Bombay High Court
Ramkishor Gangaram Pandhro vs The State Of Maharashtra on 21 September, 2017
Bench: A.M. Badar
907-APPEAL-260-2013-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.260 OF 2013
RAMKISHOR GANGARAM PANDHRO )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mr.Yashpal Thakur, Appointed Advocate for the Appellant.
Mr.S.V.Gavand, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 21st SEPTEMBER 2017
JUDGMENT :
1 By this appeal, the appellant / accused is challenging
the judgment and order dated 8th January 2013 passed by the
learned Ad-hoc Additional Sessions Judge-3, Thane, in Sessions
Case No.355 of 2011, thereby convicting him of offences
punishable under Sections 279 and 304(Part II) of the Indian
Penal Code (IPC) as well as under Sections 85 and 185 of the
Motor Vehicles Act. For the offence punishable under Section 279
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of the IPC, he is sentenced to suffer rigorous imprisonment for 3
months with a direction to pay fine of Rs.500/- and in default, to
undergo simple imprisonment for 15 days. For the offence
punishable under Section 304 (Part II) of the IPC, the appellant /
accused is sentenced to suffer rigorous imprisonment for 5 years
apart from direction to pay a fine of Rs.1,000/- and in default, to
undergo rigorous imprisonment for 1 month. For the offence
punishable under Section 85 of the Motor Vehicles Act, he is
directed to pay fine of Rs.500/- and in default, to undergo simple
imprisonment for 15 days. For the offence punishable under
Section 185 of the said Act, he is sentenced to suffer simple
imprisonment for 1 month.
2 Facts in nutshell leading to the prosecution of the
appellant / accused are thus :
(a) The appellant / accused was working as a cleaner on a bus
bearing no.MH-04-G-7661 owned by PW10 Travera Nurvas Britto.
On 14th April 2011, at about 10.45 p.m., according to the
prosecution case, the appellant / accused under influence of
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alcohol drove the said bus in high speed as well as in rash and
negligent manner, without taking due care of the condition of the
road as well as the traffic. His act was rash and negligent as to
endanger human life and personal safety of others. In the process
of driving the said bus under influence of alcohol, he caused death
of a pedestrian named Razia Majid Chaudhary by giving dash of
the said bus and injured PW6 Pushpa Bhatt. The incident was
witnessed by PW1Deepak Kataria (First Informant), PW3 Dashrath
Shingane, PW4 Mukesh Sohni, PW5 Yunus Shaikh and PW6
Pushpa Bhatt. All these eye witnesses as well as other persons
present at Jaisal park Chowpatty apprehended the appellant /
accused on the spot itself and gave him in custody of police.
(b) Police then sent the appellant / accused for medical
examination to Municipal Hospital, Borivali, where he was
examined by PW11 Dr.Prabhakar Sagaonkar. The bus driven by
the appellant / accused came to be examined by Inspector of the
R.T.O. - PW8 Rajendra Patole.
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(c) Police collected report of postmortem examination of Razia
Chaudhary, so also papers of medical treatment of PW6 Pushpa
Bhatt. On completion of investigation, the appellant / accused
was charge-sheeted.
(d) In order to bring home the guilt of the appellant / accused,
the prosecution has examined in all eleven witnesses. The
defence of the appellant / accused seems to be that of total denial.
However, he did not enter in the defence.
(e) The learned trial court by the impugned judgment and order
dated 8th January 2013 was pleased to convict the appellant /
accused of offences punishable under Sections 279 and 304 (Part
II) of the IPC as well as for those punishable under Sections 85
and 185 of the Motor Vehicles Act. He was sentenced accordingly.
Feeling aggrieved by the said judgment and order, this appeal.
3 I have heard Shri Yashpal Thakur, the learned advocate
appointed for the appellant / accused. He argued that evidence of
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record does not show that the appellant / accused is guilty of any
rash and negligent driving, endangering human life or personal
safety. He further argued that the offence punishable under
Section 304 (Part II) is not made out by the prosecution as
evidence on record does not suggest that the act alleged against
the appellant / accused was committed by him with a knowledge
that it is likely to cause death of a human being. It is further
argued that there is no evidence on record to show that the
appellant / accused had driven the bus in question without
holding a valid driving license. Therefore, the appellant / accused
deserves acquittal.
4 I have also heard the learned APP, who supported the
impugned judgment and order and argued that the appeal is
devoid of merits.
5 I have carefully considered the rival submissions and
also perused the record and proceedings including the evidence -
oral as well as documentary - adduced by the prosecution.
