The State Of Mah. Thr. Pso Nagpur vs Anchan Shripatrao Ganer
2017 Latest Caselaw 2642 Bom

                                                                                               CRI.APPEAL.63.04
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                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT NAGPUR, NAGPUR.
                                             ...

                              CRIMINAL APPEAL NO. 63/2004

          State of Maharashtra
          Through Police Station Officer
          P.S. Jaripatka, Nagpur.                                                              ..   APPELLANT 

                     v e r s u s

          Anchan  Shripatrao Ganer
          Aged  29 years, occu: Driver
          R/o  Plot No.514, 
          New Subhedar Layout
          Nagpur.                                                                              ... RESPONDENT

...........................................................................................................................
           Mr. V.P.Gangane,  Additional Public Prosecutor for  appellant-State
           None for the  respondent
............................................................................................................................

                                                     CORAM: MRS.SWAPNA JOSHI, J.

                                                     DATED:     29.05.2017

ORAL  JUDGMENT: 

1. This Appeal has been preferred against the judgment and order dated

7th October, 2003 delivered in Summary Criminal Case No.139/1999 (new) :

Summary Criminal Case No.393/1998(old), by the learned Judicial

Magistrate, First Class, Nagpur, thereby acquitting the respondent of the

offences punishable under sections 304-A and 427 of the Indian Penal Code.

2. Heard learned Additional Public Prosecutor for the appellant-State.

None appears for the respondent. I have gone through the record of the case

and the impugned judgment and order. The learned Additional Public

CRI.APPEAL.63.04

Prosecutor contended that the acquittal of the respondent recorded in this

case by the learned Magistrate, is perverse and illegal, inasmuch as he failed

to consider the testimony of the alleged eye witnesses who witnessed the

incident, so also he did not consider the evidence of injured witness PW4-

Kanchan Ramteke.

3. I have gone through the entire evidence. The prosecution examined in

all total of eight witnesses. PW 1-Sunderbai Waman Bhingane, is the

complainant who is the mother of the deceased, PW 2-Sangeeta, is the wife of

the deceased; PW 4-Kanchan Ramteke is the sister of the deceased and the

injured witness. These are the alleged eye witnesses. Apart from that, the

prosecution examined PW 3-Ramji Uike, PW 5 and PW 6-Sunil Kawre, on

the point of spot panchnama and inquest panchnama. The prosecution also

examined an independent witness PW 7-Vishwas Janbandhu, who did not

support the case of the prosecution.

4. The prosecution case, in brief, is that on 14.6.1998 at about 8.30 pm.

the complainant-Smt. Sundarbai Waman Bhingane lodged a report that a

vehicle i.e. Jeep bearing No. MH 31 G-7897 dashed her residential house by

rash and negligent driving. The said vehicle also dashed her son who was just

coming out of the house at the relevant time which caused his untimely

death. On the basis of the complaint, the offence was registered; the

investigation was carried out and the charge-sheet was filed by the

Investigating Officer in the learned Magistrate's court. The charge was

CRI.APPEAL.63.04

framed against the accused under sections 304A and 427 of the Indian Penal

Code. As stated supra, the prosecution examined in all eight witnesses.

5. I have gone through the entire evidence of the case. The testimony of

the PW 1-Sunderbai ie, mother of the deceased; PW 2-Sangeeta ie, wife of

the deceased and PW 4-Kanchan ie, the sister of the deceased is corroborated

on the material aspect that on 14.06.1998 at about 8.30 pm when the

deceased was near the front door of the residential house, one vehicle came

from the front side and dashed him and caused head injury and he died on

the spot. The said vehicle also damaged to the house of the deceased. The said

incident indicates that the driver of the offending vehicle drew the vehicle

rashly and negligently. It is not in dispute that the deceased was in front of his

house and just coming out of his house and at that time the vehicle dashed

him. The vehicle also caused damage to the house of the deceased. However

the question remains as to who was the author of the said injury. There is

absolutely no evidence on record to show that the accused was driving the

said vehicle and he caused injury to the deceased as well as damaged the

residential house. There is no evidence on record to show that the accused

was seen driving the said vehicle and he was accosted by either the alleged

eye witnesses or the people from the locality just after the incident.

Admittedly, the incident had taken place at night hours i.e 8.30 p.m. No

doubt, the witnesses identified the accused in the Court. However, so far as

the act of the accused i..e. driving the vehicle is concerned, none of the

CRI.APPEAL.63.04

witnesses throw any light on the said aspect. It is not the case of the

prosecution that the accused was known to the witnesses. Thus, the presence

of the accused on the spot while the act was committed is not proved by the

prosecution at all. Thus the identification of the accused and his presence at

the place of the incident is not established by the prosecution beyond

reasonable doubt. It is therefore doubtful whether the accused was driving the

said vehicle and he caused the accident. In these circumstances, it is held that

the prosecution has miserably failed to prove its case that on 14.06.1998 at

8.30 pm, the accused was driving the vehicle and due to his alleged rash

and negligent act he caused the death of the deceased and also damaged the

house. Thus, the view taken by the learned Magistrate is plausible.

6. It is well-settled principle of law that in exercise of its appellate

jurisdiction particularly in appeal against acquittal, it is not open to this court

to substitute its own view with the view taken by the lower court, unless the

view taken by the lower Court is illegal, perverse or against the principle of

law. No sufficient grounds are made out at the appellate stage so as to

interfere with the impugned judgment and order. In the circumstances of the

case, the Appeal deserves to be dismissed and it is dismissed accordingly.

JUDGE sahare