crirevappln76.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO. 76 OF 2010 Shashikant s/o Bhimrao Sonawane age 47 years, occ. agriculturist r/o Bhadane, Tq. Sakri Dist. Dhule. .. APPLICANT VERSUS The State of Maharashtra .. RESPONDENT ... Mr. R.S. Shinde, advocate holding for Mr. N.L. Chaudhari, advocate for the applicant. Mr. S.D. Kaldate, APP for the State. ... CORAM : A. V. POTDAR, J. Dated: September 21, 2011 ORAL JUDGMENT : 1 Rule. Rule returnable forthwith. Heard finally by consent. 2 Present revision application is preferred challenging the judgment and order dated 2-3-2010 passed by the learned Additional Sessions Judge, crirevappln76.10 2 Dhule in Criminal Appeal no. 120/2008 by which he confirmed the order dated 8-10-2008 passed by the learned JMFC, Sakri in STCC No. 1490/2001. Applicant / appellant was convicted for offence under section 279 of the Indian Penal Code and was sentenced to suffer SI for three months and to pay fine of Rs. 200/-, in default to undergo SI for 5 days. Applicant was also convicted for offence punishable under section 337 of the Indian Penal Code and sentenced to pay fine of Rs. 200/-, in default to suffer SI for 5 days. He was further convicted for offence under section 134 r/w section 177 of the Motor Vehicles Act and sentenced to pay fine of Rs. 100/-, in default to undergo SI for 5 days. Record shows that the applicant has deposited fine amount before the lower court. 2 Such of the facts which are necessary for adjudication in this revision application can be summarised as follows : . On 8-9-2001, applicant herein was driving the passenger vehicle bearing no. MH 17 A 8825 locally known as “Kali Pili Taxi”. He was proceeding on Pimpalner – Sakri road. At about 12.30 to 1.00 p.m. when the vehicle came near Samode Shivar, it met with the accident. In the said accident, five passengers travelling in the vehicle sustained injuries. On crirevappln76.10 3 receipt of report of the accident, Motor Accident Case No. 27/2001 was registered in Pimpalner police station. Initially, enquiry was conducted by Police Head Constable Haroon Shaikh, attached to the traffic department. During enquiry, he recorded statements of witnesses including those of the passengers who were travelling in the said vehicle. He also drew spot panchanama (Exh. 14) within two to three hours after the incident. After enquiry, on 13-8-2001, he lodged report in Pimpalner police station. On the basis of report, crime was registered at CR No. 67/2001 against the present applicant for offence under section 279, 337, 338, 427 of the Indian Penal Code and under sections 184, 134 r/w section 177 of the Motor Vehicles Act. On completion of investigation, charge sheet was filed in the court of the JMFC, Sakri and the case was numbered as STCC 1490/2001. Record further shows that substance of accusation was explained to the applicant at exh. 11 to which he pleaded not guilty and claimed to be tried. During trial, to substantiate the plea against accused, total six witnesses were examined by the prosecution including PW 1 Haroon Shaikh, who conducted enquiry and lodged report, PW 2 Dayanand Narayan Pisolkar, PW 3 Chhotu Mahadu More, PW 4 Gatalu mahadu More, PW 5 Sitabai Gatalu More and PW 6 Ushabai Chhotu More. All these witnesses (PW 2 to PW 6) were travelling in the said vehicle at the time of accident. It is the defence of the applicant / crirevappln76.10 4 accused that at the time of incident / accident there was rain. There was turn on the spot where the accident took place and some oil was spread on the road. Due to rain and oil spread on the road, his vehicle skid and toppled down from the side i.e. rough road of the main road and turned turtle. He was not at fault in causing the accident. According to him, the accident was due to error of judgment and not due to high speed and rash and negligent act. It appears that learned lower court did not accept defence of the accused / applicant herein and convicted him for offence under sections 279,334 of the Indian Penal Code and section 134 r/w section 177 of the Motor Vehicles Act and sentenced the applicant as stated above. It further appears that the judgment and order of conviction was challenged in Criminal Appeal no. 120/2008 before the learned Sessions Court, Dhule. Appeal was dismissed and the order of conviction and sentence recorded by the trial court was confirmed by the learned Additional Sessions Judge, Dhule vide judgment and order dated 2-3-2010 which order is impugned in this criminal revision application. 