Sanjay S/O Murlidhar Yede vs The State Of Maharashtra
2018 Latest Caselaw 747 Bom

                                                           Cri.Appeal 424/2003
                                     1

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     BENCH AT AURANGABAD

                       CRIMINAL APPEAL NO.424 OF 2003
                                    WITH
                    CRIMINAL APPLICATION NO.3434 OF 2016

Sanjay s/o Murlidhar Yede,
Age 23 years, Occu. Driver,
R/o Morgaon, Taluka and
District Beed                                       ..Appellant

        Versus

State of Maharashtra                                ..Respondent

Mr A.N. Nagargoje, Advocate for appellant
Mr R.V. Dasalkar, A.P.P. for respondent


                                    CORAM : A.M. DHAVALE, J.

                                    DATE    : 20.1.2018

ORAL JUDGMENT

1. This appeal is by the accused challenging his conviction under

Section 353 of Indian Penal Code and sentencing him to suffer

rigorous imprisonment for one year and to pay fine of Rs.3,000/-, in

default rigorous imprisonment for one month and to pay fine of

Rs.500/-, in default to suffer simple imprisonment for one month for

offence punishable under Section 179 of Motor Vehicles Act, passed

by learned IV Additional Sessions Judge, Beed in Sessions Case No.155

of 2002.

2. As per F.I.R. Exh.11, filed by P.W.1 Laxman, Assistant Traffic

Inspector, S.T. Department, Beed, on 20.1.2002 at 11.45 a.m. in Beed-

Manjarsumba ghat, he along with a team formed for checking illegal

transport of passengers was standing. That time, one jeep carrying

passengers came from Manjarsumba side. The police and members of

Cri.Appeal 424/2003

S.T. Department tried to halt it but the jeep driver did not halt the jeep

and straightway gave a dash to P.W.1 Laxman with intention to

commit his murder. P.W.1 Laxman sustained injuries to his hands and

legs and became unconscious. The police and his colleagues present

there brought him to the Civil Hospital at Neknoor and thereafter to

Civil Hospital, Beed. Accordingly, he lodged F.I.R. against the driver of

Marshal jeep No.MH-23-E-2009. The F.I.R. was registered under

Sections 307, 353, 279 of the Indian Penal Code and Sections 179,

177, 66, 192A of Motor Vehicles Act at C.R.No.8/2002. In

supplementary statement, he was shown a person as driver of the

said jeep and the accused was identified by him as driver of the jeep.

Thereafter, the police drew spot panchnama, recorded statement of

owner of the jeep and other witnesses present on the spot and after

completion of investigation, the charge-sheet was submitted in the

Court. In due course, learned IV Ad hoc Additional Sessions Judge,

Beed framed charge at Exh.5 for the above referred offences. The

accused pleaded not guilty. The prosecution examined nine witnesses.

It is defence of the accused that he was not driving the jeep. The

learned IV Additional Sessions Judge, Beed convicted the accused for

minor offence punishable under Section 353 of Indian Penal Code and

under Section 179 of Motor Vehicles Act and sentenced him to suffer

rigorous imprisonment for one year and to pay fine of Rs.3,000/-, in

default rigorous imprisonment for one month under Section 353 of

Indian Penal Code and to pay fine of Rs.500/- in default to suffer

simple imprisonment for one month under Section 179 of Motor

Vehicles Act. Hence, this appeal.

Cri.Appeal 424/2003

3. Mr Nagargoje, learned Counsel for the appellant argued that

the accused was not driving the said jeep, which was involved in

giving dash to P.W.1 Laxman. He argued that the only evidence in this

regard is of P.W.4 Mohan Rathod and P.W.7 Harihar Pathak. P.W.7

Harihar Pathak is owner of the jeep. He has turned hostile and has

not deposed anything against the accused. P.W.4 Mohan identified the

accused, but his evidence shows that he is not trustworthy and

reliable. It is inconsistent with the other evidence. The evidence of

rest of the witnesses does not show involvement of the appellant.

Hence, the appeal be allowed.

4. Per contra, learned A.P.P. Mr Dasalkar argued that the

Investigating Officer had made enquiry with P.W.7 Harihar. That time

P.W.7 Harihar had disclosed the name of the appellant and had also

produced copy of driving licence of the appellant. Therefore, the said

evidence along with evidence of P.W.4 Mohan should be believed and

the conviction should be upheld.

