 2016
ORAL JUDGMENT :-
By consent, appeal is finally heard at the stage of
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admission.
2] The present appeal is filed under Section 372 of Cr.P.C.
by son of deceased Dattatraya Dhondiba Kangare who died in
motor vehicle accident.
3] By the present appeal, the appellant has challenged the
judgment and
ig order dated 28/1/2016 passed in
S.T.C.No.176/2007 by Judicial Magistrate, First Class, Newasa,
Dist.Ahmednagar, whereby learned JMFC has closed the
proceeding after examining one witness and acquitted the
accused. The appeal is preferred on various grounds which
includes undue haste shown on the part of the learned
Magistrate in disposal of the proceeding which according to the
appellant resulted into serious miscarriage of justice.
4] I have heard learned counsel for the appellant, APP for
the State and counsel representing accused-respondent no.2
and further perused the record and proceedings.
5] The fact is not in dispute that accused was charge
sheeted for committing offence under Sections 304(a), 279,
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337, 338, 427 of IPC and Sections 184, 134(a) (b)/177, 3(1),
181, 146/196, 130/177 of Motor Vehicle Act with allegations that
at the relevant time of the accident he was driving the tempo
trax jeep bearing Registration No.MH/20/E/9638 in rash and
negligent manner and gave dash to the motor cycle driven by
the deceased which resulted into causing his death on the spot.
On the basis of complaint lodged by Rajendra Pandharinath
Shinde said offences came to be registered against respondent
no.2 vide Cr.No.208/06 dated 23/11/2006 with police station,
Newasa. After registration of offence, investigating officer
conducted investigation. He visited the spot of incident,
prepared the panchanama of scene of occurrence and
recorded the position of both the vehicles as well as other
circumstances. During the course of investigation, the
investigating officer recorded statements of number of
witnesses which includes Jagannath Gaikwad, Kailash Shinde,
Ranjit Tarde, Harichandra Patare, Narayan Shinde, Rambhau
Kangire. In the charge sheet filed, prosecution has cited as
many as fifteen witnesses to be examined in support of the case
of prosecution.
6] It appears from the record that for years together, the
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matter remained pending due to non availability of accused for
trial. All of a sudden, learned Magistrate has taken up the matter
for evidence and closed the proceeding by recording statement
of only one witness. Learned Magistrate has observed that
whatever facts the witness has deposed can be termed as
hearsay evidence. No serious efforts were made to secure the
presence of witnesses. Hurriedly the case was closed on
25/1/2016 and accused came to be acquitted. Being
aggrieved, appellant has preferred this appeal.
7] Learned counsel for the appellant has pointed out from the
record and proceedings that undue haste was shown on the
part of learned Magistrate in deciding the case. He has pointed
out that there are number of witnesses cited by the prosecution
which includes the witnesses to the incident, who were neither
summoned nor examined in the case. He has submitted that it
is not necessary that in each and every case there should be
eye witness to the incident. The case can also be decided
based on circumstantial evidence. According to him, the
learned Judge has committed gross error in acquitting the
accused without summoning and examining the important
witnesses cited by the prosecution.
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8] On the other hand, learned counsel for the respondent
no.2 submits that case was pending since 2006. Inspite of
issuance of summons to the witnesses, the witnesses have not
appeared before the Court. On due consideration of the facts of
the case and non attendance of the witnesses, the learned
Magistrate has closed the proceeding. In this context, the
learned counsel has invited attention to order dated 25/1/2016
passed by learned Magistrate.
9] In order to appreciate submissions, I have throughly perused
the record and proceedings. On perusal of the record and
proceedings, I am convinced that the learned Judge of the trial Curt
has shown undue haste in disposal of the proceeding. The charge
sheet was filed in the year 2006. Since after filing of charge sheet the
accused appears to be not attending the proceedings. The roznama
of the proceeding reflects that from 2007 onwards till 2011, the
accused was absent though repeatedly warrants were issued. Since
after filing of charge sheet the accused appeared first time on
9/4/2012 and the learned counsel for the accused gave consent to
admit the spot panchanama, post mortem report by dispensing with
its formal proof and same were admitted in evidence and marked as
Exh.13 and 14. Vide application Exh.15, learned APP moved an
application to issue summons to the prosecution witness. Since
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thereafter there was no progress in the case and accused also
remained absent and various orders were passed to issue warrant
to secure the presence of accused. It is rather surprising that when
the case remained pending for years together for seeking presence
of the accused, all of sudden the accused appeared on 19/3/2014
and moved an application for cancellation of warrant. The roznama
of the proceeding reveals that the summons issued to the witnesses
were not returned. On 25/1/2016, the accused was absent. In
absence of accused the evidence of one witness was recorded and
the order has been passed to close the evidence of the prosecution.
