Bombay High Court

Omprakash S/O Munnalal Deshmukh vs State Of Mha. Thr. Pso Ps Warora ... on 3 February, 2025

2025:BHC-NAG:1392


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

                         CRIMINAL REVISION APPLICATION NO. 177 OF 2022

                    APPLICANT                         Omprakash s/o Munnalal Deshmukh,
                                                            VERSUS
                    NON-APPLICANT                     State of Maharashtra,
                                                      Through Police Station Officer,
                                                      Police Station, Warora,
                                                      Tah. Warora, District Chandrapur
                    --------------------------------------------------------------------------------------------
                    Mr. Sahil Umredkar, counsel for applicant.
                    Mr. C.A. Lokhande, APP for non-applicant/State.
                    --------------------------------------------------------------------------------------------

                                     CORAM             : URMILA JOSHI-PHALKE, J.
                                     DATE              : 03/02/2025

                    ORAL JUDGMENT :

1. Heard.

2. Admit. Heard finally with the consent of learned

counsels appearing for the parties.

3. The applicant is challenging the judgment and order

dated 24/03/2015 passed by the 2nd Judicial Magistrate First

Class, Warora, in S.C.C. No. 420/2011, which is confirmed by the

Additional Sessions Judge, Warora, in Criminal Appeal No.

10/2015, by which the applicant is convicted of the offence

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punishable under Sections 279, 337, and 304-A and sentenced to

suffer R.I. for three months and fine of Rs. 1,000/- for the offence

punishable under Section 79; in default further R.I. for one month

for the offence punishable under Section 337 and fine of Rs. 500/-.

Further the offence punishable under Section 308, R.I. for one

year and fine of Rs. 5,000/-. The fine amount is already paid by

the present applicant.

4. As per the case of the prosecution, the informant

Babulal Bhauraoji Atram was residing at Warora and Khuhi for

labour work. Deceased Kishor Gawali was his friend. On

06/06/2011 at 12.13 p.m., he and Kishor Gawali were proceeding

for labour work by walk, while they reached in front of Hotel City

Point Warora. At that time, a truck bearing No. MH-34/AP/4157

came from the backside of the gate and gave dash to them. Due to

which, he as well as his friend sustained the grievous injuries, and

during the treatment, his friend Kishor succumbed to death. On

the basis of the said report, police have registered the crime vide

crime No. 103/2011 for the offences punishable under Sections

279, 337, and 304-A of IPC. During the investigation, the I.O. has

also drawn the spot panchahnama and collected the details of the

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vehicle by issuing a letter to R.T.O. He also seized the vehicle

involved in the accident, and after the completion of the

investigation, the charge sheet was filed.

5. Heard learned counsel for the applicant as well as

learned APP for the State. Learned counsel for the applicant

submitted that as far as the aspect of rash and negligent driving is

concerned, there is absolutely no evidence; even the identification

of the accused as a driver is not established by the prosecution.

Learned trial Court as well as learned Sessions Court has not

considered the same and wrongly convicted the applicant. He

submitted that the trial Court framed the charge against the

accused vide Exhibit 28, and in support of his prosecution, the

prosecution has examined in all seven witnesses. None of the

witnesses have stated that in what manner the vehicle was driven,

whether it was in a speed or without taking due care and caution.

Thus, aspect of the negligence itself is not proved by the

prosecution as far as the involvement of the present applicant as a

driver is also not established. When the applicant has applied for

the return of the vehicle on Supatrnama, he is arrested. Thus, at

the relevant time, it was the present applicant, who was driving

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the said truck itself is not established by the prosecution, and

therefore, the conviction of the present applicant is not

sustainable.

6. Learned APP strongly opposed the said contention

and submitted that evidence of the informant, who is the

eyewitness of the said incident himself, has established that it was

the present applicant who was driving the said truck, and after the

incident, he eloped from the spot of the incident. Thus, sufficient

evidence is on record to show that it was the applicant who driven

the vehicle in a rash and negligent manner and thereafter eloped

from the spot of the incident. The statements of the witnesses and

their evidence sufficiently show that the vehicle was driven in a

rash and negligent manner and gave dash informant and the

deceased backside, in which the death of the deceased is caused.

In view of that, the judgment of the trial Court and the Additional

Sessions Judge is proper, and no interference is called for.

7. After hearing both sides, I have perused the evidence.

P.W. 1 is an eyewitness of the said incident, who has narrated the

incident on the day of the incident at about 12 to 12.30 pm.when

they were proceeding by walk, at that time, the incriminating truck

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came from the backside and gave dashed to them. Due to which,

the deceased succumbed to the death, and he has sustained the

injuries. This cross-examination shows that he has not stated

before the police by lodging the report that it was the present

applicant, who was driving the truck, at the relevant time.

8. He further submits that he has not seen the present

applicant driving the truck, but voluntarily, he stated that he has

seen the present applicant elope from the spot of the incident. The

PW-2 is the wife of the deceased. P.W.-3 is the father of the

deceased, and P.W.-4 is the mother of the deceased, who have not

witnessed the alleged incident. PW-5, Sanjay Nikhade, is the other

eyewitness, who has stated that though he has witnessed the

incident, but it was witnessed by him from a distance of 100 feet.

