- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.75 OF 1999 Yasin Sheku Nigewan .. Applicant vs The State of Maharashtra .. Respondent Mr.Nitin Jamdar for Applicant Mr.H.J.Dedhia APP for State-Respondent CORAM: A.S.OKA, J DATED : 15th July, 2009 JUDGMENT 1. The submissions of the learned counsel appearing for the applicant and the APP for the State were heard on the earlier date. The applicant was prosecuted at the instance of the State for offences under section 304-A of the Indian penal Code (Hereinafter referred to as the Penal Code) and section 134 of the Motor Vehicles Act, 1988 (hereinafter referred to as the said Act) which is punishable under section 177 of the said Act. The applicant was convicted by the learned Chief Judicial Magistrate, Solapur. The applicant was sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs.100/- for the offence under section 304-A of the Penal Code. He was sentenced to pay fine of Rs.100/- for the offence under the said Act of 1988 and in default of payment of fine, he was directed to undergo simple imprisonment for six months. The order of conviction has - 2 - been confirmed in an appeal preferred by the applicant. The Revision application was admitted by this Court and interim relief in terms of prayer clause (d) was granted thereby suspending the operation of the sentence. 2. The learned counsel appearing for the applicant has taken me through the notes of evidence and other relevant documents on record of the trial Court. He invited my attention to the evidence of the prosecution witnesses and submitted that taking the evidence as it is, rash and negligent driving on the part of the applicant was not at all established. He submitted that the Courts below have failed to consider the real controversy namely whether the applicant was guilty of rash or negligent driving of the truck. He submitted that the findings recorded by the Courts below are contrary to the evidence on record. He submitted that the Sessions Court has not really dealt with the issue of rashness or negligence. He submitted that the impugned orders are perverse. The learned APP submitted that in the limited revisional jurisdiction, this Court cannot re-appreciate the evidence and there is no scope to interfere with the concurrent findings of fact recorded by the Courts below. 3. I have carefully considered the submissions. I have perused the notes of evidence. The case of prosecution in brief needs to be adverted to before - 3 - considering the submissions made by learned counsel appearing for the parties on merits. The allegation against the applicant is that on 28th May, 1995 at about 10.30 p.m, he was driving his truck bearing No.MH 13-B 4466. It is alleged that when the truck was near Multani bakery on Solapur-Hotgi Road, the applicant was driving the truck in a rash and negligent manner thereby endangering the human life. It is alleged that he caused the death of a 5 year child by the name Chhaya who was standing by the side of the road. Further allegation is that after committing the offence, the applicant failed to give information of the incident to the nearest police station as soon as possible and in any event within 24 hours from the time of the incident. 4. It will be necessary to refer to the evidence of the prosecution witnesses. The main witness examined by the prosecution is PW 2 Chandrakant Potdar who is the father of the victim girl. He stated in his evidence that his brother Rajaram had been to his house on that day. He accompanied his brother Rajaram along with his daughter Chhaya to Multani bakery bus stop. He stated that he was standing by the side of the bus stop. At that time, a truck carrying sand came in a very fast speed. He stated that while his daughter was standing, the truck gave a dash to his daughter from the front side. His - 4 - daughter fell down and the truck ran over her person. He stated that the truck proceeded ahead and stopped at some distance. He stated that his daughter Chhaya died on the spot. He stated that after the truck halted, the driver alighted from the truck and ran away. In cross examination he admitted that the said road has a heavy traffic of vehicles. He stated that a bus was standing at the bus stop. He further stated that after the city bus left, his daughter was about to cross the road. He, however, denied the correctness of the suggestion that his daughter all of a sudden came on the road without paying attention to the vehicles on the road. Thus, in examination-in-chief he stated that at the time of impact his daughter was standing along with him near the bus stop. In the cross-examination, he came out with the case that after the bus standing at the bus stop left, his daughter was about to cross the road the accident occured. He has not come out with the case that he was also attempting or intending to cross the road with his daughter. 5. The next prosecution witness is P.W.3 Appasahab Sidram Chougule. He stated that he was having his house near the Multani bakery bus stop. He stated that he was proceeding on his moped from his house towards his land. He stated that the truck was going towards Hotgi side and the said truck was on his front. He stated that there was - 5 - no other vehicle between his truck and his moped. He stated that he was behind the truck up to the bus stop. He stated that after crossing the bus stop, the truck stopped and there was a crowd. He, thereafter, noticed that the truck had run over a child. He stated that the truck halted after some distance and the driver ran away. In his cross-examination, he stated that there was always traffic and crowd of people on the road. He stated that he was not aware as to what was the speed of the truck. He admitted that he had not personally seen the impact or the actual incident. 