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6 As stated in foregoing paragraphs, PW1 Deepak
Kataria, PW3 Dashrath Shingane, PW4 Mukesh Sohni and PW5
Yunus Shaikh are eye witnesses to the incident in question. PW6
Pushpa Bhatt is the injured witness and as such, one of the victims
of the crime in question. Congruous evidence of PW1 Deepak
Kataria, PW3 Dashrath Shingane,PW4 Mukesh Sohni and PW5
Yunus Shaikh shows that the incident took place at about 10.45
p.m. of 14th April 2011 at Jaisal park Chowpatty. Evidence of all
these witnesses goes to show that it was the appellant / accused
who was driving the bus bearing registration no.MH-04-G-7661.
In unison, all these four eye witnesses have deposed that the
appellant / accused drove the bus in zigzag manner and at high
speed. He lost control over the bus at the turning and entered in
Jaisal park chowpatty, where pedestrians were taking walk. Eye
witnesses have stated that the bus came from fisherman's chawl
towards Jaisal park and after losing control over the steering
wheel, the bus driven by the appellant / accused ran over
pedestrian Razia Chaudhary and dashed PW6 Pushpa Bhatt.
Evidence of these eye witnesses is consistent to the effect that the
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bus driven by the appellant / accused gave dash to a tree and
thereafter it dashed a wall and iron barricade and it stopped only
after giving a dash to a wall.
7 As per version of PW1 Deepak Kataria, PW3 Dashrath
Shingane, PW4 Mukesh Sohni and PW5 Yunus Shaikh, the
appellant / accused who was driving the bus at the time of the
incident in question came to be apprehended on the spot itself
while he was attempting to flee. He was found to have consumed
alcohol. Then, he was given in custody of police.
8 There is nothing in cross-examination of all these
witnesses to disbelieve the mode and manner of the incident
stated by them in their chief-examination. Evidence of all these
witnesses reveals that bus was being driven in high speed as well
as in a zigzag manner. While taking a turn on the road, because of
losing the control of the appellant / accused, it entered in the
Chowpatty area where Razia Chaudhary came to be run over by
the said bus and PW6 Pushpa Bhatt came to be injured on being
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dashed by it. Negligence is a breach of duty and lack of proper
care in doing something. It is want of attention and doing of
something which a prudent man would not do. Criminal
negligence is gross and culpable negligence upon failure to
exercise reasonable and proper care which was imperative duty of
the accused to have exercised. In the case in hand, eye witnesses
who had an occasion to see the appellant / accused on the spot
immediately after the incident are stating that he was under
influence of liquor having consumed alcohol. PW11 Dr.Prabhakar
Sagaonkar had examined the appellant / accused immediately
after the incident. This Medical Officer has deposed that pupils of
the appellant / accused were found dilated, his co-ordination was
poor and his mouth was smelling alcohol. This evidence is
sufficient to hold that the appellant / accused had consumed
alcohol while driving the bus in an area having heavy traffic at
Mumbai. Then, the eye witnesses are stating that the appellant /
accused was driving the bus in high speed as well as in zigzag
manner because of which on turn of the road, he lost control and
entered Jaisal park chowpatty. The defence has not disputed the
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report of postmortem examination of Razia Chaudhary which
showed that she died because of polytrauma caused due to the
vehicular accident. Similarly, evidence of PW6 Pushpa Bhatt - an
injured witness shows that she sustained injury on her left leg
because of dash of the bus. This witness has also deposed about
driving of the bus by the appellant / accused in high speed and its
dash to deceased Razia Chaudhary as well as to a tree and wall.
Evidence of this witness shows that she attempted to flee from the
spot on seeing the bus coming in her direction, but she could not
escape from the dash.
9 The bus in question came to be examined
mechanically after the incident by PW8 Rajendra Patole, Inspector,
working with the R.T.O.Thane. His evidence shows that upon
examination of the bus bearing registration no.MH-04-G-7661, he
did not notice any mechanical or technical defect in the bus. This
witness found the brakes of the bus in order. Evidence of this
witness corroborates evidence of eye witnesses and indicates that
the incident did not happen because of any mechanical or
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technical defect in the bus. It, thus, makes it clear that, the
incident was a fall out of overt act of the appellant / accused.
10 This is the evidence adduced by the prosecution in
respect of the mode and manner of the incident as well as
consequence of the incident which resulted in death of Razia
Chaudhary and injury to PW6 Pushpa Bhatt. As the appellant /
accused is charged for the offence punishable under Section
304(Part II) of the IPC, it is apposite to quote observations of the
Hon'ble Apex Court in the matter of Alister Anthony Pareira vs.
