Bombay High Court

State Of Maharashtra vs Bhaskar Shriram Hudekar on 7 August, 2017

Bench: Swapna Joshi

                                                                                             CRI.APPEAL.155.03
                                                             1


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

                            CRIMINAL APPEAL NO. 155/2003 

          State of Maharashtra 
          Through : Police Station Officer 
          Buldana.                                                                             ..   APPELLANT 

                     v e r s u s

          Bhaskar  Shriram  Hudekar 
          Aged about 42 years, 
          Nandra Koli, Tq. & Dist. Buldana.                                                  .. RESPONDENT

...........................................................................................................................
           Mr. S.B.Bissa,  Additional Public Prosecutor for  appellant -State
           Mr. P. S.Gavai, Adv. h/for Mr R.L. Khapre, Advocate for respondent 
............................................................................................................................

                                                     CORAM: MRS.SWAPNA JOSHI, J.

                                                     DATED:     7th August, 2017

ORAL  JUDGMENT:

This Appeal has been preferred against the judgment and order

dated 21.11.2002 delivered in Criminal Case No.2070/2001, by the learned

Judicial Magistrate, First Class, 3rd Court, Buldana, thereby acquitting the

respondent of an offence punishable under sections 279 and 304-A of the

Indian Penal Code.

2. Heard Mr. S.B. Bissa, the learned Additional Public Prosecutor

for the appellant-State and Mr.Gavai, Advocate holding for Mr. R.L.Khapre,

learned counsel for the respondent. I have gone through the entire record of

the case and the impugned judgment and order.

CRI.APPEAL.155.03

3. The unfortunate incident had taken place on 11.12.2001. The

complainant PW1-Abdul Saeed Abdul Aziz was sitting bear the Bus Stand.

Between 2.00 and 2.25 p.m., one ST Bus which was coming towards

Deulghat, gave a dash to small girl on the tar road, in front of the house of one

Sk. Yusuf Sk.Hussain. The people nearby rushed to the place of the incident.

They noticed a ST Bus bearing No. MH 39 W-9140 which was proceeding

from Ajintha to Buldana, which was in a parked condition. The small girl, by

name, Nagma @ Shahida Parveen, aged about 5 years, was seen lying dead

under the front wheel from the side of the driver. According to the

complainant, the vehicle was driven rashly and negligently which injured

Nagma @ Shahida Parveen, so grievously that her head was severed from

body and she died on the spot. The complaint was lodged by PW 3-

Rahmanbeg, on the basis of which the offence came to be registered and the

investigation started.

4. Mr.S.B.Bissa, the learned APP contended that the learned trial

Magistrate has failed to consider that the vehicle in question was driven by

the respondent in a rash and negligent manner which caused the death of a

small girl, aged about 5 years. He contended that the learned Magistrate has

failed to consider that there was ample evidence on record to show that the

vehicle was driven in a rash and negligent manner by the respondent,

inasmuch as there were tyre marks noted in the spot panchnama which

indicated that the respondent has driven the vehicle in a rash and negligent

CRI.APPEAL.155.03

manner which caused the death of the small child. The learned APP mainly

relied upon the testimony of PW 6- Salimkhan Guljarkhan, who is alleged to

be the eye witness to the incident and the spot panchnama (Exh.20).

5. Per contra, Shri Gavai, the learned counsel for the respondent

submitted that there are absolutely no eye witnesses on the aspect of the

incident of alleged rash and negligent driving by the respondent. According to

him, none of the witnesses were in a position to note the high speed of the

vehicle. Mr Gavai submitted that the notion of the witnesses about the term

"high speed" was not explained by them as such. He submitted that simply

stating that the vehicle was in a high speed is not sufficient to explain the

incident of rash and negligent driving. Shri Gavai pointed out that in the

testimony of PW 7-Mohd.Yusuf Mohd. Hussain it has come on record that the

small girl was attending the nature's call by the side of the road and when

the vehicle came near her, she suddenly tried to cross the road and the the

unfortunate incident took place.

