1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVITION APPLICATION NO.495 OF 2009 WITH CRIMINAL APPLICATION NO.443 OF 2009 Nahir Farid Nishandar .... Applicant Vs. The State of Maharashtra .... Respondent Mr. Amit Sale i/by Tushar Pimple, Advocate for applicant. Mr. J.P. Kharge, APP for State. Coram : Smt. R.P. SondurBaldota, J. Date : 29th August 2009 PC : 1. The revision applicant herein has been convicted of the offence punishable under Section 279, 304(A) Indian Penal Code and Section 184 Motor Vehicles Act and awarded sentenced of rigorous imprisonment for three months, six months and three months for the three offences respectively. The sentence also includes fine of Rs. 1,000/-, Rs.2,000/- and Rs.500/- respectively for the three offences. The applicant challenged his order of conviction by preferring an appeal to the District Court, which appeal was dismissed by the order dated 3rd August 2009. 2. The two ground on which the applicant contends that the impugned judgment and order is erroneous and illegal 2 are i) failure on the part of the prosecution to establish identity of the applicant as the driver of the offending vehicle and ii) the probability of the accident. 3. It is not disputed that the accident took place on alleged date and time in which a person by name Rekha died by falling from the motor cycle with the rear wheel of the offending vehicle i.e. the tractor running over her head. The applicant contends that the prosecution has not established his identity as the driver of the offending vehicle at the relevant time. Both the Courts below have noted that the applicant was served with the notice under Section 209 Motor Vehicles Act which is a pre-requisite for conviction of the driver under Section 184 Motor Vehicles Act. Receipt of notice is not disputed by the applicant. The trial Court has also noted that PW-1, Appasaheb Rajmane, the husband of deceased Rekha in his deposition has stated that at the relevant time, the offending vehicle, i.e. the tractor was being driven by the applicant. As per the prosecution case, the offending vehicle and the motor cycle on which the deceased was riding as a pillion rider were running in opposite direction, when PW-1, who was riding the motor cycle, saw that the offending vehicle was being run in a rash and negligent manner. He moved his motor cycle to the side of 3 the road and stopped there to allow the offending vehicle to pass. However, the rear wheel guard of the offending vehicle hit the deceased. She fell down and rear wheel of the tractor ran over her head. PW-1 stated in his evidence that he had seen the applicant driving the offending vehicle. With this evidence, in my opinion, both the Courts below have correctly arrived at the inference as regards establishment of identity of the applicant as the driver of offending vehicle. 4. Mr.Sale, the learned Counsel for the applicant submits that if the facts alleged by the prosecution are to be accepted, there could be no probability of the accident. He submits that at the relevant time, the deceased was sitting as a pillion rider facing the East side. If the rear wheel guard of the offending vehicle were to hit her, she should fall on the opposite direction i.e. on the West side. In that case, there would be no question of the wheel of the offending vehicle running over her head, because the offending vehicle was on the East side of the motor cycle. It has also been submitted by him that it would be difficult that the rear wheel guard would hit the deceased alone without touching PW-1 and the children sitting behind him. The Courts below have noted that PW-1 and two children were sitting astride on the motor cycle, 4 whereas the deceased was the only person sitting with both her legs on one side i.e. East side. In such case, the exposure of the body of the deceased to the offending vehicle was definitely far more. Further as has rightly been observed by the learned trial Judge that in case of accident, it is difficult to make any logical guess, as regards the direction in which the deceased would fall on being hit by another vehicle. It all depends upon the manner in which the person is sitting on the vehicle, the extent and manner of the impact of the offending vehicle. In the circumstances even on the probability of the accident, the view taken by the Courts below is a reasonable and possible view. 5. In my opinion, for the reasons stated above, the impugned judgment and order does not warrant interference. Hence, the Revision Application is dismissed. 6. In view of dismissal of the Revision Application No. 495 of 2009, the Criminal Application No.443 of 2009 does not survive, the same is accordingly disposed off. (Smt.R.P.SondurBaldota,J.)