1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.239/2007. Shivaji Bhavrao Hawle - PETITIONER VERSUS 1) The State of Maharashtra & Ors. - RESPONDENTS ***** Mr.A.D.Shinde, Advocate for Petitioner; Mrs.B.R.Khekale APP for State; Mr.Rahul G.Joshi, Advocate for Respondent No.2. ----- CORAM : K.U.CHANDIWAL, J. DATE : 17th August, 2009. PER COURT : 1) Rule. Rule made returnable forthwith and Heard finally by consent of learned Counsel for the parties. 2) In an unfortunate accident, when the complainant was carrying his injured daughter for hospitalization, proceeding on the main high-way, a jeep driven by respondent no.2 -Jagannath s/o Dashrath Kakde, came from the high-way, proceeding ahead and there was collision between 2 the two vehicles. Resultantly, the daughter of the complainant, who was already in injured condition, succumbed and expired. 3) Two eye-witnesses were examined before the learned Judge, about whom the learned Judge gave reference in paragraph 14 of the judgment. Paragraph 13 of the judgment is the crux, wherein the learned Judge ultimately felt that the accident could have been caused due to negligent driving of the complainant at the material time. 4) The parameters to consider the provision of Section 304-A of IPC relating to causing death by negligence are - (i) That the accused has caused the death of any person; (ii) That such death was caused by the accused during any rash act or that such death was caused by the accused doing any negligent act; and (iii)That such act did not amount to culpable homicide. 5) In order to attract this provision, the prosecution is required to establish - 3 (i) It is the accused, who did some act which was rash or negligent; (ii) It entailed death of any person; (iii) This death is the direct result of the rashness or the negligence; (iv) that this rash and negligent act did not amount to culpable homicide. 6) The position of law is clear, as indicated in the Judgment of Mohammed Aynuddin @ Miyam Vs. State of Andhra Pradesh – AIR 2000 SC 2511, wherein the Apex Court has observed as under : “The principle of res ipsa loquitor is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrong doer. A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a 4 rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.” 7) In the matter of Syed Akbar Vs. State of Karnataka – AIR 1979 SC 1848, the law is clearly indicated. The law laid down in the subsequent matter reported in (1998) 8 SCC 493 in the matter of State of Karnataka Vs. Satish, also needs consideration. 8) In the situation, without adverting to the defects in appreciation of evidence by the learned Judge, the matter is remitted to the learned Judicial Magistrate First Class to read the evidence in proper perspective and pass appropriate orders. Hence, order - 5 9) The impugned judgment and order of acquittal recorded in Criminal Case No.1763/2005 by learned Judicial Magistrate First Class, Sillod dated 14.8.2007 is quashed and set aside. The matter is remitted to the learned Judge to reconsider the evidence brought on record by the parties in the light of legal position and decide the same in accordance with law. 10) The accused to appear before the learned Judge on 23rd September, 2009. 11) Rule is made absolute in above terms. ( K.U.CHANDIWAL ) JUDGE bdv/crrv239.07