6. The prosecution has examined in all nine witnesses. Out of these

witnesses the testimony of the alleged eye witnesses, which are four in

number, is to be considered.

7. So far as the alleged eye witnesses are concerned, they are PW 3-

Rahmanbeg, PW 5-Sk. Ismael, PW 6-Salimkhan and PW 7-Mohd. Yusuf

Mohd. Hussain. As far as the testimony of PW 3-Rahmanbeg is concerned, on

the date of the incident at about 2.00 pm, the bus having a board Ajintha -

CRI.APPEAL.155.03

Buldana gave a dash to the girl. According to him, he was present near the

spot at the time of the incident. The bus was in speed and the girl was

playing by the side of the road and the said Bus ran over by the front wheel

towards the drivers side. He lodged the complaint (Exh.16) in the Police

Station. During the cross-examination, PW-3 has stated that he had

witnessed the incident from the distance of about 25 feet. He admitted that it

was a crowded place as there were hotels nearby. He also admitted that

there was a speed breaker. PW-3, however, failed to state as to how many

passengers got down from the Bus. He also failed to state as to how the said

girl arrived on the road. He simply stated that the girl was playing in front

of her house. PW 3 denied that the said girl came running towards the Bus

at the time of incident to cross the road. On careful scrutiny of the testimony

of PW 3, it is noticed that the place of incident was the road which was near

the crowded place and the spot panchnama indicates that the bus stand was

at a distance of about 100 metre from the place of the incident. In these

circumstances, it is not clear as to how PW 3 was in a position to see the exact

incident of the Bus running over the girl by the front wheel towards the

driver's side. Even PW 3 failed to state as to how the girl arrived on that road.

It was not the case that it was a clear road and there was nobody near the

bus stop. In normal circumstances, the Bus stop is a crowded place. Therefore,

it is not clear as to how PW 3 witnessed the incident from the distance of

about 100 metres as the spot panchnama reveals the distance between the

CRI.APPEAL.155.03

bus stop and the place of incident of 100 metres. Pertinently, PW 3 also

admitted that there are hotels situated near the said Bus stop where there is a

crowd. In these circumstances, the testimony of PW 3 does not inspire

confidence inasmuch as it is not found to be reliable witness.

8. So far as the testimony of PW 4-Gulzarkhan is concerned, he

stated that the accident caused by ST bus by respondent in front of the

house of deceased Parveen and he was present in his house. He stated that he

came out of his house to see his son. However he found that the girl met with

an accident. According to PW 4 his house is situated at about a distance of 50

feet from the place of the incident and he came out of his house to see as to

whether his son had been to fetch water or not. In his cross-examination he

clearly stated that he entered the house again and then he heard the

commotion outside. From this version of PW 4, it is clear that at the time of

the incident, he was not present at the place of the incident and when he

heard the noise of the incident, he came out of his house. On the point of the

Bus coming in a high speed, PW 4 stated that he had seen the bus coming in

a high speed and it gave dash to a girl. However interestingly, the said

version is an improvement in the statement of PW 4. In view thereof PW 4

cannot be termed as an eye witness to the incident.

9. As regards the testimony of PW 5-Sk.Ismael Sk. Ibrahim, he

stated that it was between 2 to 2.30 p.m. When he was returning back from

his field a bus was proceeding from Ajintha to Buldana. The said Bus was in

CRI.APPEAL.155.03

a high speed. The said bus ran over the girl and the girl died on the spot

instantaneously. It is worthy to note that in the cross-examination PW-5

admitted that when he reached the spot, the actual incident was over. He

further explained that he does not know as to how the accident took place.

The clear admission on the part of PW- 5 indicates that he was not a witness

to the incident.

10. Now coming to the testimony of PW 7-Mohd. Yusuf Mohd.

Hussain, who is the father of the deceased, he has clearly stated that the

incident occurred in front of his house and at that time he was present in his

hotel. He stated that on hearing the noise and commotion, he went to the

place of the incident and saw his daughter's body and head was separated.

Thus, PW 7 has also not seen the actual incident.

