1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Revision Application No. 220/2009 Ishwar Tukaram Kodap ..vs..State of Maharashtra --------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders --------------------------------------------------------------------------------------------------------------------- Mr. R. R. Vyas, Advocate for applicant. Mr. S. S. Doifode, A.P.P. for non applicant. CORAM:- S. S. SHINDE, J. DATED :- 26 th NOVEMBER,2009 1. This revision is directed against judgment and order dated 26.04.2007 passed by Chief Judicial Magistrate, Gadchiroli and judgment and order dated 11.11.2009 passed by Sessions Judge, Gadchiroli. 2. Brief facts of the case are as under:- On 16.05.2000 at about 9 to 9.30 p.m. 50 to 60 persons were travelling in a trolley which met with an accident. The First Information Report came to be lodged and offence punishable under Sections 279, 304-A, 337, 338 of the Indian Penal Code and 184 and 192-A of the Motor Vehicles Act came to be registered against the applicant. On 26.04.2007, the trial Court convicted the applicant. The appeal, preferred by the applicant before the Sessions Court came to be dismissed vide 2 order dated 11.11.2009. Hence, this revision application is filed. 3. Learned counsel for the applicant invited my attention to the contents of the application and also grounds taken therein. Learned counsel submitted that the applicant was driving a tractor in hilly area. Both the Courts have not properly appreciated the deposition of informant Nimbaji Sahare in which he has stated that the tractor was in moderate speed. Learned counsel further submitted that the Investigating Officer is not examined. Though the tractor was in moderate speed. Due to hilly area on one side and valley on the other side, the accident in question had occurred. Learned counsel further invited my attention to the cross-examination of Homdas Undirwade and submitted that in his cross-examination, he has stated that trolley turtled and, therefore, accident had taken place. Learned counsel had further invited my attention to deposition of PW4 Dnyandeo, in which he had stated that the trolley has turtled. Speed of the tractor increased due to slop. Learned counsel further submitted that findings recorded by the Courts below are perverse and not in consonance with the evidence on record. Learned counsel further submitted that the Courts should have considered statement of accused under section 313 of Code of 3 Criminal Procedure as a whole. Learned counsel invited my attention to page 15 para 8 and 9 from the judgment of the learned Magistrate and submitted that contrary findings have been recorded by the Court. Learned counsel for the applicant invited my attention to judgment and order passed by Sessions Court and submitted that the Court has recorded in para 7 that the road where the accident took place is a zigzag road or “S” shape road. There are descends and ascends and slopes. It is admitted fact that to one side of the road there is valley and on the other side there are rocks or hilly area. Therefore, learned counsel submitted that the findings recorded by both the Courts below are not in consonance with the evidence brought on record. 4. On the other hand, the learned A.P.P. for the State supported the orders passed by Courts below. 5. I have heard learned counsel at length and also A.P.P. for the State. The Sessions Court in para 8 has held thus:- “The accused when was driving the tractor with the trolley and there were fifty to sixty labourers and he was driving the vehicle in the night, it was necessary on the part of the accused to take precaution to drive the vehicle slowly and he can not ignore the nature of the road. But when the vehicle was driven with speed 4 and or on the slope due to which automatically increases the speed or accelerate the speed, it was necessary on the part of the accused to drive the vehicle in gear no.1 or by using the clutch and the brakes simultaneously without putting his leg on the accelerator. When simultaneous use of the clutch and the brake and driving the vehicle at the first gear or at the second gear is ignored, which as to be inferred on such a road, and when it turtled that itself is sufficient to hold that the driving was rash and negligent. The principle ‘Res-ipso-loquitor’, that is things speaks for itself is clearly applicable and there from, in view of loss the lives of three injury to thirty to thirty-four persons, one has to conclude that the vehicle was driven rashly and negligently.” 6. In para 9 of the judgment, the Sessions Court has commented on the statement of applicant under Section 313 of the Code of Criminal Procedure and concluded that practically the applicant has admitted everything. To question 8 that was put to accused that one of the witness Homdas stated that as the road was from Ghat, and as the tractor was driven with full speed and in that speed as he applied brakes, the tractor turtled. The accused has admitted that fact. So also, he has admitted that because of the application of brakes the trolley turtled. All 5 the witnesses have categorically stated about the speed and the negligent driving of the accused and the deaf ears shown by the accused to the request of the labourers. Where from, it can be safely hold that the vehicle was driven rashly and negligently. Resultantly, therefore, when number of persons have lost the lives and number of persons have received grievous injuries as well as simple injuries that per se is sufficient to hold that the prosecution has brought home the guilt under Sections 279, 304- A, 337, 338 of the Indian Penal Code and under Sections 184 and 192-A of the Motor Vehicles Act. 7. After having heard learned counsel for the applicant, none of the arguments advanced by him would impress to upset the concurrent findings recorded by Courts below. On careful perusal of judgment and order passed by Sessions Court, one thing is clear that in spite of repeated requests of labourers for driving the tractor slowly, the applicant driven the vehicle in speed. That apart, the findings recorded by the Sessions Court in para 8 and 9 are sufficient to hold the applicant guilty under Sections which are charged against him. It is not in dispute that three persons have lost lives in the said accident. It is also not acceptable that how driver at 2 a.m. was driving tractor with 6 50-60 passengers. In fact, it was open for him to refuse to take the tractor. There may be some contradictions and omissions but the fact remains that most of the witnesses, who are examined on behalf of the prosecution, have stated that the applicant was driving the tractor in high speed and due to that accident in question took place. It may be noted that the informer, who is not really affected by accident may subsequently change his version. However, number of witnesses including labourers, who were travelling by tractor have stated that the applicant was running the tractor in high speed. Therefore, both the Courts have properly appreciated the evidence on record and taken reasonable and possible view. 8. In view of above, no case is made out for interference in revisional jurisdiction of this Court. The revision is, therefore, rejected and disposed of accordingly JUDGE kahale