State of Maharashtra reported in AIR 2012 SC 3802.
Paragraphs 41, 42 and 66 of this need reproduction and they read
thus :
"41. A person, responsible for a reckless or rash or
negligent act that causes death which he had
knowledge as a reasonable man that such act was
dangerous enough to lead to some untoward thing
and the death was likely to be caused, may be at-
tributed with the knowledge of the consequence
and may be fastened with culpability of homicide
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not amounting to murder and punishable under
Section 304 Part II IPC.
42. There is no incongruity, if simultaneous with
the offence under Section 304 Part II, a person who
has done an act so rashly or negligently endanger-
ing human life or the personal safety of the others
and causes grievous hurt to any person is tried for
the offence under Section 338 IPC.
66. We have also carefully considered the evidence
let in by prosection - the substance of which has
been referred to above - and we find no justifiable
ground to take a view different from that of the
High Court. We agree with the conclusions of the
High Court and have no hesitation in holding that
the evidence and materials on record prove beyond
reasonable doubt that the appellant can be attrib-
uted with knowledge that his act of driving the ve-
hicle at a high speed in the rash or negligent man-
ner was dangerous enough and he knew that one
result would very likely be that people who were
asleep on the pavement may be hit, should the ve-
hicle go out of control. There is a presumption that
a man knows the natural and likely consequences
of his acts. Moreover, an act does not become invol-
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untary act simply because its consequences were
unforeseen. The cases of negligence or of rashness
or dangerous driving do not eliminate the act being
voluntary. In the present case, the essential ingredi-
ents of Section 304 Part II IPC have been success-
fully established by the prosecution against the ap-
pellant. The infirmities pointed out by Mr. U.U.
Lalit, learned senior counsel for the appellant,
which have been noticed above are not substantial
and in no way affect the legality of the trial and the
conviction of the appellant under Section 304 Part
II IPC. We uphold the view of the High Court being
consistent with the evidence on record and law."
11 Viewed in the light of these observations of the
Hon'ble Apex Court, it is not possible to find fault with the
conviction of the appellant / accused for the offence punishable
under Section 304 (Part II) of the IPC for causing death of Razia
Chaudhary by giving dash of bus driven by him to her. Ultimately,
the appellant / accused had driven that bus to Jaisal Park
Chowpatty area of Mumbai, meant for pedestrians, by driving his
bus in high and uncontrollable speed. He was very much knowing
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the consequence of his act of driving the bus in high speed and in
uncontrollable manner. It cannot be said that the appellant /
accused was not knowing that the act of driving the bus without
even having driving license and that too on consuming alcohol is
not dangerous enough to cause untoward events and likely to
cause death of a human being because of dash of that vehicle.
Thus, from proved facts and circumstances, it is established that
the appellant / accused was having knowledge that by his act in
driving the bus at high and uncontrollable speed, after consuming
alcohol, there is every likelihood of causing death of Razia
Chaudhary. Ultimately, this eventuality happened as the bus
driven by the appellant / accused had run over Razia Chaudhary
causing her death due to polytrauma. Hence, the offence
punishable under Section 304 (Part II) of the IPC is proved against
the appellant / accused.
12 Evidence on record, thus, establishes that the appellant
/ accused had driven the bus in such a manner - rashly as well as
negligently, so as to endanger human life and personal safety to
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others. Consequent result followed because of death of Razia
Chaudhary and injuries to PW6 Pushpa Bhatt in the incident in
question.
13 Eye witnesses account of the incident shows that it
was the appellant / accused who was driving the bus bearing
registration no.MH-04-G-7661. Evidence of its owner PW10
Travera Britto shows infact the appellant / accused was employed
as a cleaner on that bus. Whether the appellant / accused was
holding valid driving license to drive a bus or not is a fact which
was especially within the knowledge of the appellant / accused.
As such, the burden shifted on the appellant / accused to prove
that he was driving the bus under valid driving license. The
appellant / accused has failed to discharge this burden and
therefore, the prosecution has proved contravention of provision
of Section 3 of the Motor Vehicles Act punishable under Section 85
thereof. Similarly, the prosecution has also proved through eye
witness account that the appellant / accused drove the bus in high
and excessive speed without considering the condition of road as
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well as traffic. Offence punishable under Section 185 of the Motor
Vehicles Act is duly established from evidence of the prosecution.
14 In the result, the appeal fails, and the same is
dismissed.
(A. M. BADAR, J.)
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