The order dated 25/1/2016 passed by learned Judge reads as
under :
"Heard ld. APP. Ld. APP. Submitted that,
prosecution has examined one witness. Perusal of
evidence of evidence of P.W.1, it reveals that the said
witness was at his home and got the information
about the accident from one Rajendra Shinde. Thus,
the evidence of prosecution witness is hearsay
evidence. Summons to other witnesses were issued,
however, failed to come nor the the report is received.
Considering the said fact, the prosecution does not
want to examine any further witnesses and thet
evidence be closed. Considering the said facts, I
proceed to pass following order :
ORDER
1] Evidence of prosecution is hereby
closed.
2] No incriminating evidence against
accused to record statement u/s 313 of
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Cr.P.C., hence statement of accused u/s
313 of Cr.P.C. is dispensed with."
10] In my view the manner in which the trial Court has conducted
the proceeding has certainly resulted into causing serious
miscarriage of justice to the family of the victim. Perusal of the
charge sheet reflects that the case is entirely based upon
circumstantial evidence. There was no eye witness to the incident.
The spot panchanama and post mortem report were admitted in
evidence by dispensing with its formal proof. There are witnesses
who have visited the spot and deposed as to what they have found
on the spot immediately after the incident, which includes the
location of the motor cycle, the injured, position of jeep and other
circumstances. It was expected on the part of the learned Judge to
have given full opportunity to prosecution to examine the witnesses.
If report in respect of service of summons were not submitted, then
the Magistrate was not expected to have acted as silent spectator.
He should have exercised his powers to secure the report of service
and compelled the concerned officer to serve the summons and
submit report. The role of learned APP also appears to be doubtful.
It was expected on the part of learned APP to have taken all
necessary steps to secure the presence of witnesses. Such
approach to close the proceeding by examining one witness is
certainly not appreciable. No doubt the case is of 2006 and the
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Court was expected to decide the same in expeditious manner. But
the expeditious disposal of the case cannot be at the cost of ignoring
the right and interest of the victim involved in the case. In the
process of dispensation of just not only the right of accused to have
speedy disposal of case to be guarded but the rights and interest of
victim also needs to be protected by Courts of law.
11] Perusal of the charge sheet reflects that prosecution has cited
number of witnesses to prove its case. One amongst them is the
person who had seen the accused driving the jeep in question
immediately prior to the incident. Only for the reason that there is no
eye witness to incident cited by prosecution, the Court cannot at
once come to conclusion that there is no evidence in the case and
proceeding is liable to be closed. I am therefore of the view that it is a
fit case to set aside the impugned judgment and order and refer back
the matter for fresh decision from the stage at which the proceeding
was closed by directing the trial Court to allow prosecution to lead
further evidence so as to ensure that in the process of dispensation
of justice the interest of victim is also protected. Hence I am not
inclined to allow the appeal and pass following order :
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ORDER
I] Criminal Appeal No.164/2016 is partly allowed
to the extent of setting aside the impugned judgment
and order dated 28/1/2016 in S.T.C.No.176/2007
passed by learned JMFC at Newasa,
Dist.Ahmednagar. The case is remanded back to trial
Court to decide the proceeding afresh by giving full
opportunity of hearing to prosecution to summon and
examine witnesses though cited but remained to be
examined.
II] The trial Court is also directed to ensure that the
presence of all material witnesses cited by the
prosecution is secured and if necessary the trial
Court shall exercise its power to compel the
witnesses to remain present in the Court.
III] The appellant is granted liberty to make
appropriate application before the trial Court to assist
the prosecution.
IV] The accused/respondent no.2 is directed to
appear before the trial Court on 21/11/2016 and dates
subsequent thereto.
V] The trial Court is directed to decide the matter
expeditiously and ensure that the case is decided
within six months w.e.f. 21/11/2016.
(V.L.ACHLIYA,J.)
umg/
