1 (REVN 82/2001) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.82 OF 2001 Nanaso Annaso Patil .... Applicant. V/s The State of Maharashtra .... Respondent. Mr. Ganesh Gole for the applicant. Mrs. M.R. Tidake, APP for the State. CORAM: V. M. KANADE, J. DATE : 23rd September, 2010 P.C.:- 1. Heard the learned Counsel appearing on behalf of the applicant and the learned APP for the State. 2. Applicant is challenging the judgment and order dated dated 30/10/1996 passed by the learned J.M.F.C., Ichalkaranji, who, by the said order, was pleased to convict the applicant for the offence punishable under section 279 of the Indian Penal Code read with sections 112 and 116 of the Motor Vehicles Act and was pleased to direct him to undergo simple imprisonment for one month and to pay fine of Rs 100/- and, in default of payment of fine, to suffer further simple imprisonment for ten days. This order was 2 (REVN 82/2001) challenged by the applicant in appeal before the Sessions Court. However, his appeal was dismissed. 3. Brief facts are that the applicant was working as a driver with the State Transport and he was driving the S.T. Bus on Kolhapur-Sangli Road and when his bus approached village Shiroli, one truck was traveling ahead of him and the incident took place at 5.00 p.m on 17/06/1988. According to the applicant, the truck driver suddenly applied breaks since some cyclist had appeared from nowhere in front of his truck and, as a result, the S.T. Bus gave a dash to the said truck from rear side and the offence was registered at Shiroli, M.I.D.C. Police Station. The charge-sheet was filed. The charge was framed against the applicant. Prosecution examined two witnesses; one was the truck driver – P.W.1 and the other was the bus conductor – P.W.2, who was traveling in the said S.T. Bus. 4. The learned Counsel appearing on behalf of the applicant submitted that both the Courts below have committed material irregularity of relying only on the evidence of P.W.1 and discarding the evidence of P.W.2 who had given contrary version to the evidence given by P.W.1. He submitted that the Trial Court, therefore, adopted a procedure of accepting the statement of one witness and entirely discarding the statement of other witness. He submitted that, as a result of the said material irregularity in appreciation of evidence, judgment and order of both the 3 (REVN 82/2001) Courts below are liable to be set aside. 5. It is a well settled position in law that when a charge under section 279 of the Indian Penal Code is framed, the entire burden of proving rashness and negligence of the accused is on the prosecution and that burden cannot be shifted on the accused. Perusal of the evidence of two witnesses clearly show that P.W.2 has stated that the bus driver suddenly applied breaks and, as a result, the said S.T. Bus gave dash to the truck. Both the Courts below have not considered the question of rashness and negligence on the part of the accused. Even otherwise, if the evidence of P.W. 1 is taken into consideration, he has not stated that he had seen the S.T. Driver i.e the applicant herein driving in a rash and negligent manner. Trial Court, therefore, ought to have given benefit of doubt to the applicant on account of the contrary versions given by the two witnesses examined by the prosecution. Applicant, in his statement under section 313 of the Cr.P.C., has stated that the truck driver had tried to rescue the cyclist as a result of which he applied breaks suddenly and with the result his S.T. Bus gave dash to the truck. He has also stated that, after the incident, he asked the truck driver as to why he had applied breaks suddenly and he informed him that the cyclist had appeared from nowhere and, therefore, he had to apply breaks to save him. The same version has been given by the bus conductor. 6. In view of the said contrary evidence given by P.W.1 4 (REVN 82/2001) and P.W.2, in my view, prosecution has not established that the applicant was driving in a rash and negligent manner. It has to be remembered that merely because the accident takes place, it does not come within the purview of section 279 of the IPC and in order to bring action of the accused within four corners of section 279, burden is on the prosecution to prove this fact. In my view, in the present case, prosecution has miserably failed in establishing this fact and this vital aspect has not been considered by both the Courts below who appeared to have proceeded merely on moral ground by observing that the S.T. Drivers are normally reckless which can be seen from the following observations made by the learned J.M.F.C., First Class, Ichalkaranji:- “...........No doubt he is working as S.T. driver and in my opinion being S.T. Driver he has crossed all limits of vehicular traffic and therefore exemplary action must be taken against him......” Therefore, impugned orders passed by both the courts below are set aside. The order of conviction and sentence is quashed and set aside. Applicant – accused is acquitted of the offence punishable under section 279 of the Indian Penal Code and also under sections 112 and 116 of the Motor 5 (REVN 82/2001) Vehicles Act. 7. Accordingly Criminal Revision Application is allowed in terms of prayer clause (c). 8. Criminal Revision Application is disposed of. (V.M. KANADE, J.)