Bombay High Court
The State Of Maharashtra vs Adam Sayyad Mulani on 12 March, 2025
2025:BHC-AS:12823
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by HEMANT
CHANDERSEN
HEMANT SHIV
CHANDERSEN
SHIV Date:
2025.03.19
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+0530 1.app659.04.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.659 OF 2004
The State of Maharashtra
Through Police Station Officer,
Police Station, Atpadi,
Taluka Atpadi,District Sangli ...Appellant
vs.
Adam Sayyad Mulani
Age 40 years, Occ. Tempo Driver
R/at Natepute,
Taluka Malshiras,
District Solapur ...Respondent
WITH
CRIMINAL APPEAL NO.660 OF 2004
The State of Maharashtra
Through Police Station Officer,
Police Station, Atpadi,
Taluka Atpadi,District Sangli ...Appellant
vs.
Adam Sayyad Mulani
Age 40 years, Occ. Tempo Driver
R/at Natepute,
Taluka Malshiras,
District Solapur ...Respondent
Ms. Rashmi Tendulkar APP for the Appellant in both Appeals.
Mr. Shailesh Chavan i/b Milind Deshmukh for the Respondent in
both Appeals.
H.C. SHIV 1/14
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1.app659.04.doc
CORAM : SHYAM C. CHANDAK, J.
DATED : 12th MARCH 2025
JUDGMENT :
. Both the Appeals arose out of the same impugned
Judgment and Order dated 9th January 2004, in Regular Criminal
Case No.70 of 2003, passed by the learned Judicial Magistrate, First
Class, Atpadi, District Sangli, thereby the Respondent ("the accused")
has been acquitted of the charge of the offences punishable under
Sections 279 and 304-A of the I.P.C. and Section 181 read with
Section 3 of the Motor Vehicles Act, 1988 ("the Act") but convicted for
the offence punishable under Section 187 read with 134 of the Act and
sentenced to suffer imprisonment till rising of the Court and to pay a
fine of Rs.500/-, in default, to suffer ten days simple imprisonment.
1.1) Criminal Appeal No.659 of 2004 has challenged the said
acquittal, whereas, Criminal Appeal No.660 of 2004 seeks
enhancement of the sentence imposed for the said offence punishable
under Section 187 read with 134 of the Act.
2) Heard Ms.Tendulkar, learned APP for the Appellant-State
and Mr.Chavan, learned Advocate for the accused. Perused record.
3) The prosecution story is that, on 27/02/1999, at about
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11:30 am, three school girls, namely, Supriya Khulpe ("the deceased"),
Swati Sagar and Ashwini Misal, all aged 12 to 14 years, came at village
Salshing Mala, on Dighanchi - Atpadi road, by travelling in a goods
tempo. There, the girls alighted from the said tempo near the field of
Shankar Mohite, as they wanted go to the house of Ashwini Misal by
crossing the road. Swati Sagar and Ashwini Misal crossed the road.
However, when the deceased was crossing the road, the accused came
there driving his tempo bearing MH-04/S-7777 ("offending tempo")
and gave dash to deceased. As a result, the deceased sustained serious
injuries and died on the spot. As alleged, after the accident the
accused fled from the spot leaving the tempo. PW5-Balkrushna
Khulpe, father of the deceased, filed a Vardi Report of the accident
with Atpadi Police Station therein he narrated the incident as above.
Police registered the said Vardi as Motor Accident No.07 of 1999.
3.1) Mr. C. B.Mane, Police Head Constable conducted the
investigation during which he recorded a spot panchnama, inquest
panchnama and examined the witnesses. Based on the investigation
material, an F.I.R. was filed alleging that the accident occurred due to
rash and negligent driving of the offending tempo. Said F.I.R. came to
be registered at Crime No.24 of 1999, under Sections 279 and 304-A
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of I.P.C. and under Sections 130/179, 184 and 134/186 of the Act,
against the accused. On completion of investigation, Mr. Mane, PHC
filed charge sheet before the Court of the learned J.M.,F.C. at Atpadi.
