1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL REVISION APPLICATION NO. 75 OF 2010 (Deoraj Karuji Muneshwar .v. State of Maharashtra) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri Shashikant Borkar, Advocate for the applicant. Shri M.J. Khan, APP for the respondent/State. CORAM : PRASANNA B. VARALE, J. 09TH SEPTEMBER, 2011. Heard the learned Counsel appearing on behalf of the respective parties. By way of present revision application, the applicant/original accused, who is challenging the judgment and order dated 07th December, 2007 passed by the learned Judicial Magistrate, First Class, Sakoli in Summary Criminal Case No. 2633/2004 and the judgment and order dated 29th April, 2011passed by the learned Sessions Judge, Gondia in Regular Criminal Appeal No.01/2008 thereby partly allowing the appeal. The brief facts giving rise to the filing of the present revision application are as under:- On 10.07.2004 at about 1400 hours at Mouze Deori near ITI on Amgaon Road, the applicant/accused drove auto rickshaw bearing No. MH-35-2338 in a high speed, rashly and negligent manner. The auto rickshaw was overloaded with the passengers and due to the high speed and negligent driving, the auto rickshaw turned turtle and the passengers sitting in the auto rickshaw sustained injuries. The injured were taken to the hospital immediately. On receiving the information, the Investigating Officer rushed to the sport, prepared the spot panchnama, recorded the statements of the witnesses and submitted the Enquiry Report to the Police Station. On the report, an offence vide Crime No. 50/2004 under Sections 279, 337, 338 of the Indian Penal Code read with Sections 184, 21(20) and 177 of the Motor Vehicles Act came to be registered. 2 On completion of the investigation, the final report was filed. It was the case of the prosecution agency that the applicant/accused drove the auto rickshaw in a high speed and in a negligent manner and caused the accident. The auto rickshaw was overloaded with the passengers than the prescribed limit. The learned JMFC, on considering the evidence on record, arrived at a conclusion that the applicant/accused was guilty of the offence punishable under Sections 66 and 192-A of the Motor Vehicles Act as well under Sections 279, 337 and 338 of the Indian Penal Code. Being aggrieved by the said judgment and order, an appeal was preferred by the applicant/accused before the learned Sessions Judge, Gondia. The learned Sessions Judge, Gondia, by judgment and order dated 29th April, 2011, allowed the appeal partly. The conviction recorded by the learned JMFC of the offence punishable under Section 338 of the Indian Penal Code was set aside. Rest of the punishment awarded by the learned JMFC was maintained. Shri Shashikant Borkar, the learned Counsel appearing on behalf of the applicant/accused submits that the learned Sessions Judge in an appeal found that in absence of the medical evidence, the prosecution failed to establish that the applicant committed an offence under Section 338 of the Indian Penal Code. He further submits that in view of the finding of the learned Sessions Judge, it was necessary for the learned Sessions to acquit the appellant/accused for rest of the offences also. Learned Counsel for the applicant submits that as there was no material in the form of medical evidence, the offence under Sections 297 and 337 of the Indian Penal Code and offence under Sections 66 and 192-A of the Motor Vehicles Act were not proved against the appellant/accused. Shri M.J. Khan, the learned Additional Public Prosecutor appearing on behalf of the respondent/State has supported the impugned judgments. Heard the learned Counsel appearing on behalf of the 3 respective parties at length. Perusal of the judgment passed by the learned Sessions Judge, Gondia in appeal shows that the evidence on record was properly appreciated by the learned Sessions Judge. Though the defence was taken by the applicant/accused that at the relevant time, the appellant/accused was not driving the auto rickshaw but it was driven by one Prakash Mulla and at the request of Prakash Mulla, who was not possessing the driving license, the appellant/accused agreed to face the prosecution. On considering the evidence, the learned Sessions Judge found that the evidence of PW-2 and PW-3 which is cogent and reasonable, makes it clear that at the time of accident, the appellant/accused was the person who was driving the auto rickshaw. The defence taken by the appellant/accused was highly improbable. The version of the witnesses who were travelling in the auto rickshaw, namely, PW-2 Umashankar Chute and PW-3 Tularam Parteki establishes that the appellant/accused permitted more than ten persons to travel in the auto rickshaw which was clearly beyond permissible limits for transportation of the passengers. The evidence of the witnesses further shows that in spite of prohibition to permit the passengers to occupy the seat near the driver, the appellant/accused allowed to occupy the seat near him. The witnesses unequivocally stated that the appellant/ accused was driving the auto rickshaw in a high speed. The learned Sessions Judge has arrived at a conclusion in view of the version of PW-2 Umashankar Chute and PW-3 Tularam Parteki that as the appellant/accused was driving the auto rickshaw in a high speed with overloaded passengers, the auto rickshaw turned turtle and PW-2 and PW-3 sustained simple injuries. The learned Sessions Judge, therefore, observed that the learned JMFC has rightly held that the prosecution was successful in proving the offence against the appellant/accused punishable under Section 337 of the Indian Penal Code. On appreciating the evidence, the learned Magistrate found that PW-2 Umashankar Chute sustained injuries on his ribs, waist and abrasions over the 4 body; whereas PW-3 Tularam Parteki received injuries near his right ear and face. Though these witnesses were subjected to cross-examination, their testimony was unshaken. It was the case of the prosecution that PW-6 Shankar stated that his shoulder bone was fractured in the accident but as there was no medical evidence to support the prosecution case that PW-6 received such injury, the learned Sessions Judge in appeal rightly arrived at a conclusion that the prosecution failed to prove the offence against the appellant/accused punishable under Section 338 of the Indian Penal Code. In view of the aforesaid facts, I am of the opinion that the learned Sessions Judge has appreciated the evidence in proper perspective. The impugned judgment of the learned Sessions Judge, Gondia cannot be termed either to be perverse or illegal and calls no interference. In the result, the revision application is rejected. JUDGE *rrg.