Bombay High Court
Dnyaneshwar Rupchand Rajput vs State Of Maharashtra on 18 October, 2023
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.260 OF 2023
Dnyaneshwar Rupchand Rajput ..... Applicant
Versus
The State of Maharashtra .... Respondent
......
WITH
INTERIM APPLICATION NO.2978 OF 2023
IN
CRIMINAL REVISION APPLICATION NO.260 OF 2023
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Ms.Kinjal Khandelwal, Advocate a/w. A. Maurya i/b. S.G.
Rajput, for the Applicant.
Mr. Yogesh Y. Dabke, APP for the Respondent-State.
-----
CORAM : SARANG V. KOTWAL, J.
DATE : 18th OCTOBER, 2023
P.C. :
1. Leave to amend to add the legal heirs of Umesh
@ Sagar Surate and Pavan Sonawane as party Respondents.
Amendment shall be carried out within a period of eight
weeks from today.
2. Heard Ms.Kinjal Khandelwal, learned counsel for
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Deshmane(PS)
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the Applicant and Mr. Yogesh Dabke, learned APP for the
Respondent-State.
3. The Applicant was the original accused in S.C.C.
No.1499/2011 before the Judicial Magistrate, First Class,
Court No.6, Malegaon. The trial Court, at the conclusion of
the trial, convicted the Applicant for commission of the
offence punishable under Sections 304-A, 279 and 338 of
IPC as well as under Section 134(b) read with 177 and 184
of the Motor Vehicles Act. He was acquitted from
commission of the offence punishable under Section 427 of
IPC. The major sentence imposed on him was RI for nine
months for the offence punishable under Section 304-A
besides imposition of fine of various amounts under different
heads. The substantive sentence under different heads were
directed to run concurrently. The fine amount of Rs.3,000/-
was directed to be paid to the legal heirs of the deceased
Umesh @ Sagar Surate and Pavan Sonawane.
4. The Applicant challenged that order by way of
Criminal Appeal No.38/2014 before the Additional Sessions
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Judge, Malegaon. Said appeal was dismissed vide order
dated 2.8.2023.
5. The prosecution case is that the first informant
Daga Marathe was driving the rickshaw carrying passengers
from Malegaon to Chalisgaon on 14.3.2011. Near Malegaon
diversion he saw one Indica car was overtaking a truck. The
car dashed into his rickshaw directly. The rickshaw turned
upside down and fell on the left side of the road. He
suffered injuries. One Umesh @ Sagar Surate died at the
spot. The other injured Pavan died after few days. After the
accident an offence was registered vide MAR No.42/2011 at
Malegaon Taluka Police Station.
6. The investigation was carried out. It is the
prosecution case that the Applicant was driving that car.
During trial the prosecution examined five witnesses. Four of
them were the passengers of the rickshaw and PW-5 Police
Constable Sanjay Pawar had investigated the offence.
7. Learned counsel for the Applicant submitted that
the prosecution has failed to prove the case against the
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Applicant. The report of the vehicle inspection i.e. of the car
is not brought on record. The Vehicle Inspector is not
examined. Therefore, it cannot be assumed that the accident
took place because of negligence of the Applicant. She
further submitted that the rickshaw driver was carrying
passengers more than capacity and permissible number of
passengers. Two passengers were sitting on either side of
the rickshaw driver. Thus he was not in control of this
rickshaw and, therefore, the accident has occurred.
8. Learned APP opposed these submissions. He
submitted that it is quite clear from the evidence on record
that the accident had occurred because the car was
overtaking the truck in a rash, negligent and dangerous
manner. There was no other reason for the accident to have
occurred.
9. I have considered these submissions. I have
perused both the impugned judgments and I have also
perused the evidence of the witnesses, which is annexed to
this application. The first witness was the first informant
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Daga Marathe. He was declared hostile, but, he has narrated
the incident as to how the incident took place. According to
him, the accident involved a Indica Car and his rickshaw.
PW-2 Komal Dhiware was a passenger in the rickshaw. He
has described the incident. He identified the Applicant in the
Court. At the time of recording of his evidence he was 18
years of age on 17.5.2013. The incident had taken place two
years prior to his recording of the evidence. PW-3 Shani
Daunde was another passenger. He was injured in the
incident. He identified the Applicant in the Court for the
first time. PW-4 Mayur Changle was also one of the
passengers. He was declared hostile. PW-5 Police Constable
Pawar was the investigating officer. He accepted that the car
in question was a Maruti Car and one Vishwajeet Dhone was
its owner. He accepted that he has not recorded the
statement of Dhone that the present Applicant was the driver
of the said vehicle. He also accepted that the Applicant was
working in the Mumbai Municipal Corporation.
10. This entire evidence shows that there is some
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doubt about whether the car in question was an Indica Car
or a Maruti Car. However, the crucial question is about the
identity of the driver. All the witnesses have deposed that the
accident had occurred in a very short span of time. From the
evidence it is clear that it was very difficult for the witnesses
to have observed the driver of the car.
11. The vehicle did not stop at the spot. The driver
was not caught at the spot. No test identification parade was
held. The car was not registered in the name of the present
Applicant. There is no linking evidence to show that on that
particular day the car was in his possession and that he was
driving the car. Though the two witnesses have identified
the Applicant in the Court, their evidence was recorded after
two years from the date of incident.
12. The Applicant is in custody since 2.8.2023. Thus
he has competed more than two and half months of his
substantive sentence out of the sentence of nine months.
13. Considering this discussion, the Revision
Application needs to be admitted and the Applicant deserves
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to be released on bail. Hence, the following order:
:: O R D E R ::
i. Revision Application is admitted. Call R & P.
ii. During pendency and final disposal of Revision
Application, the Applicant is directed to be released
on bail on his executing a PR bond in the sum of
Rs.25,000/- (Rupees Twenty Five Thousand Only)
with one or two sureties in the like amount.
Interim Application No.2978/2023 is disposed of
accordingly.
(SARANG V. KOTWAL, J.)
Deshmane (PS)
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