3 As this criminal revision is under section 397 r/w section 401 of the Indian Penal Code and there is concurrent finding of facts, there is very little scope to find out whether there is any perversity in recording of findings by crirevappln76.10 5 the courts below. Re-appreciation of evidence for which there is concurrent finding by both the courts below is not permissible in the revisional jurisdiction of this court. 4 Heard learned counsel for the applicant followed by submissions of learned APP for the State. Learned APP supported the judgment and order impugned in this criminal revision passed by both the courts below and prayed for dismissal of the criminal revision application. During the course of submissions across the bar, learned counsel for the applicant urged that considering the spot panchanama exh. 14 which indicates that the vehicle is found in toppled condition by the side of the road and at that place some spot of oil was noticed, there is apparent error by both the courts below in record the fact findings. This fact is not only disclosed in the spot panchanama exh. 14, but it also finds place in cross examination of PW 1 Haroon Shaikh who conducted preliminary enquiry and thereafter lodged report on the basis of which offence came to be registered in Pimpalner police station. Learned counsel for the applicant further urged that PW 1 Haroon Shaikh so also witnesses Dayanand and Gatlu have admitted in their deposition that at the time of incident / accident, there was raining and it was drizzling. It is further urged that it is required to be considered that after crirevappln76.10 6 the vehicle met with accident, the vehicle was not examined by mechanical expert of which report is on record. There is passing reference in cross examination of PW 1 Haroon Shaikh that the vehicle was examined by the mechanic and he did not find any mechanical fault in the vehicle. Learned counsel for the applicant further urged that experience and common knowledge reveals that when there is oil on the tar road and it is raining and drizzling, and if the vehicle passes from oil on the road, there are every chances that the vehicle may skid. It is observed by the appellate court in paragraph no. 21 of the judgment that as no signs of application of break were noticed on the spot, inference is to be drawn that the vehicle was in high speed and the accident occurred due to rash and negligent act of the applicant who was driving the vehicle. 5 In the light of these submissions, perused the entire record. Even though in revision, re-appreciation of evidence is not permitted to satisfy whether the evidence of the passengers traveling in the vehicle demonstrates that at the time of accident the vehicle was in high speed and was driven in rash and negligent manner by applicant / driver of the vehicle. None of the witnesses have deposed that after the vehicle met with accident it was toppled repeatedly and then turtled. On the contrary, crirevappln76.10 7 evidence of these witnesses is ambiguous and omnibus, only saying that the vehicle was in speed. It appears from panchanama of spot exh. 14 that as there are no break marks and the vehicle was toppled once, the evidence is not sufficient to hold that the vehicle was in high speed and was driven in rash and negligent manner. Generally concurrent findings of fact recorded by both the courts below need not be disturbed without any cogent reasons. But the fact remains that the vehicle in question was not examined by mechanical expert to find out whether oil found on the spot of incident was the oil drained from the vehicle met with accident or it was of some other vehicle. At the same time, considering the nature of injuries sustained by the passengers travelling in the vehicle i.e. PW 2 to PW 6, it is clear that the vehicle toppled one from side i.e. rough road and then turtled. There are reasons to believe that this is a case of accident because of error of judgment and the act of nature and the accident was not caused due to rash and negligent driving by the applicant. 6 For these reasons, impugned judgment and order requires to be quashed and set aside. Accordingly revision application succeeds. Judgment and order dated 2-3-2010 passed in Criminal Appeal no. 120/2008 is quashed and set aside. Applicant / accused is acquitted from all the crirevappln76.10 8 charges levelled against him. Conviction and sentence against the applicant / accused stand quashed and set aside. His bail bonds stand cancelled. Fine amount be refunded to the applicant / accused. Rule made absolute accordingly. ( A. V. POTDAR, J. ) dyb