The State Of Mah.Thr.P.S.O.Ural vs Nandu Pandurang Akotkar
2017 Latest Caselaw 708 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT NAGPUR
                                               
                CRIMINAL APPEAL NO.209 OF 2001 

 The State of Maharashtra
 through P.S.O. Ural, Tq. Balapur,
 Dist. Akola.                                               ..APPELLANT

          VERSUS

 Nandu Pandurang Akolkar,
 age about 31 years, Occ: Agri.,
 & businessman, r/o Malegaon (Bazar),
 Tq. Telhara, distt. Akola.
 (P.S. Telhara).                      ..RESPONDENT


 Smt. A.R. Deshpande, Addl. Public Prosecutor for 
 appellant;
 Mr S.V. Sohoni, Advocate for respondent

                              
                           CORAM :  N.W. SAMBRE, J. 

DATE : 14th MARCH, 2017

ORAL JUDGMENT :

Heard learned Additional Public

Prosecutor.

2. PW-9 Sanjay Dhumal, Investigating Officer,

attached to the Police Station, Ural, on 16th

August, 1999 received A.D. intimation under head

'Zero' from City Kotwali, Police Station, Akola.

Said A.D. was registered by Police Head Constable

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Bhujangrao, B.No. 905 of Police Station, City

Kotwali, Akola on 15th August, 1999.

3. Deceased Pramod Patkar met with an

accident while riding a bicycle along with pillion

rider. His bicycle was given dash from opposite

side by Hero Honda motor cycle which is driven by

present appellant, bearing Registration No.

MH-30/A-6733 in rash and negligent manner.

4. In view of statement of complainant

Sarangdhar Patkar, father of deceased Pramod, crime

came to be registered for offence punishable under

Section 304-A of the Indian Penal Code being Crime

No. 69 of 1999 on 16th August, 1999. The

investigation in the matter was completed by the

said Investigating Officer - PW-9 and charge sheet

came to be filed.

5. Charge came to be framed against the

accused on 3rd April, 2000 for the offence

punishable under Section 304-A of the Indian Penal

Code.

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6. Since the accused pleaded not guilty,

trial in the matter commenced. Of the total

witnesses, prosecution has examined in all nine

witnesses so as to support its case.

7. The defence has not examined any witness.

8. Learned Magistrate, vide judgment and

order dated 24th April, 2001 acquitted the accused

of the offence with which he is charged. As such,

criminal appeal in question.

9. Learned Additional Public Prosecutor,

while trying to make out a case for reversing

judgment, would urge that judgment of the trial

Court suffers from infirmities, particularly

learned Magistrate has not discussed and analyzed

the evidence of the witnesses in detail so as to

properly infer acquittal of the accused. According

to her, though PW-5 and PW-6, panch witnesses to

the spot panchnama, have not supported the case of

prosecution, still spot panchnama could have been

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considered to have been proved from the testimony

of the Investigating Officer. According to her,

plan of spot of incident was drawn and looking to

the very spot of incident, it could easily be

inferred that the respondent-accused was driving

motor cycle in rash and negligent manner causing

death of Pramod. She would submit that eye witness

to the incident PW-1 in categorical terms has

stated about the rash and negligent driving of

motor cycle by the accused. In addition, she would

also rely upon the testimony of PW-2 Vilas and PW-9

Investigating Officer Sanjay.

9. Per contra, learned Counsel for the

respondent-accused would submit that PW-5 and PW-6,

who are the panch witnesses to the incident, have

not supported the case of prosecution thereby

proving spot panchnama and spot of incident. He

would then urge that even bicycle and motor cycle

involved in the crime in question were not seized,

so also officer who has drawn the spot panchnama

was not examined. In addition, submission is made

that the incident is 17 years old and the Court

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should be slow in interfering with the order of

acquittal of the accused, particularly because of

pendency of the appeal of the State for long time.

According to him, the appeal deserves to be

dismissed.

10. Having considered submissions of the

parties and having perused original record, it is

required to be noted that on 14th August, 1999, the

accident in question took place. When the deceased

was riding bicycle along with PW-1 Atul Talokar,

present respondent-accused claimed to have riding

motor cycle on wrong side of the road.

11. It is then required to be noted that spot

panchnama came to be proved by PW-8 Narayan Sable,

Police Head Constable. From the said spot

panchnama, the place of accident is not

specifically inferred, as what has been pointed out

is the accident affected spot and not exact spot of

incident where the accident took place. PW-9

Investigating Officer has admittedly neither seized

bicycle nor motor cycle, which were involved in the

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accident in question. Apart from above, it is

required to be noted that the Investigating Officer

PW-9, in stead of visiting the spot before carrying

out detail investigation has drawn spot panchnama

based on Exhibit-20. Non-identification of the

spot by the person who has drawn spot panchnama

i.e. PW-9, investigation continued by the

Investigating Officer based on said spot panchnama

has misdirected itself. Apart from above, it is

required to be noted that PW-2 was riding bicycle

ahead of bicycle of the deceased Pramod. As such,

from the evidence as is available of the said

witness, it cannot be inferred that he is eye

witness to the incident. At the most, it could be

inferred that he was a eye witness to the incident

of making statement that accused was riding motor

cycle on wrong side of the road.

12. In my opinion, having regard to the fact

that deceased was driving bicycle and PW-1 was

pillion rider, there were chances of loss of

balance appears to be highly probable, which is

rightly considered and inferred by the learned

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Magistrate. It has also come on record that while

riding bicycle by deceased along with PW-1, PW-2

and other persons were also riding bicycle in the

group of four bicycles.

In view thereof, probability of happening

of the incident of accident because of group

driving of bicycles cannot be ruled out.

13. It is then to be noted that though it is

claimed by PW-9 that he has issued requisition to

Tahsildar requesting for drawing panchnama,

however, neither such requisition nor any spot

panchnama or map in question is placed on record,

is proved by adducing appropriate evidence.

14. In the aforesaid background, in my

opinion, the judgment and order of acquittal as is

recorded by learned Magistrate, does not call for

any interference. Before parting, it is worth to

infer that present one is fit case wherein

acquittal of the accused is based on faulty

investigation carried out by the Investigating

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Officer.

15. In view of above, the appeal preferred by

the State stands dismissed.

(N.W. SAMBRE, J.)

Tupe