5. The points for my consideration along with my findings are as

under:

(I)     Whether the accused intentionally
        gave dash of his jeep to P.W.1 Laxman
        while he was discharging his official
        duties ?                                       ..       Not proved


(II)    Whether the accused has willfully
        disobeyed the directions of the
        authorities and thereby committed
        offence under Section 179 of the
        Motor Vehicles Act ?                           ..       Not proved




                                                            Cri.Appeal 424/2003




(III)   What order ?                                The Appeal is allowed
                                                    The conviction and
                                                    sentence is set aside


                               - REASONS -

6. The prosecution has examined nine witnesses. P.W.1 Laxman is

the injured witness and the informant. P.W.2 Pralhad, Assistant Traffic

Inspector, P.W.3 Vishnu, Head Constable and P.W.4 Mohan Rathod,

Police Constable were members of the team which was checking the

vehicles at Manjarsumba chowk at the relevant time. All of them

deposed that one Marshal Jeep bearing registration No.MH-23-

E-2009 came from Manjarsumba side and the team members gave

signal to stop the vehicle, but the driver did not stop the vehicle.

When P.W.1 Laxman tried to stop the vehicle, there was deliberate

dash of the jeep to him and the jeep proceeded ahead. He had

sustained serious injuries to his knee and due to the dash, he became

unconscious. He stated that he was first taken to hospital at Neknoor

and thereafter to Civil Hospital at Beed. He has lodged F.I.R. Exh.11.

Subsequently, the accused was shown to him and he identified that he

was the driver of the jeep, which gave dash to him. The material part

of his evidence is that he has admitted that he had not seen the

accused prior to the incident. He had not seen the driver of the

vehicle. His rest of the evidence is not under challenge.

7. P.W.2 Pralhad and P.W.3 Head Constable Vishnu have deposed

similarly and have given similar admissions that they had not seen the

driver of the jeep at the time of incident. P.W.4 Police Constable

Cri.Appeal 424/2003

Mohan Rathod has also deposed the incident as per evidence of P.W.1

to 3 but he stated that he had seen that the accused was driving the

said jeep. In cross-examination, P.W.4 Mohan has stated that he had

disclosed to P.W.1 Laxman about the name of the accused before

lodging of the F.I.R., but name of the accused is not there in the F.I.R.

His evidence that at the time of lodging of F.I.R., the jeep was parked

at the police station, Neknoor is contrary to the evidence of

Investigating Officer, who has stated that the jeep was subsequently

attached.

8. P.W.5 Devidas is Head Constable, who has recorded the F.I.R.

Exh.11. His evidence is not material. P.W.6 Jalindar Rasal is a panch

witness. He has turned hostile. He has merely admitted his signature

on spot panchnama Exh.20. P.W.7 Harihar is the owner of the jeep.

He denied that he had employed the accused as a driver of the said

jeep. Learned A.P.P. cross-examined him with the permission of the

Court, but he has given no admissions.

9. P.W.8 Medical Officer Veer has deposed that on 20.1.2002, at

1.30 p.m.,he examined P.W.1 Laxman and noticed following injuries

on his person:

(1) Abrasion on left side of left knee joint, 3 x 1 cm irregular in shape;

(2) Swelling on the right wrist joint

He suspected fracture at injury no.2. He did not take X-rays in

respect of injury no.2. The certificate issued by him is at Exh.28.

Cri.Appeal 424/2003

10. P.W.9 A.P.I. Ashok Amle has carried out the investigation. He

has deposed about the investigation. He admitted that the informant

was not knowing the name of the accused at the time of lodging of

F.I.R. He had not held identification parade.

11. After carefully considering the evidence on record, I find that

there is no dispute that P.W.1 Laxman was discharging his duties of

checking vehicles with regard to illegal trafficking and at that time a

jeep gave him deliberate dash and he sustained injuries. The injuries

were not of serious nature so as to attract the punishment under

Section 307 of Indian Penal Code.

12. I, however, find that there is no evidence to show that the

accused was driver of the said jeep. The jeep was not belonging to

him. It was belonging to P.W.7 Harihar. P.W.7 Harihar has turned

hostile. The identification by P.W.4 Mohan is not reliable. His

evidence that he had disclosed the fact to the informant before

lodging F.I.R. is falsehood. Considering all the facts, the convictions

under Section 353 of Indian Penal Code and Section 179 of Motor

Vehicles Act is not sustainable. Hence, the order:

- ORDER -

(I)     The Criminal Appeal is allowed.


(II)    The Judgment delivered by learned IV Additional Sessions Judge,

Beed in Sessions Case No.155 of 2002 convicting the appellant under

Section 353 of Indian Penal Code and sentencing him to suffer

Cri.Appeal 424/2003

rigorous imprisonment for one year and to pay fine of Rs.3,000/-, in

default to suffer rigorous imprisonment for one month, and to pay fine

of Rs.500/- in default to suffer simple imprisonment for one month, for

offence punishable under Section 179 of Motor Vehicles Act, is hereby

set aside.

(III) Fine amount, if deposited by the appellant, be refunded to him.

His bail bonds stand cancelled.

(IV) In view of disposal of Criminal Appeal, Criminal Application

No.3434 of 2016 stands disposed of.

( A.M. DHAVALE, J.)

vvr