11. On careful scrutiny of the above-said alleged eye witnesses, it is

amply clear that none of the witnesses had seen the actual incident on alleged

rash and negligent driving by the accused. Nobody had seen as to how the

girl came below the wheels of the said ST bus.

12. The learned APP contended that the spot Panchnama (Exh.20)

indicates that there were tyre marks of about 10 ft. visible at the place of the

incident and the distance between the front wheel from the side of the Driver's

seat and the rear wheel was of 17 ft. and the tyre marks were visible in

between the said distance which clearly indicates that the Bus was in a high

speed and the driver tried to apply brakes and, therefore, the marks appeared

CRI.APPEAL.155.03

on the road. The learned counsel for the respondent submitted that only on

the basis of those marks which are seen from the spot panchnama, one cannot

say that these are the marks of the same vehicle which cased the gruesome

incident. The learned counsel for the respondent further submitted that the

alleged incident had taken place between 2.00 and 2.30 p.m. and the spot

panchnama was conducted between 3.00 and 4 00 p.m. He submitted that in

between it is quite possible that many vehicles would have passed on the said

road. Therefore, it cannot be said that those marks were of the same vehicle

due to which the alleged incident had taken place. There is substance in the

contention of the learned counsel for the respondent as there is no expert's

evidence on record to show that the marks of the tyres which were seen at the

place of the incident were caused due to the vehicle which caused the

unfortunate incident. As regards the P.M. report, it reveals cause of death as

haemorrhagic shock due to injury to vital organ i.e. brain with multiple

fractures.

13. In the case of Mahadeo Hari Lokre vs. State of Maharashtra,

reported in AIR 1972 SC 221, the Hon'ble Apex Court though on the facts of

that particular case has pronounced that, if a pedestrian suddenly crosses a

road without taking note on the approaching bus, there is every possibility of

his dashing against the bus without the driver becoming aware of it. The Bus

Driver cannot save accident however slowly he may be driving and therefore

he cannot be said to be negligent in such a case.

CRI.APPEAL.155.03

14. In the case of Tukaram Sitaram Gore vs.State, reported in AIR

1971 Bombay 164, an unreported decision dated 21.03.1968 in Criminal

Appeal No.154/1965 of the Hon'ble Apex Court is referred, wherein it is held

that, "the use of expression "high speed" (that being the expression used by a

witness in the case before the Supreme Court) was not enough to prove

rashness or negligence, unless evidence was elucidated from the witness who

used that expression as to what his notion of speed was." Thus, the notion

of the witnesses about high speed must be clear.

15. In the case of Bashir Janubhai Pathan vs.State of Maharashtra,

reported in 2014 (3) Bom. C.R.(Cri) 791, it is held that, since bus was not

in a high speed and in absence of evidence on part of PW1 that at the relevant

time, applicant drove his bus in rash and negligent manner; but only deposed

that it was in a high speed, from which, it is clear that unfortunate incident

was not a result of rash or negligent driving on part of present applicant.

16. Section 304A of the Indian Penal Code contemplates as under :

Causing death by negligence - Whoever causes the death of any person by doing any rash and negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both.

Section 279 of the IPC reads under :-

Rash driving or riding on a public way - Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger

CRI.APPEAL.155.03

human life, or to be likely to cause hurt or injury to any other person shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Section 304A will come into picture if the death is caused by rash

and negligent act. Section 279 can be made applicable, if the driver is found

to be rash and negligent while driving the vehicle on a public way. Therefore,

in order to prove the guilt of the applicant, the prosecution was under

obligation to prove the factum of rash and negligent act, on the part of the

applicant beyond reasonable doubt.

17. In the instant unfortunate incident also, Nagma, aged about 5

years, who was by the side of the road, attending the nature's call, appears

suddenly tried to cross the road and came below the front wheel of the bus. As

discussed above, there is absolutely no evidence on record that the bus was in

a high speed and at the relevant time the respondent drove the Bus in a rash

and negligent manner. In view thereof it cannot be said that the unfortunate