4) Thereafter, the learned Magistrate framed the charge of
the offences punishable under Sections 279 and 304-A of I.P.C. and
under Section 3/181 and 134/186 of the Act, to which the accused
pleaded not guilty and claimed to be tried.
5) To bring home the charge to the Respondent, the
prosecution examined following witnesses and closed its evidence :-
Rahul Narayan Waghmare (PW1/Exh.16) Eye witness
Appasaheb Sadashiv Gonjari (PW2/Exh.18) Spot panch
Swati Dnyaneshwar Sagar (PW3/Exh.20) Eye witness
Bhagwan Nagu Gonjari (PW4/Exh.21) Eye witness
Balkrishna Nagnath Khulpe (PW5/Exh.24) Vardi Report
Kisan Nivrutti Singnapure (PW6/Exh.25) Eye witness
6) Thereafter statement of the accused under Section 313 of
Cr.P.C. recorded. Defence of the accused was of total denial and false
implication. It was his specific defence that the deceased crossed the
road all of sudden and, she herself dashed to the door side of the
driver's cabin of the tempo. And he was not at fault in the accident.
7) After considering the prosecution evidence, the trial Court
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acquitted and convicted the accused for the offences charged, as
stated above. Hence, Appeal.
8) Mrs. Tendulkar, the learned APP vehemently submitted
that PW3 and PW4 witnessed the accident. They have categorically
deposed that when the deceased was crossing the road, the offending
tempo driven by the accused came there and, dashed to deceased.
She submitted that the accident occurred in day time. The deceased
was within the vision of the accused. The road was sufficient broad
and free from obstructions. Yet, the accused could not avoid the
accident. These facts and circumstances clearly established that the
accused was not careful while driving his tempo. As such, this is a
clear case of rash and negligent driving. However, the trial Court
acquitted the accused as above, which is incorrect. She submitted that
a young girl died in the accident. However, the accused fled from the
spot without informing the accident to police. This shows that the
accused did not show any responsibility towards the deceased. The
offence under Section 187 was then punishable with imprisonment of
three months or with fine of Rs.500/- or with both. Yet, very
minimum sentence has been imposed for the said offence. Hence, the
accused be convicted and appropriate sentenced be passed.
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9) In contrast, Mr.Chavan, the learned Advocate for the
accused submitted that the evidence presented by the prosecution
clearly indicates that the deceased crossed the road all of a sudden. At
the same time, she was not watchful and nor she ensured as to
whether any vehicle was passing from the road or not. Consequently,
the deceased dashed to the door side of the driver's cabin of the
offending tempo and sustained injuries. He submitted that it was not
the case that the accused was driving his tempo dangerously.
Therefore, the trial Court acquitted the accused of the charge under
Sections 279 and 304-A of the I.P.C., which is not erroneous. Mr.
Chavan submitted that considering the facts of the case, that the
accused was poor and he has four children, minimum sentence was
imposed on the accused for the offence of Section 187 of the Act.
Therefore, the said sentence may not be enhanced. Additionally, Mr.
Chavan urged that the accident occurred in the year 1999. Presently,
the accused is aged 65 years. Therefore, this is not a fit case to
enhance the sentence.
10) Two questions arise for determination. First; whether the
accused is guilty of the offences punishable under Sections 279 and
304-A of the I.P.C. or not. And second; whether the sentence imposed
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for the offence under Section 187 of the Act should be enhanced or
not.
11) Considering the tenor of the cross-examination, it is clear
that the accused has not disputed the date, time and place of the
accident; that, he was driving the offending tempo; that, there was a
dash between his tempo and the deceased; that, the deceased suffered
the injuries; and that she died on the spot.
12) PW3-Swati deposed that on the day of the accident it was
Saturday and, their morning school was over at 11:00 a.m. Then, they
left village Dighanchi by a motor tempo and, arrived at Salshing Mala,
on Diganchi - Atpadi road. There, she, Ashwini and the deceased
alighted from the tempo. PW3 deposed that then she and Ashwini
crossed the road. However, when the deceased was crossing the road,
the offending tempo came from Atpadi side and dashed the deceased.
