1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO. 48/2010 Anil s/o Janardhan Rathod, Age : 26 years, Occu. Labourer, R/o Bangla Tanda, Tq. Paithan, Dist. Aurangabad. ...Applicant. Versus The State of Maharashtra, through Public Prosecutor, High Court of Bombay, Bench at Aurangabad. ....Respondent. Mr. R.L. Kute, Advocate for applicant. Mr. S.N. Kendre, A.P.P. for respondent / State CORAM : A.V. NIRGUDE, J. Date : 16th September, 2010. ORAL JUDGMENT :- 1 This revision is filed to challenge the concurrent finding of the Courts below that the applicant was guilty of offences punishable under Section 279 and 304-A of Indian Penal Code. The applicant has been awarded sentence of simple imprisonment for three months for the offence under Section 279 and simple imprisonment for six months for the offences punishable under Section 304-A of Indian Penal Code. He is also directed to pay a fine of Rs.2,000/- for offence under section 304-A of Indian Penal Code, with a default clause. 2 On 01/06/2005 between 9.00 a. m. and 9.30 am. a boy of ten years was sitting to answer nature’s call by the side of a public road. The applicant was driving a tractor and he crushed the boy under the wheels causing his death. The Court below 2 scanned the substantive evidence and held that the prosecution had proved the case against the applicant. 3 The learned advocate appearing for the applicant raised two points to challenge the legality of the impugned judgments. Point No.1:- 4 The learned advocate appearing for the applicant pointed out from the evidence that there is discrepancy in the depositions of the eye witnesses in respect of the identity of the vehicle which crushed the victim. He pointed out the deposition of the prosecution witness No.2 who said that the vehicle which caused accident, was of blue colour, whereas the vehicle that was found on the spot after the incident to the police and the prosecution all along believed that the vehicle that was found near the side of the accident was of red colour. He pointed out further that no other eye witness specifically stated in his substantive evidence that the vehicle which caused accident was of red colour. From the evidence that has come before the Court, one may not be able to accept the contention of the learned Advocate. Despite the discrepancy in respect of colour of the vehicle mentioned by the prosecution witness No.2, there is no difficulty in accepting the case of the prosecution that the vehicle that caused accident was of red colour. This inference is easily drawn from the contents of the scene of offence panchanama. This scene of offence panchanama shows that the vehicle was found standing facing north on the eastern bank of the north- south road. It is not in dispute that the victim was sitting on that side of the road for defecating. The incident took place at about 9.30 a. m. in the morning which was broad day light and many by-standards witnessed it. It has also come on record that the vehicle that caused accident was stopped, few feet away from the spot of 3 occurrence and so the contents of the panchanama are more reliable than the testimony of the prosecution witness No.2. Besides the identity of the vehicle was never in dispute when the matter was before the lower Courts. Although the identification of the vehicle is not in dispute, Point No.2:- 5 I think the second point that the learned advocate appearing for the applicant raised, is more arguable.He said, there is no evidence on record to show that the offending vehicle was driven by the applicant. There are four eye witnesses. But the evidence of the prosecution witness No.5 alone is taken into account by the learned judge of the lower appellate Court, for convicting the applicant. The learned judge of the lower appellate Court rightly rejected the reliability of the testimony of prosecution witnesses No.1, 2 and 3. 6 So, the deposition of the prosecution witness No.5 is the only link for connecting the applicant with the guilt. The Prosecution witness No.5 in clear terms stated before the Court that at the time of incident, he was present at the scene of offence and he then narrated how the accident took place and he also said that he would be able to identify the driver of the vehicle. Since the time of recording of his deposition, the applicant / accused was not present before the Court, he could not get an opportunity to identify the applicant as the driver of the vehicle but the learned judge of the lower appellate Court rightly ignored this lapse saying that it was the applicant / accused who chose to the remain absent on the date of recording deposition of this witness and so the prosecution can not be blamed for it. The learned judge of the appeal Court opined that, had the applicant been present in the Court hall on that day the prosecution witness No.5 would have 4 identified him. 7 This witness was cross examined. There he admitted that he had gone to the Police Station on the date of incident and had lodged his complaint with the police in respect of the accident. He was then shown the complaint which the some police man had jotted down. He identified his signature on it. The witness denied the suggestion that at the time of incident he was not present at the scene of offence. He asserted that he was present at the time of incident. The defence was suggesting to him that in his complaint Ex.17 he had admitted that at the time of the incident he was elsewhere and not near the spot of occurrence. But unfortunately, though the complaint which was reduced into writing as per narration of this witness, has come on record as Ex. 17, neither the prosecution examined the police witness who had jotted down this complaint as per the narration of the prosecution witness No.5 nor the defence examined that police constable as defence witness. So, there is practically no proof of the contents of the document Ex. 17 except the signature of the prosecution witness No.5. 