( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 137 OF 2010 Manik Uttam Jadhav, R/o Shinganpur, Taluka Kopargaon, Dist. Ahmednagar APPELLANT VERSUS The State of Maharashtra RESPONDENT .... Mr. Mukul S. Kulkarni, advocate for the appellant. Mr. N.H. Borade, APP for the respondent/State. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 6th December, 2010] ORAL JUDGEMENT : 1. This appeal is directed against the judgement rendered by learned Additional Sessions Judge, Kopargaon, in Sessions Case No. 25/2008 whereby the appellant is convicted for the offences punishable under section 304-Part-II and Section 323 of the I.P. Code. He has been sentenced to suffer rigorous imprisonment for a term of ten (10) years and to pay fine of Rs. 1000/-, in default to suffer simple imprisonment for six (6) months for offence under section 304 Part-II of ( 2 ) the I.P. Code and to suffer simple imprisonment for six (6) months alongwith fine of Rs. 500/-, in default to suffer simple imprisonment for one (1) month for offence under section 323 of the I.P. Code. 2. The appellant is a truck driver. He is young person. The alleged incident is said to have taken place in the first week of June, 2008. The incident occurred at place of a Sugar Factory near temporary hutment area of the labours who had flocked for attending the work of sugarcane cutting and transportation. 3. Briefly stated, the prosecution case is that the appellant developed intimacy with a married woman by name Adika, who was amongst the group of the labours and is wife of one Babasaheb. In the early hours of 6th June, 2008, the appellant went to the area of the temporary huts erected by the labours, somewhere around 3 a.m. He parked his truck vehicle at a short distance from the sugarcane yard of the Sugar factory. He thereafter went to the hut in front of which said Adika was sleeping. He forcibly dragged her towards the truck vehicle. Her father-in-law awoke on hearing her cries. He also noticed that husband of Adika was running ( 3 ) behind them and was crying for help. He, therefore, woke up and called other labours. They ran after the appellant. The cousin father-in-law of Adika by name Vishnu went in front of the truck vehicle whereas her father-in-law i.e. Laxman reached near cabin of the truck. Her father-in-law climbed on the step of the cabin and attempted to catch hold of the appellant. He tried to drag the appellant outside the cabin by using force. The appellant pushed him away and started the truck vehicle. 4. The prosecution alleges that the truck was dashed against cousin father-in-law of Adika i.e. Vishnu who was standing in front of the truck. The truck ran over the person of said Vishnu. Therefore, Vishnu was practically pressed in between the tires of the truck and the ground and the body was inflated. The flesh and blood immediately came out of the body due to the hard-pressing of Vishnu under the wheels of the truck. He whimpered and instantaneously died. The truck was speeded away by the appellant. The woman i.e. Adika was found dropped on the road by side by railway line. The incident was immediately reported to the police by the security personnel. The police registered an offence on basis of the FIR lodged by Laxman Thombre i.e. the father-in-law of ( 4 ) said Adika, who was being forcibly kidnapped by the appellant with ill-motive. 5. The appellant denied truth into the accusations. He pleaded not guilty to the charge (Exh-2) framed against him for the offences punishable under section 307, 366 and 323 of the I.P. Code. He denied that he intentionally caused death of deceased Vishnu Thombre by running over the truck on his person in the wee hours of the relevant morning. He alleged that he was falsely implicated in the criminal case though he did not commit the culpable homicide and made no attempt to kidnap the married woman i.e. Adika. 6. At the trial, the prosecution examined as many as seven (7) witnesses. The prosecution further relied upon certain circumstantial evidence including the situation on the spot which reflected smearing of blood and mixing up of the earth with flesh of the deceased - Vishnu due to hard-pressing of his body under the wheels of the truck. The learned Sessions Judge came to the conclusion that the charge of beating/abduction could not be established by the prosecution against the appellant The learned Sessions Judge came to the conclusion that Adika herself went towards the truck in the ( 5 ) early hours of the morning with a view to go away with the appellant. The learned Sessions Judge, however, held that the appellant is guilty of homicide of Vishnu, but could not have intention to cause the death though might have knowledge that the death will occur. The learned Sessions Judge further held that the appellant caused simple injury to informant PW1 Laxman Thombre. In keeping with such findings, the appellant came to be convicted and sentenced as stated in the opening paragraph. 7. Heard learned advocate for the appellant and learned A.P.P. Perused the record and proceedings with their assistance. 8. Clinching question is whether the appellant is author of the death of deceased Vishnu Thombre and did cause such a death with knowledge that by his act of running over of the truck on person of Vishnu, the death would have resulted. 