12.1) In the cross-examination, PW3 admitted that one was
required to catch the rope of the tempo to get down of it. That, she
and Ashwini caught the said rope and jumped down. She admitted
that, the road at the spot is South-North; that, the house of Ashwini
was to the West of the road; that, their tempo was going towards
South; and that, the offending tempo was proceeding towards North.
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PW3 admitted that they three paid the fare separately; that, then she
and Ashwini crossed the road; that, they were facing to the West; that,
the deceased had not crossed the entire road; that, the deceased was
one foot behind her and Ashwini. PW3 admitted that she cannot state
the cause of the accident as she and Ashwini were facing to the West;
that, the deceased was not thrown; and that, after the incident when
they saw the scene there, the deceased was lying in the middle of the
road. PW3 admitted that one who was standing behind their tempo,
was not able to see vehicles coming from Atpati side.
13) PW4-Bhagwan Gonjari deposed that at the time of the
accident he was proceeding towards Salsihng Mala riding a bicycle on
Dighanchi - Atpadi road. He was proceeding from North to South
direction. One tempo came from his behind and stopped on the road
to its left, before Salshing Mala. PW3-Swati, the deceased and one
more girl alighted from that tempo. PW3 and one girl with her started
to proceed towards the West side. Thereupon, the deceased also
started proceeding towards the West direction. He deposed that, at
this juncture the accused came there driving the offending tempo in a
high speed and gave dash to the deceased. Then the said tempo went
ahead and stopped. The deceased had sustained bleeding injury to
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head and consequently, she died on the spot.
13.1) In the cross-examination PW4 admitted that, the two girls
had already crossed the road; that, at that time, the offending tempo
was coming from the front; that, the deceased wanted to go to the
West; and that, after the deceased alighting from the tempo, she ran
behind the said two girls. He admitted that the deceased was not
thrown. He admitted that, the deceased was lying in the middle of the
road. He has denied that, the deceased was struck by the driver side
of the offending tempo. He has denied that the accused was not at
fault in the accident.
14) PW5 - Balakrishna Khulpe deposed that after receiving
the information of the accident from Milind Dokh, he and his wife
went to the spot; that, there they saw that the deceased was lying on
the road; that the offending tempo was standing at a distance of about
80 feet; that, the driver of that tempo was not present there; that,
then he filed the Vardi (Exh.24). Nothing significant has emerged in
the cross-examination of PW5 to disbelieve his evidence.
15) Evidence of PW2-Appasaheb Gonjri is that at the relevant
time police had called him at the spot of the accident on Dighanchi -
Atpati road, to record the spot Punchnama; that, said road runs south
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- north; that, it is 17½ feet wide; that, the spot of the accident was in
the middle of the road; the offending tempo was standing there facing
towards Dighanchi; that, police recorded the spot panchanama
(Exh.19) in his presence. The cross examination of this witness did
not yield anything fruitful for the defence.
16) In so far as PW1 is concerned, initially, he supported the
prosecution case but in the cross-examination for the accused he
admitted such facts, considering which, the trial Court accepted that
PW1 has turned hostile to the prosecution on the point of rash and
negligent driving of the offending tempo, and therefore, permitted his
cross-examination under Section 154 of the The Evidence Act by the
APP. PW6 has also turned hostile to the prosecution.
17) As the prosecution seeks setting aside of the impugned
acquittal under Section 279 and 304-A of I.P.C. and to convict the
accused for the said offences, first it is necessary to have a look at the
said Sections, which read :
"Section 279. Rash driving or riding on a public way. -
Whoever drives any vehicle, or rides, on any public way in
a manner so rash or negligent as to endanger human life,
or to be likely to cause hurt or injury to any other person,
shall be punished with imprisonment of either description
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for a term which may extend to six months, or with fine
which may extend to one thousand rupees, or with both.
