State Of Maha vs Bandusing Rahusing Rathod
2018 Latest Caselaw 734 Bom

                                   1                             Cri.Al.-362-04



            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                      CRIMINAL APPEAL NO. 362 OF 2004


 The State of Maharashtra
 Through PHC V. No. 1053
 Shankar Hiraji Nikumbhe,
 City Police Station, Dhule.
 PSO City Police Station, Dhule.              ..        Appellant
                                                      (Original Complainant)
                  Versus

 Bandusing Rahusing Rathod,
 Age 48 years, Occu. Service,
 R/o. Mehindale Shivar,
 Hipass Road, SRPF Bldg.
 No. 7, Room No.1.                            ..     Respondents
                                                    (Original Accused)

                                      ...
 Mr. R. B. Bagul, APP for Appellant.
 Mr. Chaitanya C. Deshpande h/f. Mr. C. R. Deshpande, Advocate for
 Respondent sole.
                                     ...

                                       CORAM : K.K. SONAWANE, J.

DATED : 20th JANUARY, 2018.

JUDGMENT :-

1. The appellant - State of Maharashtra preferred the present

appeal under Section 378 of the Criminal Procedure Code (for short

"Cr.P.C.") against the impugned judgment and order of acquittal of

respondent-original accused for the offence punishable under Sections

279, 337, 338 and 457 of Indian Penal Code (for short "IPC") read with

Sections 184 and 181 of Motor Vehicles Act, 1988 (for short "M.V.Act.")

in Summary Criminal Case No. 1247 of 2002 dated 10 th February 2004.

2 Cri.Al.-362-04

2. It has been alleged on behalf of prosecution that on 29-05-2001

the first informant Shakil Mohamad Vazir Ansari and his friend Abdul

Latif Abdul Bari Ansari were proceeding on their vehicle Luna Moped

bearing registration MHS-98 from Dhule-Sakri road. When they

reached in front of Pingale School on the road leading from Dhule to

Sakri, that time one motor bike bearing registration No. MH-18-C-6591

came speedily from the opposite direction. The respondent-accused

was driving the motor bike in a very rash and negligent manner and

gave dash to Luna moped of the first informant- Shakil Mohamad. The

first informant Shakil Mohamad and his friend Abdul Latif, who was

pillion rider, both were sprawled on the ground. The pillion rider Abdul

Latif sustained fracture injury on his right leg. He was immediately

escorted to the Government Civil Hospital for medical treatment. The

first informant- Shakil Mohammad filed the report of accident to the

concerned police of City Police Station, Dhule. Pursuant to report, the

inquiry was initiated to ascertain cause of accident by taking entry in

the station diary vide accident report No. 37 of 2001. The police

personnel Shri. Nikumbhe rushed to the scene of occurrence and drawn

panchnama of spot in presence of panchas. It was transpired that the

accused-respondent was driving his motor bike in a rash and negligent

manner on a public road so as to endanger to the life and safety of

persons. Therefore, the Police Head Constable Shri. Nikumbhe filed the

First Information Report (FIR) on behalf of prosecution and set the

penal law in motion. The alleged accused was the police personnel

employed as PSI in State Reserve Police Force, Dhule. Therefore, the

investigation was entrusted to the senior police personnel Shri. U.M.

                                       3                                Cri.Al.-362-04

 Dhobi.      He recorded statement of witnesses acquainted with facts of

 the case.        The Investigation Officer collected relevant documents of

medical certificate, etc. After completion of investigation, he preferred

chargesheet against the accused before the learned Magistrate, Dhule.

3. After compliance of procedural formalities, the learned

Magistrate framed the charge against the respondent-accused. He

denied the charge and claimed for trial. The prosecution examined in

all seven witnesses in this case to bring home guilt of the accused.

