IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.19 OF 2000 CRIMINAL REVISION APPLICATION NO.19 OF 2000 CRIMINAL REVISION APPLICATION NO.19 OF 2000 Sarjerao Maruti Gorad ..Applicant (Org. Accused) versus The State of Maharashtra (through Antop Hill Police Stn. Mumbai.) ..Respondent Mr.Machindra Patil for the Applicant Mr.Saste for the State CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 30th April, 2008. DATED : 30th April, 2008. DATED : 30th April, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The present applicant came to be arrested in regard to an incident of alleged negligent driving which took place on 9.5.1990 on the BEST bus route No.171, near about Antop Hill. The applicant was prosecuted in the Criminal Case No.982/P/1993 for offences under Section 279, 337. 338. 304A of the Indian Penal Code and Section 184 of the Motor Vehicles Act. The applicant was convicted by the learned Metropolitan Magistrate, 45th Court, Kurla, Mumbai, hereinafter referred to as the learned trial Judge, by his Order dated 27th October, 1997. The applicant was convicted under Section 337, 338, 279 and 304A of the Indian Penal -2- Code and sentence of different description came to be imposed upon the applicant with regard to each of the conviction. Being aggrieved by the judgment dated 27th October, 1997, the applicant filed Criminal Appeal No.149 of 1997 in the Sessions Court at Gr. Bombay. The learned First Addl. Principal Judge and Addl. Sessions Judge, for Gr. Bombay, hereinafter referred to as the learned Appellate Court, dismissed the appeal and confirmed the sentence of the applicant in regard to the case No.982/P/1993. The applicant herein has filed this revision being aggrieved by the judgment delivered by the learned trial Judge as well as by the learned Appellate Court. 2. I have with the assistance of Learned Advocate Mr. Machindra Patil, perused the evidence of the various witnesses who came to be examined during the course of trial. 3. Learned Advocate Mr. Patil pointed out that the incident took place at the circle of Antop Hill and that there is no clinching evidence to show that the applicant was driving the vehicle at fast speed, particularly because the witnesses have -3- given different version as regards the speed. He has also drawn my attention to the evidence of the bus driver for the route No.9 being bus driver-P.W.6 Shivaji Sawant. My attention was drawn to tthe evidence of this witness to show that after the bus turned turtle, the bus No.9 dashed against the said bus which was driven by the applicant. According to learned Advocate Mr. Patil this would mean that the accident did not take place on acount of head on collusion between the two buses but it is only after the bus No.171 turned turtle, the bus No.9 collided against the bus No.171. Learned Advocate Mr. Patil submitted that though P.W.1 Prabhakar states about the bus No.171 being driven in a fast speed, the other witness namely Yeshwant, the Conductor of bus No.171 says that the bus was plying at medium speed. According to Mr. Patil, the evidence as regards speed of the bus given by the Conductor will have to be treated as more reliable as the conductor has better experience of travelling in he bus and undertaking the journey. Mr. Patil further submitted that though the prosecution had examined one witness by name Sakharam, P.W.4, the said witness could not be cross examined to its -4- fullest extent in as much as, on record after the cross examination which was conducted on 26th March,. 1997 there is no cross examination on the record, thereby suggesting that this Court should not read the evidence of P.W.4 as the witness was not fully examined by the prosecution. Mr. Patil, therefore submitted that though the learned trial Judge as well as the learned Appellate Court had rendered the findings against the applicant as regards the manner in which the bus No.171 was driven by the applicant, the said finding is not based on proper appreciation of the evidence and therefore this Court should exercise the revisional jurisdiction and set aside the two findings and acquit the applicant from the relevant charges. 4. Mr. Saste appearing on behalf of the State supported the impugned judgment and submitted that the reading of evidence of prosecution witness would clearly go to show that the bus driver was negligent may be not in the terms of driving the bus at high speed, but maneuvering the bus at the circle particularly when the bus was a double decker bus. According to Mr. Saste from the evidence on record through witnesses produced by -5- the prosecution, it is abundantly clear that the applicant failed to take necessary care to maneuver the bus at the circle and that is how negligence is exhibited by the applicant. He submitted that in the course of the incident a person died and that is why charge under Section 304A was levelled against the applicant. He further submitted that the passengers in the bus had suffered injuries which may be treated as simple injury/ grave injuries and that is why the applicant was charged under Section 337 and 338 of the IPC. Mr. Saste further submitted that the Courts below have appreciated the evidence in proper perspective and the order of conviction rendered by the learned trial Judge and confirmed by the learned Appellate Court should not be set aside by this Court. 