Section 304-A. Causing death by negligence. - Whoever
causes the death of any person by doing any rash or
negligent act not amounting to culpable homicide shall be
punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with
both."
18) On a plain reading of aforestated Sections 279 and 304-A
of I.P.C., it is clear that proof of rash or negligent driving is must in
order to convict an accused charged for the said offences. In this
regard, on a careful reading of the evidence of the witnesses, what
transpired is that PW3, Ashwini and the deceased had travelled up-to
Salshing Mala together in the same tempo. Evidence of PW1-Rahul
Waghmare indicates that he was also travelling along with the said
three girls and that, they were seated in the backside of the tempo.
The manner in which PW3 and Ashwini got down from the tempo, it
can be inferred that, they and the deceased were also seated in the
backside of the tempo and when their tempo stopped, they alighted
from its backside. Thereafter the three girls paid the fare. However,
the evidence of PW3 and PW4 indicates that first, PW3 and Ashiwini
paid the fare and therefore only they crossed the road before the
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deceased. Further the evidence in the cross-examination of PW3 and
PW4 clearly shows that after paying the fare and alighting from the
tempo, immediately, the deceased started to run from East side to
West side, to join her friends. However, at that juncture her vision
was obstructed by the tempo and therefore, she could not see that the
offending tempo was coming from opposite/South side. The deceased
also did not wait for a moment and ensured whether any vehicle was
coming from the South or North directions. Meanwhile, the offending
tempo had come parallel to the place from where the deceased started
to run. Therefore only, the deceased struck to the offending tempo.
19) As admitted by PW3, one who was standing behind their
tempo, was not able to see vehicles coming from Atpati side. This fact
is sufficient to presume that, drivers of said vehicles were also not
able to see the movements behind the tempo of PW3. Secondly, the
said tempo was a goods vehicle and it did not stop at the bust stop
there. Therefore, it is probable that the accused did not anticipate that
the deceased was behind her tempo and that suddenly she would run
to cross the road.
20) No doubt, the road in front of the accused was clear.
However, the prosecution evidence suggests that when the accused
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saw the deceased, he had hardly a chance to swerve his tempo to
either side, because the two girls were on its one side (left) and the
deceased was on the other (right). Similarly, when the deceased
reached to the exact spot of the accident, it was too late for her to turn
and go back.
21) The evidence of PW2, PW3 and PW4 coupled with the
spot panchnama clearly show that the dash between the offending
tempo and the deceased occurred in the middle of the road. Said road
was 17½ feet wide. Therefore, it is safe to presume that the offending
truck was being driven on its left side.
22) In view of the above discussion, it is difficult to hold that
the accused drove his tempo in a rash or negligent manner as stated
in Sections 279 and 304-A of the I.P.C., caused the accident and death
of the deceased by negligence.
23) The trial Court held the accused guilty of the charge under
Section 187 of the Act because the accused failed in his duty to report
the accident to the nearest police station and, in any case within a
period of 24 hours of the accident, which was clear violation of
Section 134 of the Act. This finding is in conformity with the evidence
on record. However, while imposing the sentence for the said offence,
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the trial Court considered that the accused was a poor person, his
parents were aged and he had four children. In the facts, said reasons
appear reasonable. Moreover, at present the accused is aged 65 years,
as submitted by Mr. Chavan, the learned Advocate. In view thereof
and in the facts, I am of the view that no case is made out to enhance
the impugned sentence under Section 187 of the Act.
24) Conspectus of the above discussion is that the acquittal of
the accused for the charge of the offences punishable under Sections
279 and 304-A of I.P.C. by the trial Court is based on appreciating the
prosecution evidence in its correct perspective. The impugned
sentence for the charge of the offence punishable under Section 187 of
the Act is adequate. Hence, the impugned Judgment and Order need
not be interfered with. As a result, both the Appeals are liable to be
dismissed and Appeals are dismissed, accordingly.
(SHYAM C. CHANDAK, J.)