6. The panch witnesses namely PW 4 and PW 5 were declared hostile. The prosecution examined P.W.6 Namdeo Vithoba Aanbhule Assistant Inspector of Police. He is the person who had lodged the FIR and had drawn the panchanama of the scene of offence as well as the inquest panchanama. In his cross-examination, he admitted that the deceased girl came below the truck while crossing the road and that the deceased was crossing the road alone. This Police officer had lodged the FIR in which he categorically stated that the incident occured when the deceased was crossing the road and that the deceased was crossing the road alone. As pointed out earlier, the father of the deceased in his cross examination came out with a case that after the bus which had stopped at the bus stop left the bus stop, the child was about to cross - 6 - the road. It must be stated here that the initial case made out by the father of the child was that he along with the child were standing at the bus stop. The said version has undergone a change. In the cross-examination, he stated that after the bus which had stopped at the bus stop left, the child was about to cross the road. The concerned police officer went further and stated that the incident occured when the child was alone crossing the road. It will be also be necessary to refer to the statement of the applicant recorded under section 313 of Cr.P.C. What was put to the applicant was that when PW 2 Chandrakant Potdar was standing by the side of the bus stop his daughter was also standing along with him and at that time the truck driven by the applicant came in a fast speed and gave a dash to the child. 7. At this stage, it will be necessary to refer to the scene of offence panchanama which is on record. The said panchanama records that the width of the road at the spot is 24 feet. The panchanama records that there is a kaccha road having width of 5 ft on either side. It is further stated that on the southern side of the spot of the incident, the bus stop is at distance of 25 feet. 8. Thus, apart from the evidence of PW. 1 who has stated that the incident occured when the deceased was alone crossing the road, the scene of offence panchanama - 7 - completely negatives the case of the prosecution that the truck gave a dash to the deceased child while she was standing along with her father by the side of the bus stop. The allegation of negligence made by father of the child is that though the child was standing near the bus stop, the truck came in a rash and negligent manner and ran over the child. There is evidence on record to show that the road is always crowded and there is heavy traffic on the road. It will be necessary at this stage to refer to the finding recorded by the Sessions Judge on this aspect. Para 14 of the decision of the Sessions Court reads thus : In this context, the death of the deceased Chhaya is admitted by the accused before the trial court and also admitted in the panchanama of the scene of offence and seizure of the truck. In such circumstances, if we read the panchanama of the scene of offence and panchanama of attachment of the truck, it will be clear that deceased Chhaya was found lying on the ground because she came into contact from the front side of the truck and her body was ran over below the tyre of the truck. In other words, the front tyre of the truck actually crossed the body of deceased Chhaya and this fact was witnessed by PW 3 Appasaheb Chougule and PW 2 Chandrakant Potdar. There is no suggestion given to the above named witness of prosecution that accused was not driving the truck at the time of the alleged incident. On the contrary, the defence taken by the accused in the trial court would go to show that girl was suddenly crossing the road without taking the note of vehicle of the accused which was on the road. Even such type of defence is ultimately found false by the trial court and learned Judge of the trial court has pointed out that accused was driving the said truck at the relevant time and it is also clear from the record of the case of the prosecution that - 8 - deceased Chhaya standing near by city bus stop and the said truck of the accused while passing the city bus stop gave dash to the deceased Chhaya by driving the said truck in a rash and negligent manner and in this way the accused himself committed the above said offence. Therefore, the defence taken by the accused appeared to be totally wrong and false. 9. The said finding is obviously contrary to what PW 1 and PW 2 admitted in their cross examination. The Sessions court has proceeded on an erroneous assumption that the incident occured when the unfortunate daughter was standing by the side of the bus stop. The Courts have proceeded on the assumption that there is negligence and rashness on the part of the applicant as he has ran away after the incident. The entire basis of the findings recorded by the Courts below is contrary to the oral and documentary evidence on record. In fact, this is a case where the father of the child was standing at the bus stop and after the bus standing at the bus stop left, the five year child suddenly attempted to cross the road. As stated earlier, admittedly the road has a very heavy traffic. The scene of offence panchnama shows that there were brake marks on the road which establish that the applicant must have applied brakes. Taking the evidence of the prosecution witnesses as it is , negligence or rashness on the part of the applicant has not been established. 10. Therefore, it is apparent that the findings recorded by the Courts below are completely contrary to - 9 - the oral and documentary evidence on record as far as the offence under section 304-A is concerned. 11. In so far as breach of section 134 of said Act of 1988 is concerned, the prosecution witnesses are consistent. The applicant stopped the truck at a distance and thereafter ran away and did not report the incident to police. Therefore, though conviction under section 304-A of the penal code deserves to be set aside, the conviction for other offence under the said Act will have to be upheld. However, it must be noted that the applicant has already paid a fine of Rs.100/- which is the only sentence for the offence punishable under section 177 of the said Act of 1988. 12. Hence, Revision Application must succeed in part and I pass the following order : 1. The impugned order of conviction of the applicant under section 304-A of IPC is quashed and set aside andthe applicant is acquitted of the offence under section 304-A IPC. 2. However, his conviction and sentence for other the offence is confirmed. 3. The bail bonds of the stands cancelled. A.S.Oka, J