5. After having gone through the evidence on record, I am inclined to observe that the prosecution has not been able to prove the negligence on the part of the applicant beyond the shadow of reasonable doubt. It is required to be mentioned that the witness P.W.4 did not undergo full cross examination and hence the evidence of P.W.4 cannot be read. Witness, Conductor Yeshwant, -6- P.W.5, in terms stated that the bus was plying at medium speed and if that is the word coming from the conductor who has experience of travelling in bus as a part of the job, the said word is to be given appropriate weightage to hold that the bus was plying at medium speed. The driver of the bus No.9 has not specifically stated about the speed of the bus and he has stated that the bus turned turtle. In the next sentence he says that his bus had just touched the said bus and that is how the dash took place. He also says that he saw the bus after it had turtled. This will mean that Shivaji, P.W.6 nowhere specifically means that the applicant was negligent. Prabhakar-P.W.1 nodoubt states that the bus was being driven in a fast speed and he further says that it tilted on the road side. This witness in the cross examination has admitted that the road is having heavy traffic. This could be considered to mean that there was no scope for the applicant to drive the vehicle in a fast speed. This P.W.1 has further stated that he could not tell whether the accident occured as the driver of the bus i.e. of route No.171 made an attempt to take the vehicle in front of the other bus. This answer came in the way of earlier answer given by -7- him that he could not see the front portion before the impact. In any case, if there exist a situation, namely to avoid the impact on the person who is on the road such a situation could as well be seen and appreciated by the bus driver who is the best person to attend to the situation at site and not the passenger who is sitting behind the driver, may be in the 5th or 6th row and in the present case this witness Prabhakar was sitting on the 5th or 6th row from the right side on the upper deck. In the substance, the evidence of P.W.1 Prabhakar is not sufficient to convict the applicant towards the allegations of rash and negligent driving. Prakash, P.W.2 the person travelling on the lower deck states that the bus tilted on one side and he received injuries to his collar bone. There is no cross examinatin to this witness, naturally because this witness does not say a word about the speed. Abdul, P.W.3 another passenger, in the examination in chief states that the bus was in speed and the driver was not having control over the bus. This version does not appear in the police statement and this witness had to admit about the absence of such version in the police statement. Though technically this -8- ommission is not proved, it is pertinent to note that this witness admtis that the statement was not read over to him after it was recorded. In the substance, the evidence of this witness also is not of such magnitute to come to the conclusion that the driver of the bus was negligent. 6. The learned trial judge, recorded the statement of the applicant under Section 313 of Code of Criminal Procedure. It is peculiar to note that his statement consists of only seven questions and the evidence which is put to the applicant is practically a summary of the entire evidence which was recorded by the prosecution and this applicant was not put to the material in the nature of evidence led by each and every witness with reference to the nicities of the evidence rendered by each and every witness. For illustrations one can read question nos.3, 4, 5 and 6 and to that extent, in my view the applicant has suffered prejudice because he has not been able to explain the evidence rendered by the witnesses after witnesses, particularly when some of the witnesses have stated that the applicant was driving the vehicle in a fast speed. The applicant has, while -9- explaining the situation at question 6 stated that after the application of brakes, the bus turned around its body and thereafter it dashed the bus (this must be bus No.9). In the last question i.e. question No.7 he has tried to indicate as to how the accident took place. He states that his bus might have passed at a distance of 200 feet from the turning and that his vehicle was in the third gear and there was bus stop 100 feet away at the same time one person was crossing the road. He further states that he might have passed half the road, but he saw another bus i.e. route no.9 was coming. He further states that the pedestrian immediately turned and therefore he applied emergency brakes and therefore the bus turned around. This necessarily will have to be appreciated and on doing so it is clear that the applicant was not driving the bus in a negligent manner, but the situation at the site developed in such a way that the bus driver i.e. the applicant had to apply brakes which resulted in turning the bus because of the circle. 7. In my view, after having considered the aforesaid evidence and the answers given by the -10- applicant to the questions put to him under Section 313 Cr.P.C. one thing is clear that the applicant was not driving the bus in a high speed. The only question is whether the applicant failed in maneuvring the bus at the circle and the answer to that is that the applicant failed in maneuring the bus at the circle and in my view that cannot come within the ambit of the term negligent. In view of the aforesaid observations, I am inclined to observe that the prosecution has failed to prove the guilt of the accused beyond shadow of reasonable dobut in regard to the charges which were levelled against him and for which he had to face the trial. It is true that the learned trial judge as well as the learned Appellate Court have held the applicant guilty under various sections. However, in my view, if the two courts would have looked to the entire record in the proper perspective coupled with the answers given by the applicant to the questions put to him under Section 313 of Cr.P.C. the applicant could have got the benefit of doubt in the facts and circumstances of the cse. It is for this reason that I am inclined to set aside the judgment delivered by the learned trial Judge as well as the judgment delivered by -11- the learned Appellate Court and acquit the applicant of the charges for which the applicant had to face trial. Accordingly, I pass the following order: ORDER ORDER ORDER . Rule is made absolute. . The Order dated 27th October, 1997 passed by the learned Metropolitan Magistrate, 45th Court, Kurla, Mumbai as also the Order passed by the First Addl. Principal and Addl. Sessions Judge, Gr. Bombay in Criminal Appeal No.149 of 1997 are set aside. Conviction of the applicant under Section 337, 338, 229, 304A of IPC is set aside. The various sentences imposed upon the applicant under the respective sections are set aside. The bail bond of the applicant stand cancelled. . If the applicant has deposited the fine in regard to each count, the said fine amount be repaid to the applicant. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)