Learned Magistrate appreciated entire facts and circumstances in the

light of evidence adduced on record and arrived at the conclusion that

the prosecution failed to prove the charge of rash and negligent driving

on the part of respondent-accused. It was also concluded that driving

of the vehicle was not so endanger to the life and personal safety of the

others. There was no mischief causing damage to the property. In

such circumstances, the learned Magistrate exonerated the respondent-

accused for the allegations nurtured on behalf of prosecution and

passed impugned judgment and order of acquittal which is the subject

matter of the present appeal.

4. In order to bring home guilt of the accused, prosecution

examined injured P.W.No.1 Abdul Latif Abdul Bari Ansari. He has

sustained fracture injury to his right leg during the mishap. The

P.W.No.1 deposed that on 29-05-2001 in the wee-hours of the night at

about 10.00 p.m. he and his brother Shakil Mohamad had been to

Moglai area on Luna Moped. When they were proceeding from Dhule-

Sakri road, that time one motor bike came speedily from the opposite

direction and gave dash to their Luna Moped. His brother Shakil

4 Cri.Al.-362-04

Mohamad was driving Luna Moped, whereas, he was pillion rider. Due

to dash by the motor bike of the accused, they both fallen on the

ground. He sustained fracture injuries to right leg. Thereafter, he was

escorted to the hospital for medical treatment.

5. The P.W.No.2 Shakil Mohamad stepped into shoe of

P.W.No.1 Abdul Latif and stated the similar facts of occurrence of the

mishap due to dash to his Luna moped by the motor bike of the

respondent-accused. He stated that the pillion rider Abdul Latif

received fracture injury to his right leg. Thereafter, he was admitted in

the Government Hospital for medical treatment. The P.W.No.2 Shakil

Mohamad filed report to the police about occurrence of accident on the

public thoroughfare leading from Dhule to Sakri town.

6. The prosecution made an abortive attempt to adduce the

evidence of P.W.No.3 Sayyad Ajgar Ali and P.W.No.4 Ravindra

Saindane, who were the panch witnesses of spot panchnama recorded

by the P.W.No.6 P.H.C. Nikumbhe. These panchas received an

opportunity to witness the alleged incident of accident occurred at the

relevant time on Dhule-Sakri road in Moglai area resulting into fracture

injury to pillion rider Abdul Latif. But, P.W.No.3 Sayyad Ajgar Ali and

P.W.No.4 Ravindra Saindane made volte-face and refused to nod in

favour of prosecution. They were declared hostile and cross-examined

on behalf of prosecution. But the efforts did not evoke result to bring

on record any sort of incriminating circumstances for adverse

inferences against the accused.

5 Cri.Al.-362-04

7. The prosecution examined P.W.No.5 Dr. Bharat Gohil to prove

the injury certificate of the pillion rider P.W.No.1 Abdul Latif. The

injury certificate is at Exhibit-23. Admittedly, there was fracture injury

to the right leg of P.W.No.1 Abdul Latif.

8. The prosecution examined P.W.No.6 P.H.C Shankar Nikumbhe

and P.W.No.7 I.O. Ukhardu Dhobi to bring on record the circumstances

about investigation carried out in this crime. P.W.No.6 PHC- Nikumbhe

took the entry in station diary vide motor accident report No. 37 of

2001 and swung into action for inquiry to ascertain the cause of

accident. Thereafter, he preferred FIR (Exhibit-28) on behalf of

prosecution and set the penal law in motion against the respondent-

accused. The prosecution sanction was also obtained under section

197 of Cr.P.C. to proceed further against respondent-accused in this

matter, who was Government servant and employed as P.S.I. in

S.R.P.F. Dhule.