8 The question therefore, is whether the contents of this document can be read in evidence to discredit a version of the prosecution witness No.5 that he was present on the spot, when the accident took place? 9 Section 145 of the Evidence Act reads as under. Section 145:- Cross-examination as to previous statements in writing:- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, 5 be called to those parts of it which are to be used for the purpose of contradicting him.” 5 The defence indeed cross examined the prosecution witness No.5 on his previous statement which was reduced into writing. The writing was admittedly relevant to the matter in question. Since the defence wanted to contradict the witness with the contents of the writing, the defence rightly invited the witness’s attention to the contents of the writing. But Section 145 requires that thereafter the writing is required to be proved for the purpose of contradicting the version of the witness. As said above, the proof of this document has not come on record. In order to over come this difficulty the learned advocate appearing for the applicant placed reliance on the judgment of the Supreme Court in case of Bhagwan versus State of Punjab reported in AIR 1952 Supreme Court, 214. On going through this judgment however, it is found that this judgment is not of help to the submission made by the applicant’s advocate. All that the judgment says is how a witness can be cross examined in respect of his previous statement. As regards this, in this case the defence is effectively cross examined prosecution witness No.5 in respect of document Ex. 17. However, as said above, the contents of the document Ex. 17 are not proved. So they can not be used to contradict the version of the prosecution witness No.5. 6 It was submitted that the accused who was under obligation to prove his case only on probability and so he was not under obligation to prove the contents of the document by examining the writer of this document. It is submitted that since the document is of prosecution’s origin and since apparently this document was suppressed by the prosecution, the moment the 6 existence of this document is admitted by the prosecution witness, it comes on record, its contents stand proved. I am afraid, this argument is not acceptable because even as per Section 145 of the Evidence Act, a document which is required for contradicting the witness should be proved. In absence of such proof, the submission is not acceptable. However, the learned advocate appearing for the applicant rightly contended that after defence brought this document on record, it was the duty of the prosecution to examine the writer of this document to prove the contents of the same. Obviously, this document was not convenient to the prosecution and so they apparently avoided to prove it. If the fact that the prosecution witness No.5 had gone to the Police Station soon after the incident and if he had narrated something about the accident, such narration and the writing which was done as per the narration of such informer, was obviously the first information in respect of the incident. The prosecution did not want to treat this document as F.I.R. for reasons best known to them. They placed reliance on the narration which the father of the deceased gave to police on the next day of the incident. The father went to the Police station on the next day at about 2.45 p.m. and then narrated the incident. The police once again jotted down the information and then treated the same as the F.I.R. and then registered the offence against the applicant. If the police had a statement already on their record which they recorded on the previous day and if that statement was relevant to the incident, the police ought to have treated that statement as the F.I.R. This discrepancy in the prosecution case would at least affect adversely the testimony of the prosecution witness No.5. A considerable doubt is created in respect of his credibility through this circumstance. I am therefore, inclined to hold that the testimony of prosecution 7 witness No.5 should be discarded. In absence of this link, the prosecution would fail to prove the case against the applicant. 7 What is proved by the prosecution is that on 01/06/2005, a person at 9.30 a. m. drove his tractor on a public way in a manner so rash as to endanger human life etc. The prosecution also could prove that that person who drove vehicle in such manner, had caused death of the victim. But the prosecution could not prove that the applicant was the person who drove the vehicle. The revision should therefore succeed. ORDER The revision application stands allowed. The applicant stands acquitted of the offences punishable under Section 279 and 304-A of Indian Penal Code. (A.V. NIRGUDE, J.) ts k/ok