1 Criminal Revision Appl.No.146 of 2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.146 OF 2011 Nitin S/o.Vijay Kamble, Age-25 years, Occu-Service, R/o.Jawala, Tq.Jamkhed, Dist.Ahmednagar APPLICANT VERSUS State of Maharashtra RESPONDENT Mr.S.J.Salgare h/f. Mrs.S.S.Jadhav, learned counsel for the applicant. Mr.S.D.Kaldate, learned A.P.P. for respondent State (CORAM : A.V.POTDAR, J.) DATE : 15/09/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. By consent of the parties, heard finally at the stage of admission itself. 2. Challenge in this criminal revision application is to the judgment in Criminal Appeal No.115/2007, which came to be dismissed by the learned Additional Sessions Judge, Ahmednagar vide his judgment and order dated 23/06/2011 confirming the conviction and sentence awarded by learned J.M.F.C. Jamkhed in 2 Criminal Revision Appl.No.146 of 2011 RCC No.43/2005 by its judgment and order dated 24/08/2007, convicting the revision applicant for an offence punishable u/s. 304(A), 279 of the IPC, for which he was sentenced to suffer RI for 2 months and to pay fine in the sum of Rs.1,000/- with the default stipulation to undergo further RI for 15 days. 3. Such of the facts as are necessary for the decision in this criminal revision application, may briefly be stated thus. On 12/04/2003, revision applicant was driving jeep MH-25- A-582 on Jamkhed-Kharda road in which victim Dattu Sanap and others were travelling. At about 7 p.m.,when the vehicle was passing from the curve on Jamkhed-Kharda road, at that time, victim Dattu, who was travelling in the jeep, was fallen on the road and had sustained injuries. In the process of shifting him to the hospital, he succumbed to his injuries. Report of the accident was lodged in Jamkhed Police Station by one Babasaheb Khade (P.W.No.3). On the basis of that report, AD No.16/2003 was registered in Jamkhed Police Station, Dist. Ahmednagar. Investigation was carried out by one Ashok Ukirde. On completion of investigation, charge sheet came to be filed against the applicant in the Court of J.M.F.C. Jamkhed and the case was numbered as RTC No.43/2005. J.M.F.C. Jamkhed had framed charge against the revision applicant at Exh.8 for an offence punishable u/s. 304(A), 279 of the IPC and u/s. 183, 184 of the Motor Vehicle Act. Record shows that to substantiate the charge lavelled against the applicant, prosecution had examined in all 5 3 Criminal Revision Appl.No.146 of 2011 witnesses including Dinkar Sangale (P.W.No.1) and Arjun Sangale (P.W.No.2), who were co-passengers and were travelling in the said jeep at the time of alleged incident, Babasaheb Khade (P.W.No.3), the relative of the deceased, who reached at the spot on receipt of information about the accident, and who had lodged report in Jamkhed Police Station, P.W.No.4 Prabhakar Kulkarni, panch witness to the seizure of the jeep and to the spot panchnama Exh.23, Ashok Ukirde (P.W.No.5), the Investigation Officer. Defence of the revision applicant is that at the material time the deceased was in drunkard condition and was listening transistor. He had prohibited the deceased to board in the vehicle in question and he had no knowledge as to when deceased boarded in the jeep from opposite direction. It is his further defence that to avoid collusion with truck, revision applicant had taken his jeep at one side and in that process, deceased fell on the road, of which also he had no knowledge. To prove his defence, revision applicant had examined one Shahaji Gaikwad. It appears that learned J.M.F.C. was not pleased with the defence taken by the revision applicant and vide his judgment dated 24/08/2007, the applicant was convicted for an offence punishable u/s. 304, 279 of the IPC and sentenced as stated above. At the same time, acquitted the revision applicant for the offence punishable u/s. 183, 184 of the M.V.Act. It appears that revision applicant had preferred an appeal questioning the correctness of his conviction and sentence before the learned Sessions Court at Ahmednagar. Vide judgment and order dated 23/06/2011, learned Additional Sessions 4 Criminal Revision Appl.No.146 of 2011 Judge, Ahmednagar had dismissed the appeal, which judgment and order is impugned in the present criminal revision application. 4. I have heard learned counsel Shri.Salgare for revision applicant and learned A.P.P. for State. I have also perused the record and proceeding received from the Trial Court. As this is a revision application u/s. 397, 401 of the Cr.P.C., there is very limited scope as to find out whether there is any perversity in the findings recorded by both the courts below while coming to the conclusion that the applicant is guilty for the offence for which he was sentenced and convicted by both the Courts below. 