[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVN.APPLN.NO.292 OF 2000 Brijesh Mathuradas Dattani ] Age 26 years, residing at ] 375, Vidyut Bldg. ‘D’ Block ] 2nd floor, J.S.S.Road, ] Mumbai-400002 ]..Applicant Vs. The State of Maharashtra ] (at the instance of L.T. ] Marg Police Station CR No. ] 157 of 1995) ]..Respondent ... Mr.B.R.Patil advocate for applicant Mr.V.B.Konde-Deshmukh A.P.P. for the State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : DECEMBER 12, 2008 DATE : DECEMBER 12, 2008 DATE : DECEMBER 12, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Heard the learned advocate for the applicant-original accused and the learned A.P.P. for the State. 2. By judgment and order dated 21.1.1998, the learned Metropolitan Magistrate, 28th Court, Esplanade, Mumbai convicted the applicant under Sections 279 and 338 of IPC in Case No.175/P/1995. Being aggrieved thereby, he preferred Appeal No.21 [-2-] of 1998 before the Sessions Court at Greater Mumbai. By judgment and order dated 27.7.2000, the said appeal came to be dismissed, hence, this revision. 3. The prosecution case is that on 9.4.1995 at about 4.30 p.m. complainant PW 1 Pravin was riding on his scooter towards Harkisandas Hospital. PW 2 Keni was sitting on the scooter behind PW 1 Pravin. When they came near S.K. Patil garden, a Maruti Car gave dash to his scooter. The prosecution case is that the petitioner was driving the said Maruti Car. In the said incident, PW 1 Pravin sustained injuries to his right leg. There was a fracture to his right leg. 4. The learned advocate for the applicant submitted that there is no material on record to show that applicant was driving vehicle in a rash or negligent manner. He submitted that both the Courts have not considered this aspect. 5. It may be stated here that PW 2 Keni has turned hostile, hence, the prosecution case is mainly dependent on the evidence of PW 1 Pravin. Sections [-3-] 279 and 338 of IPC both deal with rash and negligent driving. While Section 279 deals with rash and negligent driving, Section 338 deals with causing grievous hurt by a rash or negligent act. As stated earlier, PW 1 Pravin is the injured witness. However, he has not stated anywhere that the applicant was driving his vehicle in a rash and negligent manner. PW 2 Keni has turned hostile. No witness has stated that the petitioner drove the vehicle in a rash or negligent manner. This fact has not been properly appreciated by both the Courts below. In this view of the matter, I am inclined to set aside the judgment and orders passed by the Courts below. 6. In view of the above, the judgment and order of conviction dated 21.1.1998 passed by the learned Metropolitan Magistrate, 28th Court, Esplanade, Mumbai in Case No.175/P/1995 is set aside. So also, the judgment and order dated 27.7.2000 passed by the learned Addl. Sessions Judge, Gr.Mumbai in Appeal No.21 of 1998 is set aside. The applicant-accused is on bail. His bail bonds shall stand cancelled. [-4-] 7. Rule is made absolute accordingly. [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]