Bombay High Court
Vimanjan Hanumanta Devarkonda vs The State Of Maharashtra on 10 April, 2017
Bench: A.M. Badar
(2)APPRNo.952017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.95 OF 2017
IN
CRIMINAL REVISION APPLICATION NO.91 OF 2017
WITH
CRIMINAL REVISION APPLICATION NO.91 OF 2017
Mr.Vimanjan Hanumanta Devarkonda,
Aged 42 years, Occ. Service,
Residing at Room No.01, Galli No.09,
Kunchi Kurve Nagar, Near Kalina
Church, Santacruz (East),
Mubmai 400 029. )...APPLICANT
V/s.
The State of Maharashtra,
At the instance of Kurla Police Station,
Mumbai. )...RESPONDENT
.....
Mr.Ravi L. Gurnani with Mr.Vijay Agale, Advocate for the
Applicant.
Mr.P.H.Gaikwad-Patil, APP for the Respondent - State.
.....
CORAM : A. M. BADAR, J.
DATE : 10th APRIL 2017
ORAL JUDGMENT :
1 By this revision petition, the revision petitioner/
original accused is challenging the Judgment and Order passed by
Gaikwad RD 1/12
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the learned Sessions Judge, Mumbai in Criminal Appeal No.882 of
2014 on 3rd January 2017 thereby dismissing his appeal
challenging the Judgment and Order dated 02/09/2014 passed by
the learned Metropolitan Magistrate, 51st Court, Kurla in
C.C.No.356/PW/2000 convicting him of offences punishable
under Sections 279, 337, 304-A of the Indian Penal Code ("IPC"
for the sake of brevity) and under Section 134(a) and (b) read
with Section 187 of the Motor Vehicle Act, 1988 ("M.V.Act" for
the sake of brevity). The learned trial Magistrate upon conviction
of the revision petitioner had sentenced him to suffer simple
imprisonment for six months apart from payment of fine of
Rs.1000/- in default to undergo further simple imprisonment for
one month for the offence punishable under Section 279 of the
IPC. For the offence punishable under Section 337 of the IPC, he
is sentenced to suffer simple imprisonment for six months apart
from payment of fine of Rs.500/-, in default to undergo further
simple imprisonment for one month. For the offence punishable
under Section 304-A of the IPC, he is sentenced to suffer simple
imprisonment for one year apart from payment of fine of
Rs.2000/-, in default to undergo further simple imprisonment for
one month. For the offence punishable under Section 134(a) and
(b) read with Section 187 of the M.V.Act, he is sentenced to suffer
simple imprisonment for three months apart from payment of fine
of Rs.500/-, in default to undergo further simple imprisonment for
fifteen days.
Gaikwad RD 2/12
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2 It is the case of prosecution that on 29/03/2000, the
revision petitioner/accused had driven a Maruti van bearing
No.MH-02-JA-228 in a rash and negligent manner and gave dash
of that vehicle to Sugrabi and her son Abdul Rafiq. The incident,
according to the prosecution case, took place near Halav bridge of
Kurla in front of Kudiya Badlu Chawl. The FIR (Exh.5) of the
crime in question came to be lodged by P.W.No.1 Yasmin Abdul
Khalid on 29/03/2000 itself. Accordingly Crime Registration
No.72 of 2000 for the offence punishable under Sections 279, 337,
304-A of the IPC and under Sections 134(a) and (b) read with
Section 187 of the M.V.Act came to be registered. The revision
petitioner/accused came to be arrested on 30/03/2000. Spot was
inspected and spot panchanama came to be drawn. On
completion of routine investigation, charge-sheet came to be filed
and after due trial conviction came to be recorded in
C.C.No.356/PW/2000 by the learned Metropolitan Magistrate,
Kurla on 02/09/2014. The accused came to be sentenced as
indicated in the opening paragraph of this judgment. Feeling
aggrieved by this conviction and sentence, the revision
petitioner/accused filed an appeal bearing No.882 of 2014 which
came to be dismissed on 03/01/2017 by the learned Additional
Sessions Judge, Mumbai by the impugned Judgment and Order.