9. The overall scrutiny of the evidence adduced on record reflects

that the entire prosecution case is rests on the evidence of P.W.No.2

Shakil Mohamad, who was driving the Luna Moped and P.W.No.1

injured Abdul Latif, who was pillion rider to prove the factum of rash

and negligent driving of the motor bike involved in the accident. It is

to be noted that the alleged incident of accident in between motor bike

of accused-respondent and the vehicle Luna Moped driven by P.W.No.2

Shakil Mohamad was occurred on public thoroughfare abutting to the

shops and residential houses of denizens of Moglai area. The alleged

accident was occurred in the night hours at about 9.45 p.m. to 10.00

6 Cri.Al.-362-04

p.m. In the cross-examination, P.W.No.2 Shakil Mohamad and

P.W.No.1 Abdul Latif conceded that there was a dark at the relevant

time on the scene of occurrence. In such circumstances, it would

unsafe to draw inference that the alleged incident was caused only due

to rash and negligent driving of the accused-respondent. Moreover, in

absence of evidence of any independent eye-witness of the incident, it

would cumbersome to appreciate that there was no fault on the part of

P.W.No.2 Shakil Mohamad, who was driving Luna moped at the

relevant time of accident. It would be reiterated that the alleged

accident was occurred on the public thoroughfare having vehicular

traffic. The adjoining shop owners or denizens of the area must have

received opportunity to watch the incident. But, the prosecution did

not take endeavour to adduce evidence of any of these witnesses in

this case. The exact location of spot of accident also remained

unproved on behalf of prosecution. The panch witness of spot

panchnama P.W.No.3 Sayyad Ajgar Ali and P.W.No.4 Ravindra

Saindane turned hostile. In such circumstances, it would difficult to

determine the exact location of spot of incident to draw inference that

the offending vehicle was driven rashly and negligently by the accused

at particular point of time of incident.

10. It is the settled principle of law that the speed of the

vehicle could not be an decisive factor to arrive at the conclusion of

rash and negligent driving of offending vehicle. It is imperative for the

prosecution to prove that the alleged offending vehicle must have been

driven at a particular point of time of accident in a rash and negligent

manner on a public road so as to endanger human life or likely to be

7 Cri.Al.-362-04

caused hurt or injury to any other person. In the matter in hand, it has

been proved that the P.W.No.1 Abdul Latif received the fracture injury

to his right leg in the mishap occurred involving the vehicle Luna Moped

of P.W.No.2 Shakil Mohamad and motor bike of accused-respondent.

But, the circumstances available on record are not sufficient to arrive at

the conclusion that the accused had driven his motor bike in a rash and

negligent manner so as to endanger to the life of human being.

11. Admittedly, there was a dark on the spot at the time of

occurrence of alleged incident. The prosecution failed to prove the

exact location of the spot of accident to determine the factum of rash

and negligent driving by the accused. The vehicle Luna moped of the

P.W.No.2 Shakil Mohamad was the vehicle not ment for carrying pillion

rider. The P.W.No.1 Abdul Latif was pillion rider of the alleged

accident. He sustained fracture injury to his leg. The possibility of

occurrence of alleged accident due to fault on the part of P.W.No.2

Shakil Mohamad, driver of Luna moped could not be ruled out. These

circumstances created serious flaw in the prosecution case.

12. In view of aforesaid discussion, it is unjust and improper

to cause any interference in the findings of acquittal of accused

expressed by the learned trial Court. There is no impediment to hold

that the learned trial Judge has correctly appreciated the entire

evidence on record in its proper perspective. The conclusion drawn by

the learned trial Court to exonerate the accused for the charges pitted

against him appears just, proper and within purview of law. There is

no error or infirmity in the findings expressed by learned trial Court.

Absolutely, there is no iota of evidence in this case to bring home guilt

8 Cri.Al.-362-04

of the accused for the charges pitted against him. Therefore, the

circumstances do not permit to cause any interference in the impugned

judgment and order of acquittal passed by the learned trial court. In

contrast, it deserves to be made absolute and confirmed. Hence,

appeal being devoid of merit stands dismissed. No order as to the

costs.

Sd./-

[ K. K. SONAWANE ] JUDGE rrd.