The State Of Maharashtra vs Shri Prithviraj Daulati Deokar
2017 Latest Caselaw 2391 Bom

                                            1/6                         205-apeal.609.1999.doc


nsc.
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CRIMINAL APPELLATE JURISDICTION

                                 CRIMINAL APPEAL NO.609 OF 1999


       The State of Maharashtra                                  ...Appellant
                                                                 (Orig. Complainant)

                Versus

       Prithviraj Daulati Deokar
       Age 42, R/o. Vetane,                                      ...Respondent
       Tal. Khatav, District - Satara.                           (Orig. Accused)




       Mr.S.S.Hulke, A.P.P. for the Appellant - State.

       None for the Respondent.



                                     CORAM : REVATI MOHITE DERE, J.

DATE : 8th MAY, 2017

ORAL JUDGMENT :

1. This appeal, preferred by the appellant - State of Maharashtra

is directed against the Judgment and Order dated 29th June, 1999, passed by

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the learned Judicial Magistrate First Class, Koregaon, in Summary Criminal

Case No.1028 of 1996 acquitting the respondent-accused of the offences

punishable under Sections 279, 337, 338, 304-A, 427 of the Indian Penal

Code and under Section 184 of the Motor Vehicles Act.

2. The respondent-accused was driving a tempo bearing No.

MH-11 2514, on the date of the incident i.e. on 18 th November, 1996.

According to the prosecution, at about 11.15 a.m., the said tempo collided

with a motorcycle on a public road (Pusegaon to Koregaon), pursuant to

which, the motorcyclist suffered injuries and expired. The pillion rider on

the motor cycle is also stated to have received injuries. Pursuant thereto, a

case was registered as against the respondent-accused. The police drew

inquest panchanama, spot panchanama, recorded the statements of the

witnesses etc., and after investigation filed a charge-sheet. According to the

prosecution, on account of the rash and negligent act of the respondent-

accused, the accident took place, in which the motorcyclist received injuries

and succumbed to the same.

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3. The respondent-accused pleaded not guilty and claimed to be

tried. According to the respondent - accused, he was not driving the tempo

in a rash and negligent manner and that it was the deceased who was riding

the motorcycle, rashly and negligently, pursuant to which he collided with

the tempo. The prosecution in support of its case examined 3 witnesses,

PW1- Mukund Ramchandra Deokar, who was the cleaner of the tempo;

PW2-Nitin Shridhar Chinchkar, who was riding pillion on the motorcycle

of the deceased; and PW3-PSI Kundlik Gulab Waghmare, the Investigating

Officer. After carefully going through the evidence on record, the learned

Judge was pleased to acquit the respondent-accused of all the offences.

4. Perused the evidence on record as well as the impugned

Judgment. The learned Judge has rightly observed that there is discrepancy

and variance in the evidence of PW1- Mukund and PW2-Nitin.

Considering their evidence, the learned Judge observed, that the

motorcyclist (deceased) was at fault, as a result of which the incident took

place.

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5. PW1- Mukund Ramchandra Deokar was the cleaner of the

tempo. He has stated that on 18th November, 1996, they left Koregaon at

around 11.00 a.m. towards Pusegaon. He has stated that the accident had

taken place at some distance ahead of Kumathe 'T' square and near the

bridge. He has stated that their vehicle was overtaking a tractor, when one

Suzuki Motorcycle came from the opposite direction and collided with their

tempo. He has stated that the motorcyclist received injuries, pursuant to

which, he was taken to the hospital. In his cross-examination the said

witness has admitted that the driver of the tempo i.e. the respondent-

accused had shown the headlights and had intimated the vehicle coming

from the opposite direction, that he wanted to overtake. He has further

admitted that the motorcycle came in a high speed and collided with the

tempo, and that the rider of the motorcycle could not control his vehicle.

The evidence of PW2-Nitin Chinchkar, a pillion rider on the motorcycle of

the deceased has deposed that he and deceased - Dhananjay left home, at

around 9.00 a.m. on the day of the incident. He has stated that he was riding

pillion on the said vehicle, when the incident took place. He has stated that

they noticed a tractor coming from a opposite direction and that there was

no third vehicle proceeding towards Satara. He has stated that the spot,

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where the incident took place, was a straight road. He has further stated

that the tractor and the tempo were coming in succession from the opposite

direction and that the tempo driver overtook the tractor and collided with

their motorcycle. He has stated that he was thrown off from the bike,

pursuant to which, he became unconscious and regained consciousness at

the hospital, whereas the deceased - Dhananjay died on the way to the

hospital. The said witness in his cross-examination has admitted that they

had noticed that the tempo was going to overtake the truck. He has further

admitted that the tempo had already crossed some distance, after having

overtaken the tractor and that they had noticed the tempo from a distance of

100 feet.

6. A perusal of the evidence of PW1-Mukund and PW2-Nitin

shows that none of the said witnesses have stated that the respondent-

accused was driving the tempo, either rashly or negligently. To sustain a

conviction under Section 304-A, it is incumbent on the prosecution to

prove, the same. In the present case, the said evidence is amiss. Neither, in

the facts, the principle of res ipsa loquitur can be said to be applicable.

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7. Considering the evidence on record, the learned Judge after

evaluating the same, has rightly acquitted the respondent-accused. The

impugned Judgment can neither be said to be perverse nor unsustainable.

Hence, no interference is warranted in the same.

8. Accordingly, the appeal is dismissed.

(REVATI MOHITE DERE, J.)