3 I heard the learned Advocate appearing for the
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revision petitioner/original accused. He argued that according to
the prosecution case, the incident in question took place on
29/03/2000 at about 11.30 p.m. There is no evidence regarding
availability of light on the spot of incident. There were in all five
persons in the vehicle. It is the case of prosecution that nobody
was apprehended on the spot of the incident. Hence, in
submission of the learned Advocate for the revision petitioner,
evidence regarding identification of the revision petitioner is
highly doubtful. He further argued that prosecution witnesses
were not knowing the accused and no test identification parade
was conducted by the prosecution. Hence, offence is not proved.
It is further argued that there is no evidence to come to the
conclusion that the revision petitioner was under influence of the
liquor as stated by the witnesses for the prosecution. It is further
argued that the prosecution has examined P.W.No.6 Raju - owner
of the Maruti van in question. But there is no evidence to show
that to whom the vehicle was entrusted by Raju Jadhav. All
witnesses examined by the prosecution, in submission of the
learned Advocate for the revision petitioner, are interested
witnesses and, therefore, their evidence is not reliable. With this,
it is argued that for want of sufficient evidence, the revision
petitioner/accused is certainly entitled for benefit of doubt.
4 The learned Additional Public Prosecutor supported
the impugned Judgment and Order of conviction.
Gaikwad RD 4/12
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5 I have carefully considered the rival submissions and
also perused Record and Proceedings called from the Court below.
Section 279 of the IPC deals with rash and negligent driving
endangering human life. Section 304-A of the IPC deals with
causing death by negligence. Causing of death of a person by
doing any rash and negligent act not amounting to culpabale
homicide is made punishable by this Section of the IPC. Section
337 of the IPC deals with causing hurt to any person by doing any
rash and negligent act endangering human life or the personal
safety of others. Section 134(a) and (b) of the M.V.Act deals with
lapses on the part of driver of the motor vehicle. In the case in
hand, the revision petitioner/accused is convicted for causing
death of Sugrabai by his rash and negligent driving of the Maruti
van and injuring her son P.W.No.3 Abdul Rafiq by dashing the
Maruti van. As such, one will have to determine whether the
revision petitioner was driving the Maruti van involved in the
incident and whether driving was rash and negligent. Negligence
is a breach of duty or lack of proper care in doing something.
Negligence reflects want of attention and doing of something
which a prudent man would not do. Criminal negligence defined
in Section 304-A of the IPC means gross and culpable negligence
or failure to exercise the reasonable and proper care which it was
imperative duty of the accused to have exercised. For making out
such offence punishable under Sections 279, 304-A and 337 of the
Gaikwad RD 5/12
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IPC, there must be proof that rash and negligent act of the
accused was a proximate cause of a death of a person or hurt to a
person. Direct nexus between death or hurt and rash and
negligent act is required to be proved by the prosecution for
making out offences punishable under Sections 279, 337 and 304-
A of the IPC.
6 Similarly, one will also have to keep in mind that the
revision petitioner has invoked revisional jurisdiction of this Court
in challenging concurrent findings of facts arrived at by both
Courts below holding that offences punishable under Sections
279, 337, 304-A of the IPC and under Sections 134(a) and (b)
read with Section 187 of the M.V.Act are proved against him. The
revisional jurisdiction is required to be exercised sparingly when
there is glaring error of law resulting in miscarriage of justice or
when there is procedural irregularity resulting in failure of justice.
While exercising the revisional jurisdiction, evidence cannot be
appreciated and finding of fact recorded by Court below cannot be
interfered with unless it is shown to be perverse. Sufficiency of
evidence to hold the fact as proved cannot be gone into albeit,
want of evidence to hold a fact to be proved can certainly be
looked into. Keeping in mind these parameters in exercising
revisional jurisdiction, let us consider whether Courts below have
committed error of law or procedural irregularity while recording
conviction against the revision petitioner warranting interference
Gaikwad RD 6/12
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in revisional jurisdiction of this Court.