5. At the time of incident, applicant was the driver of the vehicle is not under dispute. Deceased Dattu was travelling in the jeep is also not under dispute. The witnesses Dinkar and Arjun were examined on behalf of prosecution who were also travelling in the same vehicle, is also not under dispute. Before proceeding further, it is necessary to consider whether the defence taken by the revision applicant is proper and incorrectly rejected by both the Courts below. The defence taken by the revision applicant is 3 folded, first at the material time, deceased Dattu was under influence of liquor. Report of the post mortem is not under dispute. It clearly reveals from the post mortem report that no symptoms of alcohol were found in the body of the deceased. Thus the defence that the deceased was under influence of liquor at the time of accident is rulled out. The second 5 Criminal Revision Appl.No.146 of 2011 defence taken that at the material time, deceased was listening transistor and he lost his balance. Spot panchnama nowhere shows that any transistor was found at the spot, neither it was recovered at any point of time during investigation. Thus this defence is also not acceptable. The third defence taken by the revision applicant is that at the material time, one truck was coming from the opposite direction and to avoid collusion with that truck, he had taken his jeep at one side. This defence was denied not only by the prosecution witnesses, but also by the defence witness. Thus the defence taken by revision applicant was correctly rejected by both the courts below. Now the question remains that whether at the material time, the applicant had driven the vehicle in question in rash and negligent manner, because of which, one death was caused To this effect, there is con-current finding recorded by both the Courts below. 6. During the course of submissions across the bar, learned counsel for the applicant drawn my attention towards the observations of the Trial Court in its judgment from paragraph no.22 to 24 and urged that the Trial Court had recorded different findings while coming to the conclusion on the point whether the revision applicant has committed an offence punishable u/s. 304(A) and 279 of the IPC and whether the applicant has committed an offence punishable u/s. 183 and 184 of the M.V.Act, came to the differnent conclusion. Learned counsel for applicant tried to urge that 6 Criminal Revision Appl.No.146 of 2011 considering the ingredients which required to be established to prove an offence punishable u/s. 304(A) and 279 of the IPC are in similar line which are required to prove the offence u/s. 183 and 184 of the Motor Vehicle Act. While rejecting the evidence of P.W.No.1 and P.W.No.2 and to record the finding in negative for the offence u/s. 183 and 184 of the M.V.Act, it is observed by both the courts below that these witnesses are not expert to count speed but from their testimony, it is specifically observed in paragraph no.22 and 23 that considering the evidence of defence witness, it can be revealed that the vehicle in question was driven by the applicant in rash and negligent manner. The description of the spot where the accident took place is not under dispute and it was the spot where there was curve to the Jamkhed-Kharda road and the vehicle was on the slope. If this is the situation brought on record, then I do not find any fault with the conclusion drawn by both the Courts below that the vehicle was driven by the revision applicant in rash and negligent manner. 7. Lastly, it is urged by the learned counsel for applicant that during the trial, before his release on bail, the applicant was in custody for about 15 days. It is further urged that if the Court comes to the conclusion that there is no merit in the revision, then the quantum of punishment to be reduced to the extent the imprisonment already undergone by the applicant. In the accident, Dattu lost his life. It is in the evidence of defence witness that the applicant was driving the vehicle, which was having no permit to 7 Criminal Revision Appl.No.146 of 2011 carry the passengers. It has also come in the evidence that the vehicle was over-loaded as the passengers were not only inside the vehicle, but were also on the top of the vehicle, which goes to show the mentality of the applicant, in which manner, the vehicle was used. This practice required to be deprecated somewhere. 8. Considering this aspect, I do not find any merit in the revision application. In the substance, revision application stands dismissed. Rule stands discharged. Applicant to surrender before the Trial Court within the period of 3 weeks to undergo remaining imprisonment as ordered by the Trial Court. In case, applicant failed to surrender within the stipulated period, learned Lower Court to issue warrant of arrest against the accused/applicant. Learned A.P.P. undertakes to intimate this order to the concerned S.P. (A.V.POTDAR, J.) khs/SEPT.2011/cri.rev.146-11