9. Before I proceed to scrutinize the prosecution evidence, let it be noted that the appellant had not been to the place of the labours' camp only on that day. The evidence on record sufficiently proves that even on prior occasions, ( 6 ) the appellant had developed intimacy with Adika. It is important to notice further that he had parked the truck vehicle near the sugarcane yard which is situated at a short distance from the camp of the labours. The place of incident is situated beyond a tar-road which is between the camp of the labours and residential quarters of the staff members of the Sugar Factory. The topography of the place of incident can be gauged from the sketch-map (Exh-52), which is an undisputed document. The labours of the Sugar Factory were camping in an open place situated between the tar-road of the Sugar Factory and Vaijapur road. The Vaijapur road is situated on northern side and the tar-road is situated on southern side of the labours' camp. The place of incident is at a distance of few feet on southern side of the tar-road. This topography of the place of incident has significance while appreciating the testimonies of the witnesses. 10. Coming to the version of PW1 Laxman Thombre, it may be gathered that he alongwith his some of the family members had gone to Sugar Factory for working as labours during the harvesting season of the sugarcane crop. His version purports to show that the labours used to travel on truck vehicles for harvesting of the sugarcane crop. They used to cut the ( 7 ) sugarcane crop in the agricultural land, load it in the truck vehicle and return in the evening on the same truck to the temporary residential hutment area. On the relevant day, they returned to the hutment at about 4 p.m. He narrated that his son Babasaheb and daughter-in-law Adika went inside the hut for sleeping while he was sleeping on a bullock-cart at a short distance. His version purports to show that somewhere around midnight, the appellant came to the place. He called the appellant by name and, therefore, the appellant ran away. He narrated that the appellant again returned around 3 a.m. to the locality of the camp of labours. He further narrated that the appellant dragged away Adika from the hut and, therefore, his son Babasaheb started running behind them. His son raised hue and cry while running behind the appellant and Adika. Therefore, he and other labours ran after the appellant. According to him, when he attempted to board in the cabin of the truck, the appellant kicked him out. He, therefore, fell down. He further narrated that deceased Vishnu stood in front of the truck vehicle and raised his hands. He narrated further that Vishnu was shouting and was asking the appellant to stop the truck, yet, the appellant drove the truck vehicle over Vishnu. Thus, Vishnu came under the front wheel of the truck, was pressed to the death and died instantaneously. He ( 8 ) corroborated the FIR (Exh-25). 11. The story narrated by PW1 Laxman Thombre, as it is appearing in his examination-in-chief, if is considered to be indicative of gospel truth, then there is no difficulty in holding the appellant guilty for the offence punishable under section 304 Part-II of the I.P. Code as well as under section 323 of the I.P. Code. However, the cross examination of PW Laxman Thombre gives serious jolt to his credibility. He admits that he was unable to sleep and was awaken during the relevant night after midnight till early hours of the morning. He admits further that Adika awoke at about 3.30 a.m. and went away in order to answer call of nature beyond the opposite building i.e beyond southern side of the tar-road. He categorically admits that near a rivulet, the appellant and Adika met each other. He further admits that after they met each other, Adika started going towards the truck vehicle alongwith the appellant. He categorically admits that she boarded the truck vehicle and sat in the cabin simultaneously with the appellant. He further admits, unequivocally, that he and other labours suspected that Adika was eloping with the appellant and, therefore, they raised hue and cry. His version purports to show that about 60/70 labours from the ( 9 ) camp rushed towards the truck vehicle in order to foil the bid of Adika and appellant to elope together. He further admitted that the appellant had started the truck vehicle when he reached near it. He admits that other labours alongwith him attempted to pull down the appellant from the cabin of the truck vehicle. His most significant admission may be reproduced as follows : "In the said scuffle, the accused lost control over the truck" He further admits that prior to the incident, there were instances of physical intimacy between the appellant and Adika which he did not approve. He further admits that after the marriage between Adika and PW Babasaheb i.e. his son, they came to know that Adika was not of a good character. He admits that due to her loose character, she was not cohabiting with his son. He further admits that before midnight, when the appellant had been to the labours' camp, he and Adika had already decided to elope together, but since he was awaken, they did not immediately elope. He categorically admits that since Adika was consenting party and was eloping with the appellant, she herself did not raise any hue and cry. He ( 10 ) denied the suggestion that he and a group of labours surrounded the truck vehicle and attempted to assault the appellant by means of sickles and sticks. 12. The cross-examination of PW Laxman Thombre leaves no manner of doubt that the genesis of the incident is not in consonance with the narration in the FIR (Exh-25). The FIR shows that PW Laxman Thombre awoke due to alarm raised by Adika and saw that the appellant was forcibly dragging away her. This part of the FIR is incorrect and nothing but falsehood. What transpires from the record is that the appellant developed physical intimacy with said Adika. She, on her own accord, was willing to go with him in the truck vehicle. The informant - PW Laxman Thombre and other labours were against their elopement and wanted to obstruct them. They attempted to drag out the appellant from the cabin of the truck, but he made frantic efforts to escape and speeded away with a view to save himself. In that attempt, deceased Vishnu Thombre, who had raised his both hands above to signal the appellant to