Bombay High Court
Chandrasen S/O Chindhuji Dongre vs State Of Mah. Thr. Pso Ps Pulgaon ... on 25 November, 2021
Bench: V. G. Joshi
36.apeal.482.21 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Criminal Appeal No.482 of 2021
Chandrasen s/o Chindhuji Dongre
vs.
The State of Maharashtra, through P.S.O. Pulgaon, District Wardha
with
Criminal Appeal No.483 of 2021
Lata Eknathrao Tembhurne @ Lata Chandrasen Dongre
vs.
The State of Maharashtra, through P.S.O. Pulgaon, District Wardha
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
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Shri Anil S. Mardikar, Senior Advocate assisted by
Shri V.R. Deshpande, Advocate for the Appellant.
Shri S.M. Ghodeshwar, A.P.P. for the Respondent/State.
CORAM : VINAY JOSHI, J.
DATE : 25th NOVEMBER, 2021.
Criminal Appeal No.482 of 2021:
Heard.
02] Admit.
03] Issue notice to the respondent/State. The learned
A.P.P. waives notice on behalf of the respondent/State.
04] Call for records and proceedings.
Criminal Appeal No.483 of 2021
Heard.
02] Admit.
03] Issue notice to the respondent/State. The learned
A.P.P. waives notice on behalf of the respondent/State.
04] Call for records and proceedings.
36.apeal.482.21 2/4
Criminal Application [APPA] No.655/2021 in
Criminal Appeal No.482/2021
&
Criminal Application [APPA] No.656/2021 in
Criminal Appeal No.483/2021:
These applications are for seeking suspension of
execution of substantive sentences passed by the Additional
Sessions Judge, Wardha in Sessions Case No.107/2015 vide
judgment and order dated 18/11/2021. The applicants/
appellants (Accused Nos.3 & 4) are convicted by the trial Court for
the offence punishable under Section 304 Part-II read with Section
34 of the Indian Penal Code and sentenced to suffer rigorous
imprisonment for ten years along with fine of Rs.50,000/- each
with default clause. Both applicants are seeking suspension by
contending that the impugned judgment is erroneous. The trial
Court without evidence held that the applicants have committed
charged offence of homicidal death not amounting to murder.
02] Heard both the sides. With the assistance of both the
sides, perused the impugned judgment and the evidence recorded
during the trial.
03] In all, four accused were put on trial for the offence
punishable under Sections 304 of the Indian Penal Code along
with some other offences under the Indian Penal Code and the
Motor Vehicles Act. It emerges from the record that applicant-
Chandrasen (Accused No.3) was a trustee, whose management
was running a school and applicant-Lata (Accused No.4) was the
owner of a van. The said van was driven by original accused No.1-
Nilesh to ply minor children along with two teachers from
residence to the school run by the management. While, the van
36.apeal.482.21 3/4
was proceedings towards the school, it gave a dash to a stationary
truck, which was parked by original accused No.2-Mohd. Salim.
04] The prosecution case, in nutshell, is that accused No.1-
Nilesh, without having valid motor driving licence, though not
sufficiently skilled, drove van and rammed on a stationary truck
carelessly parked by accused No.2 and, therefore, caused death of
two school going children in the occurrence. Accused Nos.3 & 4,
who are the applicants, were charged for gross negligence coupled
with knowledge of likely result of their act. It is the prosecution
case that accused No.3-Chandrasen, who is a trustee, was well
aware about the inability of driver Nilesh and the worse condition
of the van, while directing him to ply the children. Similar is the
charge against accused No.4-Lata in the capacity of the owner of
the van. It is the prosecution case that by permitting unskilled and
unlicenced person to drive a van without safety gadgets, they have
caused loss of life. The act of accused-applicants permitting to do
so, was with a knowledge that their act is likely to cause death
and, therefore, the charge.
05] The learned Senior Counsel appearing for both
applicants submitted that there cannot be a vicarious liability
against these applicants. There is no material to constitute that
the applicants had sufficient knowledge that their act may result
into the death. It is the applicants' stand that at the most it is a
case of negligence. According to him, even by any stretch of
imagination, the applicants' knowledge about likelihood of causing
death cannot be construed. The learned A.P.P. opposed the
applications by taking me through certain paragraphs of the
judgment. Admittedly, as per the prosecution case, accused No.1-
Nilesh drove the van in reckless manner, which proved to be fatal.
36.apeal.482.21 4/4
These applicants were not present at the time of occurrence.
Whether permitting unlicenced person to drive resulting into an
accident can ipso facto constitute a knowledge regarding
likelihood of result requires consideration. Undoubtedly, the
applicants have made out a strong arguable case on merits.
06] During trial, the applicants were on bail and post
conviction, they have deposited entire fine amount. In case the
applicants succeed in their respective appeals, then the position
would be irreversible, if they remain to be under trial prisoners.
The appeals will take its own time for disposal according to law.
Having regard to the peculiar facts of this case, the applicants have
made out a case for suspension of sentence.
07] In view of that, both applications are allowed. The
execution of substantive sentences passed in Sessions Case
No.107/2015 by the learned Additional Sessions Judge, Wardha
vide judgment and order dated 18/11/2021 is hereby suspended
to the extent of the applicants viz. Chandrasen and Lata, till final
disposal of the appeals. In the meantime, applicant-Chandrasen
and applicant-Lata be released on bail on their furnishing P.R.
Bond in the sum of Rs.50,000/- with sureties of the like amount
each.
JUDGE
*sandesh
