Bombay High Court
Durgesh S/O Bapu Shegamwar vs The State Of Mah. Thr. Pso Ps Jivati ... on 28 June, 2022
Bench: Avinash G. Gharote
35 REVN-105-2022.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL REVISION APPLICATION (REVN) NO.105 OF 2022
Durgesh s/o Bapu Shegamwar
..Versus...
The State of Maharashtra Through Police Station Police Station Jivati, Tah.
Jivti, Dist. Chandrapur
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Shri C.B. Barve, Advocate for Applicant
Shri A.R. Chutke, APP for the non-applicant/State
CORAM : AVINASH G. GHAROTE, J.
DATE : 23rd JUNE, 2022
1. Heard Shri Barve, learned Counsel for Applicant and
Shri Chutke, learned Additional Public Prosecutor for the
non-applicant/State.
2. The revision challenges the judgment dated
30.07.2015 in Summary Criminal Case No.833 of 2011,
whereby the learned Magistrate has convicted the
Applicant/Accused for the offence punishable under Section
279 of the Indian Penal Code, 1860 and sentenced him to
suffer rigorous imprisonment for three months and to pay a
fine of Rs.1,000/- (One Thousand Only), in default, undergo
rigorous imprisonment for 15 days and for the offence
35 REVN-105-2022.odt
punishable under Section 304-A of IPC, for which, he has been
sentenced to suffer rigorous imprisonment for one year and to
pay a fine of Rs.3,000/- (Three Thousand Only), in default, to
suffer rigorous imprisonment for one month and for the
offence under Section 134 (a) (b) punishable under
Section 187 of the Motor Vehicles Act, 1988, he has been
sentenced to suffer rigorous imprisonment of one month and
to pay a fine of Rs.500 (Five Hundred Only), in default, to
suffer rigorous imprisonment for seven days. The learned
Appellate Court vide its judgment dated 08.04.2022 has
maintained the conviction by dismissing the appeal.
3. Shri Barve, learned Counsel for Applicant, submits
that there are contradictory versions of the accident coming on
record in the evidence of PW-2 Gokul Prakash Rathod and
PW-3 Kamlabai Prakash Rathod, both of whom were traveling
in the truck along with the Accused/Applicant at the relevant
time, and therefore, relying upon State of M.P. ..Vrs..
Bacchudas alias Baliram and Ors., 2007 (9) SCC 135 (para 9) ,
it is submitted, that when two views are possible on the
evidence adduced in this case, the view which is favorable to
the Accused should be adopted. He further relies upon State of
Karnataka ..Vrs.. Satish, 1998 (8) SCC 493, to contend that
mere driving of the truck at high speed cannot be termed as a
rash or negligent driving, unless there is material to establish
the same. He therefore submits, that considering the
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contradictory statements of Gokul and Kamalabai, the
conviction of the Applicant/Accused cannot be sustained and is
required to be quashed and set aside.
4. Shri Chutke, learned APP for the non-applicant/State
opposed the revision application and submits, that the
evidence of PW-2 Gokul demonstrates that there was rash and
negligent act on the part of the Applicant/Accused. He further
submits, that though PW-3 Kamalabai in her cross-examination
states, that the accused was blowing the horn and was not at a
fault as the motorcycle suddenly came in front of him, he
however submits, that considering the accident has happened
on a turn, it was obligatory upon the Applicant/Accused to
have taken due precaution while driving the truck. He further
invites my attention to the conduct of the accused, which is
demonstrated from the evidence of PW-2 Gokul, which indicate
that even after the accident, he did not stop, in spite of Gokul
asking him to do so, to render aid to the persons traveling on
the motorcycle, but took out a bottle of country liquor due to
which, PW-2 Gokul felt threatened and did not pursue his
request for stopping to render aid.
5. PW-1, PW-2 and PW-3 are the only eyewitnesses.
PW-2 and PW-3 were sitting in the cabin of the truck, when the
accident took place. PW-3 states, that the truck was coming
down on the slope and the motorcycle was coming upward,
35 REVN-105-2022.odt
when the motor cycle came under the truck. It is not disputed,
that the accused was driving the truck at the relevant time.
She, however, categorically admits, that the accident had
happened on a turn. She also admits, that the
Applicant/Accused was blowing the horn, when he was driving
down the truck on the slope. It is also stated, that the
motorcycle suddenly came in front of the truck, and therefore,
accident took place and the Accused was not at a fault.
6. PW-2 Gokul, the other eyewitness, who was sitting
beside the accused states, that a motorcycle was coming from
the opposite direction and the truck dashed against the
motorcycle. He admits, that the accident had happened on a
turn and further goes on to state, that since the driver had not
put on the brakes, the accident took place. He also states, that
when he had asked the accused to stop the truck with an
intention to assist the injured, the same was not done.