7 In the case in hand, death of Sugrabi Abdul Khalid
Ansari is not disputed by the defence. The defence has admitted
inquest panchanama (Exh.12) and P.M.Report of deceased
Sugrabi. From perusal of P.M.Report it is seen that she died
because of hemorrhagic shock due to polytrauma. The defence
has not disputed the spot panchanama recored on 30/03/2000.
This spot panchanama is at Exhibit 11. It reflects that the incident
took place in front of Kudiya Badlu Chawl near Halav bridge of
Kurla. Maruti van bearing registration No.MH-02-JA-228 was
seen standing in damaged condition on the spot. Apart from that
a broken wooden cot was also found on the spot. The spot of
incident shown in the spot panchanama is a foot path having 10
feet width. Width of the road abutting that foot path is stated to
be 25 feet. With this undisputed position emerging on record, let
us see whether it is proved by the prosecution that it was the
revision petitioner/accused who was driving the Maruti van
involved in the accident and whether he has shown criminal
negligence in driving it causing death of Sugrabi and injuries to
P.W.No.3 Abdul Rafiq.
8 P.W.No.1 Yasmin Abdul Khalid is the first informant in
the instant case. From her cross-examination, it is brought on
record that deceased Sugrabi and P.W.No.1 Abdul Rafiq were
Gaikwad RD 7/12
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sitting on the cot outside the house. Her cross-examination
further shows that she herself and her sister were standing at the
door of their house. Deceased Sugrabi is her mother whereas
P.W.No.3 Abdul Rafiq is her brother. Size of her house was just
10 feet x 10 feet as seen from the evidence of P.W.No.4 Ashok
Sasane. From cross-examination of P.W.No.5 Salma - sister of
P.W.No.1 Yasmin, it is confirmed by the defence itself that
P.W.No.1 Yasmin was with P.W.No.5 Salma at the time of the
incident in question and they both were standing at the door of
their house. From the cross-examination of P.W.No.2 Nasim Banu
- another sister of P.W.No.1 Yasmin, it is brought on record by the
defence that at the time of incident in question, P.W.No.1 Yasmin
was standing at the door of the house. This material brought on
record by cross-examination of P.W.No.2 Nasim Banu and
P.W.No.5 Salma is enough to conclude that P.W.No.1 Yasmin is a
eye witness to the incident in question. This eye witness P.W.No.1
Yasmin has deposed that the Maruti van came from eastern side
by driving a distance of 30 to 35 feet and dashed to her mother
Sugrabi and brother Abdul Rafiq. She deposed that it was the
revision petitioner/accused, who was driving the van at the time
of the incident and she identified him while giving her statement
before the Court. Though, in chief-examination, this witness has
not uttered anything about source of light at the time of incident,
this lacuna in her evidence came to be fulfilled by her cross-
examination and by eliciting from her mouth that at the time of
Gaikwad RD 8/12
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incident in question, there was light from the street light as well
as from the bulb of electricity in her house. As such, it cannot be
said that because of darkness, P.W.No.1 Yasmin was not in a
position to identify the driver of the Maruti van.
9 P.W.No.3 Abdul Rafiq is injured victim of the incident
in question. His evidence shows that when he as well as his
mother Sugrabi were sitting at the door of their house, one Maruti
van came in speed across the road towards their door and ran
over his mother Sugrabi as well as himself. This witness has also
deposed that it was the revision petitioner/accused who was
driving the Maruti van and who had ran away from the spot.
