((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.127 OF 1999 Maruti Bhikaji Navale Petitioner versus Sunil Shivaji Navale & anr. Respondents Mohan N. Dhamal for applicant. Miss A.T.Javeri, APP for the State. CORAM : A.S.OKA, J. DATE : 22nd April 2009 JUDGEMENT :- 1. I have heard the submissions of the learned counsel for the revision applicant and the learned APP for the State. The applicant- accused has been convicted for the offence under section 279 of the Indian Penal Code as well as section 304-A of the Indian Penal Code. The order of conviction was passed by the learned Judicial Magistrate, First Class. In appeal preferred by the revision applicant, the order of conviction of has been maintained. However, the learned Additional Sessions Judge has modified the order of sentence in favour of the revision applicant. ((-2-)) 2. The case of the prosecution is that on 25th February 1995 one Shivaji Navale and his father Dharmaji were sitting on an otla in front of their house. The daughter of said Shivaji by name Pooja who was three years old at that time was playing with other children by the side of the road. At that time the revision applicant was driving a Maharashtra State Road Transport Corporation Bus ("S.T.Bus" for short) by Satara-Morghar road. The case of the prosecution is that the vehicle was being driven in a very high speed. Therefore, the said girl Pooja was knocked down by the bus. In fact, she was killed on the spet. 3. The learned counsel for the revision applicant submitted that there was absolutely no evidence of any rash and negligent driving on the part of the revision applicant and the finding of rash and negligent driving recorded by both the Courts below is completely contrary to the evidence on record. He submitted that even accepting the version of the prosecution witnesses as it is, the allegation of the prosecution was not proved. The learned APP supported the impugned judgements and orders by inviting my attention to the scene of offence ((-3-)) panchanama. She pointed out that there were brake marks noted having length of 20 feet which show that the bus was being driven in a very high speed. She submitted that no interference can be made with the finding of fact in revision application. She submitted that it is not open for this Court to reappreciate the evidence in the revision application. 4. Necessary ingredients of Section 279 of the Indian Penal Code is that the vehicle must be driven on a public way in a manner so rash or negligent as to endanger the human life, or to be likely to cause hurt or injury to any other person. Under section 304A, a person who causes death of any person by doing any rash or negligent act not amounting to culpable homicide can be punished. 5. It will be necessary to refer to the evidence of the prosecution witnesses. PW-1 is Sunil Shivaji Navale. In his examination-in-chief he stated that when he was sitting in front of his house his daughter Pooja was playing by the side of the road. It is stated that his father Shivaji was by his ((-4-)) side. He stated that at that time one S.T. Bus was proceeding from Saigaon to village Vadval by the side of the road in a high speed. He stated that when his daughter Pooja was coming to the house by crossing the road, she was hit by road side bumper of the S.T. bus and she fell down by the rear side of the right wheel on the driver’s side of the bus. He stated that the driver of the bus stopped the bus. 6. In the cross examination he stated that there is a bus stop near the spot where the road diverts near the road to village Aanewadi. He stated that there were residential houses on both sides of the bus stop. He stated that his house was on western side of the road at a distance of 400-500 feet. He admitted that there were pot holes on road. He reiterated that his daughter was playing by the side of the road. A suggestion was given to him that his daughter while playing by the side of the road suddenly came on the road. He denied the correctness of the said suggestion. 7. PW-2 is one Rajaram Kadam who again stated that the bus was being plied in a high speed ((-5-)) which gave a dash to the victim girl. However, in the cross examination he admitted that when the accident occurred, he was working in the field and therefore he was unable to tell as to how the accident occurred. Therefore, he has not seen the accident. PW-3 Shivaji (grandfather of the deceased girl) stated in his deposition that when there was a loud noise of the bus his attention was diverted to the direction of the bus and he saw that Pooja was given dash and she was thrown away at a distance. On plain reading of his examination-in-chief it appears that he had not seen the actual incident and he looked towards the bus only after the impact of the loud noise probably caused due to the application of breaks of the bus. Therefore, such a witness cannot be said to be an eye witness. It is important to note that the said witness stated that he alongwith his son Sunil (PW-1) were sitting on the Otla near the side of the road. In the cross examination he has further stated that "there was loud noise of the bus and therefore our attention diverted in that direction". Thus, what has been stated by the said witness is what is seen by him is only after the loud noise was heard. He has stated ((-6-)) that "our attention" i.e. the attention of he himself and his son Sunil was drawn to the direction of bus. This version to causes considerable damage to the version of PW-1 Sunil. 8. Thus, except PW-1 no other witness is an eye witness in the sense that none of them have seen the actual accident and all of them have seen what happened after the actual accident. 9. Accepting the evidence of PW-1 Sunil as it is, what is brought on record is that the unfortunate victim girl was playing by the side of the road and the revision applicant was driving the bus by the said road in a high speed. He has not stated as to how his daughter Pooja came on the road. Only one statement in the evidence is against the applicant namely that the applicant was driving the bus in a high speed. Driving a bus admittedly on a public road in high speed by itself is not sufficient to prove the rash and negligent driving or rash or negligent act on the part of the applicant. It is not the case of the witness that the minor girl while crossing the road had taken all the precautions ((-7-)) and that there was a failure on the part of the applicant to take care which a reasonable and prudent man ought to have taken. Apart from this, the investigating officer admitted that he had not recorded the statements of the passengers of the bus who could have been the best witnesses to depose. It is surprising that the investigating officer has not chosen to record their statements. 10. Now, what remains to be considered is the scene of offence panchanama. It must be stated that none of the witnesses have come out with the case that the applicant had taken the bus on its wrong side. Taking what is recorded in the Panchanama as it is, a possible conclusion is that the applicant made his best efforts to avoid the accident and therefore he applied the brakes. Therefore, there is brake mark to the extent of 20 feet. 11. It is true that it is an unfortunate accident involving death of a minor girl whose age was only three years. However, accepting the evidence of the prosecution witnesses as it is, it is impossible to record a conclusion that the applicant was guilty of any rash or ((-8-)) negligent driving or act. In the circumstances, the conclusion drawn by the learned Judges of the Courts below could never have been drawn even by accepting the evidence of the prosecution witnesses as it is. 12. Hence, the revision application must succeed and I pass following order :- (a) The conviction and sentence of the applicant is quashed and set aside and the applicant is acquitted of the offences alleged against him; (b) The revision application is accordingly allowed. (A.S.OKA, J.)