stop the truck vehicle, suddenly came under the wheels of the truck and was ran over. 13. The versions of PW3 Bansi and PW4 Babasaheb also ( 11 ) show that PW Laxman Thombre had climbed on the driver's cabin with a view to catch hold up the appellant and wriggle him out. It appears from the cross-examination of PW Babasaheb that he was reluctant to answer the material questions. He either avoided or took longer time while answering such questions. He admits, however, that due to the physical relationship between the appellant and Adika, he had deserted her in the past. He admitted further that when he saw that Adika was indulging in physical intimacy with the appellant, he and his father alongwith other relatives did not like such an affair. He states that when they saw the appellant and his wife Adika in compromising position, all of them started shouting. In other words, he gives a different story about the genesis of the incident. What he attempted to show is that the appellant indulged in sexual relations with Adika in the same morning and, therefore, he and Adika were given a chase by the labours. He denied that PW Vishnu climbed over the truck. A question was put to him, whether due to dragging of the appellant, the latter lost control over the truck. It is pertinent to notice that PW Babasaheb, inspite of repeated asking of such question, did not answer it at all. He admitted that Adika eloped with the appellant on her own accord. Another question put to him was whether in order to ( 12 ) avoid defamation, a false case was concocted on allegation that the appellant took away Adika by use of force. To answer this question, PW Babasaheb took unreasonably long time. Thus, conduct of PW Babasaheb reveals that he attempted to conceal the truth. 14. Now, the testimony of PW Laxman Thombre coupled with the conduct of PW Babasaheb Thombre would unmistakably show that the genesis of the incident was suppressed by both of them. What is evident from the record is that the appellant went near the labours' camp in the relevant night and he indulged in sexual intercourse with Adika. It is more probable that when father-in-law of Adika i.e. PW Laxman Thombre noticed that there was something foul, he raised alarm and called other labours. It is more probable, therefore, that a group of labours ran behind the appellant while he was about to start the truck vehicle and Adika was by his side in the cabin. It is explicit that the intention of the appellant was to run away from the place because a large group of the labours was seen coming towards him. It is but natural that the appellant anticipated danger to his life due to the probable assault by a large group of the labours related to Adika including her father-in-law, cousin father-in-law, ( 13 ) husband, etc. As stated above, there is categorical admission of PW Laxman Thombre that when the appellant was being dragged out of the cabin, he had lost control over the vehicle. This admission is not properly appreciated by the learned Sessions Judge. It is conspicuous that the appellant was panicked due to the fact that a large group of labours was coming towards the vehicle with a view to overpower and beat him. He was baffled and panicked when PW Laxman Thombre attempted to drag him out of the cabin. By that time, he had started the truck vehicle. Thus, the truck vehicle was in locomotion when the appellant was being pulled out of the cabin by PW Laxman Thombre. Therefore, the appellant had lost control over the steering wheel. The situation had slipped away from control of the appellant. The truck vehicle was no more being driven by him but was proceeding ahead due to the locomotion which was beyond his control. The result was that deceased Vishnu Thombre, who was standing in front of the truck vehicle, came under the front wheel of the truck and was flattened to death. Under these circumstances, the appellant could not be regarded as author of the death of Vishnu Thombre. For, neither there was intention of the appellant to eliminate Vishnu Thombre nor that he had control over the locomotion of the truck vehicle because he was being dragged out of cabin by ( 14 ) PW Laxman Thombre. In this view of the matter, it cannot be said that the appellant caused culpable homicide of said Vishnu Thombre by his act or omission. The death is merely due to the situation which went beyond control of the appellant and because of the other contributory factors including the conduct of Vishnu Thombre who stood in front of the truck vehicle which was put in locomotion and that of PW Laxman Thombre who attempted to pull out the driver (appellant) though it could be imagined that the driver could have lost control over the steering wheel. In such a panicky situation, the conduct of the appellant could not be regarded as intentional act of causing death of Vishnu Thombre or his kicking out of PW Laxman Thombre also was not an intentional act to cause harm or injury to the latter but it was due to the instinct of saving himself. 15. Considering the material on the record, the impugned judgement of conviction and sentence is unsustainable. Needless to say, the appeal will have to be allowed. The offences are not proved against the appellant in view of peculiar fact situation of the present case. 16. In the result, the appeal is allowed. The impugned ( 15 ) judgement of conviction and sentence is set aside. The appellant stands acquitted of the charge for the offences punishable under section 304 Part-II of the I.P. Code and Section 323 of the I.P. Code. The sentences awarded to him on both counts are set aside. The appellant shall be set free immediately if not required in any other case. The mudde-mal articles be destroyed as directed by the Sessions Case. The amount of fine, if deposited, shall be refunded to him. [ V.R. KINGAONKAR ] JUDGE NPJ/criapl137-10