Thus, as far as present applicant was driving the said vehicle has

not stated by him. P.W.6 Nitesh Parchake is the punch, who has

only stated that police called him and obtained his signatures on

the panchanama. PW-7 is the investigating officer, who has

narrated about the investigation. As far as the fact that, at the

relevant time, the present applicant was driving the vehicle, he has

not investigated the same. He specifically admitted that the

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informant has not stated the name of the present applicant as the

driver of the vehicle, and he has not put the present applicant for

the identification parade to establish that it was the present

applicant who was driving the vehicle at the relevant time.

9. After going through the evidence, there is no dispute

as to the fact that the accident occurred on the day of the incident,

i.e. on 06/06/2011 at about 12:30 noon. The present applicant is

the owner of the vehicle, which is established from the RTO

receipt as well as other documents which are collected during the

investigation. Admittedly, though informant has stated that he has

seen the applicant running away from the spot after the escape,

but he has not narrated this fact before the investigating officer

while lodging the report. Except this statement, there is no other

material collected or brought before the Court during the trial. The

recitals of the spot panchanama also nowhere show any break

marks or any other sign at the spot of the incident when he was

drawn the spot panchanama.

10. Whether the act of the present applicant was rash or

negligent, the trial Court has held the present applicant guilty.

However, on going through the evidence, it reveals that except the

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evidence of informant he has seen the present applicant jumping

from the truck and eloping from the spot of the incident, none of

the witnesses have stated that it was the present applicant who

was driving the truck, i.e. also in a rash and negligent manner. The

principles as to the rash and negligent driving has to be examined

in the light of the facts and circumstances of each case. The

negligence means omission to do something which a reasonable

and prudent person guided by the considerations which ordinarily

regulate human affairs would do or doing something which a

prudent and reasonable person guided by similar considerations

would not do. Negligence is not an absolute term but is a relative

one; it is rather a comparative term. The Court has to adopt

another parameter i.e., 'reasonable care' in determining the

question of negligence or contributory negligence. The doctrine of

reasonable care imposes an obligation or a duty upon a person to

care for the pedestrian on the road, and this duty attains a higher

degree when the pedestrian happens to be children of tender age

person. The 'culpable rashness' and 'culpable negligence' are two

two terms, 'Culpable rashness' is acting with the consciousness that

mischievous and illegal consequences may follow but with the

hope that they will not and often with the belief that the driver has

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taken sufficient precautions to prevent their happening. The

'Culpable negligence' is acting without the consciousness that the

illegal and mischievous effect will follow. The imputability arises

from the neglect of civic duty of circumspection. In such a case, the

mere fact of accident is prima facie is not sufficient to show the

negligence. The principle 'res ipsa loquitur' is helpful to ascertain

whether the driver of the vehicle is negligent or not. This maxim

suggests that on the circumstances of a given case, the res speaks

and is eloquent because the facts stand unexplained, with the

result that the natural and reasonable inference from the facts, not

a conjectural inference, shows that the act is attributable to some

person's negligent conduct.

11. In the light of the above said observation, if the

evidence in the present case, which is discussed earlier, is taken

into consideration, there is admittedly nothing on record to show

that it was the present applicant whose vehicle driven in a high

speed, at the relevant time. At the same time, none of the

witnesses have even uttered that the vehicle was either in a high

speed or came at the wrong side or it was in a rash and negligent

manner. None of the witnesses have stated that while driving the

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vehicle, the driver of the vehicle has not taken due care and

caution, and without observing the traffic rules, gave dash to the

informant or the deceased.

12. There is no dispute as to the fact that the death of the

deceased was caused due to the accidental injury, but as far as the

application of Sections 279 and 304 are concerned, there should

be some evidence on record to show that the vehicle was driven by

its driver in a rash and negligent manner, without observing the

traffic rules. Merely because a vehicle is in a speed is also not a

criteria to held that the vehicle was driven in a rash and negligent

manner. What is to be seen is whether due care and caution are

taken by the driver or not by driving the vehicle.

13. The privy council in the case of Empress v. Idu Beg,

(1881) ILR 3 All 776 in which it is observed that meaning of

'criminal rashness' and 'criminal negligence' is explained as :

"criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. The criminality in such a case lies in running the risk of doing such an act with recklessness or indifference as to the consequence. Criminal

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negligence under Section 304A is gross and culpable neglect or failure to exercise that reasonable and proper care and to take precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances attending the charge, it was the imperative duty of the accused person to have adopted."

14. In the light of the above observation, if the facts of the

present case are taken into consideration admittedly, the finding of

the trial Court as well as the Appellant Court is without

considering that there is no evidence as to the rash and negligent

act of the present applicant. In fact, it is not establish that present

applicant was driving the vehicle at the time of incident. Thus, the

charge against the accused is that he was driving the truck at the

relevant time, itself is not establish by the prosecution and

therefore, revision deserves to be allowed. Accordingly, I proceed

to pass the following order.

a] The criminal application is hereby allowed.

b] The concurrent finding of the trial Court as well as