While in the witness box, this witness identified the revision
petitioner/ accused. Cross-examination of this witness goes to
show that the Maruti van involved in the accident crossed the
road and came on the foot path in order to give dash to the cot on
which P.W.No.3 Abdul Rafiq and his deceased mother Sugrabi
were sitting. Material elicited from cross-examination of this
witness confirms the spot panchanama of the incident as foot path
in front of the house of this witness as reflected in the spot
panchanama - an undisputed document. There is nothing in
cross-examination of this witness to disbelieve his version that it
was revision petitioner/accused who was driving the Maruti van.
10 Though P.W.No.4 Ashok Sasane - a neighbourer
Gaikwad RD 9/12
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rushed to the spot of the incident soon after the incident, he being
the next door neighbourer of deceased Sugrabi, his evidence can
be relied to come to the conclusion that it was revision
petitioner/accused who was driving the Maruti van. This witness
has categorically accepted the fact that he has not actually seen
the accident, but upon hearing loud noise, he rushed out of the
house and saw the incident and he had seen the revision
petitioner as a driver of the vehicle. This witness has also
identified the revision petitioner/accused while in the dock.
11 P.W.No.5 Salma Abdul Khalid is daughter of deceased
Sugrabi and sister of first informant and injured Abdul Rafiq. Her
cross-examination also reveals that Sugrabai and P.W.No.3 Abdul
Rafiq were sitting on the cot and she as well as her sister
P.W.No.1 Yasmin were standing at the door of the house when the
incident took place. She deposed that when she was standing at
the door with P.W.No.1 Yasmin, the Maruti van came and dashed
to her mother and brother. She has also deposed that it was the
revision petitioner/accused who was driving the Maruti van. She
has also identified the revision petitioner/accused as driver of the
vehicle involved in the accident. P.W.No.2 Nasim Banu is another
daughter of deceased Sugrabi. She was inside the house when the
incident took place. She accepted this fact. But from her cross-
examination, it is elicited that she had seen the revision
petitioner/accused while getting down from the driver seat of the
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van after the incident.
12 It is thus clear that all prosecution witnesses have
came up with a version that they had seen the revision
petitioner/accused as a person who was driving the Maruti van
involved in the accident. Source of light on the scene of
occurrence was brought on record from cross-examination of
P.W.No.1 Yasmin Abdul Khalid. Both Courts below on the basis of
this evidence on record have come to the conclusion that it was
revision petitioner/accused who was driving the motor vehicle
involved in the accident. As such, it is not possible in the
revisional jurisdiction to conclude that this finding of fact is
unsupported by evidence. True it is that no test identification
parade was conducted by the prosecution, but ultimately it is the
dock identification which is a substantive evidence.
13 The incident in question, as seen from the witnesses'
examination by the prosecution, whose presence on the scene of
occurrence was natural, took place on the foot path abutting the
road. The Maruti van crossed the road and came on the foot path
giving dash to the deceased Sugrabi and her son P.W.No.3 Abdul
Rafiq. The standard which needs to be applied in such case is that
of a prudent person acting in a similar situation. By no stretch of
imagination, one will say that a prudent person would drive a
Maruti van in such a way to take it on the foot path of the road.
Gaikwad RD 11/12
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This act is certainly negligent as well as rash because it depicts
lack of due care and attention. Therefore, no infirmity can be
found in conviction of the revision petitioner of offences
punishable under Sections 279, 337, 304-A of the IPC. Similarly,
as seen from the evidence of witnesses that he instead of
providing medical aid to the injured as well as Sugrabai who was
found to be dead after the incident, fled from the spot of the
incident. As such, the offence punishable under Sections 134(a)
and (b) read with Section 187 of the M.V.Act is also made out by
the prosecution.
14 In the result, no infirmity can be found with the
impugned Judgment and Order of the appellate Court and as
such, the order.
(i) The revision petition is dismissed.
(ii) Consequently, pending Criminal Application No.95 of
2017 for suspension of sentence is also rejected.
(iii) Time of two weeks is granted to the revision petitioners
to surrender.
(A. M. BADAR, J.)
Gaikwad RD 12/12