7. It is not in dispute, that in the accident Shridhar
Bhagwan Bhongale lost his life. The report of the Medical
Officer of Rural Hospital Gadchandur states, that he was
brought dead. Sumanbai Shridhar Bhongale (PW-1) who was
riding pillion on the motorcycle, also sustained multiple
injuries, which is indicated by the MLC Report, which is at
Exh-36, which has been proved by PW-5 Dr. Vijay Tatobaji
Kadaskar, who has examined Sumanbai at Exh-35 and has
35 REVN-105-2022.odt
proved the injuries.
8. Sumanbai, the wife of the deceased has been
examined as PW-1 and has categorically stated, that it was the
truck coming from the opposite direction, which dashed the
motorcycle driven by her husband, in spite of the fact that her
husband had sounded the horn of the motorcycle. In her cross-
examination, the statement about the sounding of the horn
and taking the motorcycle to one side, has been admitted to be
an omission.
9. The evidence has been appreciated by the learned
Trial Court, after considering which, it has come to the finding
that though the speed of the truck is not a sole criteria for
inferring negligence or rashness, however, reasonable care is
also required to be taken, which, in the instant case has been
found to be absent. The subsequent conduct of the accused, is
not stopping at the spot but running away, in fact, is an action,
which adds to the guilt of the accused.
10. What is also material to consider is, that Section
304-A of the IPC does not contemplate only a rash act, but also
a negligent one and the two are separately distinguished. Thus,
absence of any rash act, would not mean that there was no
negligence and the accused in such cases, is entitled be left off.
35 REVN-105-2022.odt
11. The spot panchanama (Page 96) indicates, that the
accident has happened on a turn and there was a sloping road
towards the side of Gadchandur, on which, the accused was
driving the truck and the motorcycle was climbing upwards.
Spot panchanama shows the location of the accident towards
the right hand side of the sloping down road, which would
indicate that the motorcycle was on the correct side of the road
and would indicate negligence on the part of the accused. The
spot panchanama Exh-27 has been proved by Ananta Balwant
Wable PW-4, who has been examined at Exh-26 and nothing
has been brought out in his cross-examination.
12. Thus, the evidence of PW-1 and PW-2 coupled with
the spot panchanama at Exh-27 and the evidence of Dr. Vijay
Kadaskar PW-5 would indicate, that the accident has happened
on account of the negligence of the Applicant/Accused, and
though there are certain admissions in the evidence of
PW-3/Kamlabai, the evidence of PW-1 and PW-2, coupled with
the spot panchanama and the injury report would indicate
negligence, and thus the present matter does not fall within
what has been held in Bacchudas (supra), considering which, I
do not see any reason to interfere in the conviction awarded by
the learned Trial Court as confirmed by the learned Appellate
Court.
35 REVN-105-2022.odt
13. Shri Barve, learned Counsel for the Applicant submits,
that the Applicant/Accused, is now 56 years of age and has
already undergone 20 days of incarceration, and therefore
submits, that the sentence imposed by the learned Trial Court
may be reduced, considering the passage of time and the age
of the Applicant/Accused. Though Shridhar Bhongale has lost
his life in the accident and so also Sumanbai Bhongale has
sustained injury, however, what is also necessary to appreciate
is that the accident is date 03.09.2011 and 10 years have
already passed and considering the age of the Applicant, the
sentence imposed by the learned Trial Court upon the
Applicant/Accused under Section 304-A of the IPC is reduced
to six months. Rest of the impugned judgment is maintained.
The bail bonds of the Applicant/Accused stand cancelled.
14. Since the Applicant/Accused was in jail for 20 days,
he be given set off as per rules. Since the Applicant/Accused is
on bail, he is directed to surrender himself to the Police Station
Jivati, Tah. Jivati, District Chandrapur for undergoing the
remaining sentence within ten days from the date of this order,
failing which, the Police Station Officer Jivati, District
Chandrapur is directed to take the Applicant/Accused into
custody for undergoing the sentence.
15. In the meanwhile, Shri Chutke, the learned Additional
Public Prosecutor for the non-applicant/State shall
35 REVN-105-2022.odt
communicate this order to the Police Station Officer, Jivati,
District Chandrapur accordingly.
16. The criminal revision application is partly allowed to
the above extent and disposed of accordingly. No costs.
(AVINASH G. GHAROTE, J.)
TAMBE
Digitally signed byASHISH
ASHOKRAO TAMBE
Signing Date:28.06.2022
17:43
