In the present case, except the bare words of 2
witnesses, who are interested witnesses, that the bus was in
high speed, there is no evidence to show that the bus was
driven rashly and negligently by the applicant. The Courts
below ought to have extended benefit of doubt to the
applicant. Accordingly, the said benefit is extended in favour
of the applicant and the Judgment and the Order of
conviction dated 03/04/1996 passed by the learned J.M.F.C.,
and the Order of conviction dated 01/02/2002 passed by the
learned Additional Sessions Judge, Nanded in Criminal
Appeal 33/1996 are hereby quashed and set aside.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 45 OF 2002
Gundappa Madolappa Samangave
V E R S U S
The State of Maharashtra
CORAM : V.M.DESHPANDE, J.
DATE OF JUDGMENT : 12 th JANUARY, 2015
Citation;2015 ALLMR(CRI)1060
The applicant, a S.T. Driver, on 02/02/1995 was
driving S.T. Bus bearing registration No. MH20/D1744.
He was plying the said bus from Kinwat to Latur. On State
Highway of Bhokar – Nanded near village Tatkalwadi,
accident took place. In the said accident Ashok Narayan
Wagadkar succumbed to the injuries as mentioned in Exh. 31,
the postmortem report.
The applicant – driver was prosecuted for the
2.
offences punishable u/ss 279 and 304A of the Indian Penal
Code in Crime No. 27/1995. In a criminal case bearing
S.C.C. No. 171/1995, the learned J.M.F.C., Bhokar framed
Charge against the present applicant. The applicant abjured
his guilt and claimed for his trial. In order to bring home the
guilt, the prosecution has examined in all 7 witnesses and
also relied on various documents.
3.
The learned J.M.F.C., Bhokar vide its Judgment
and order dated 03/04/1996 recorded a finding of guilt
against the applicant and sentenced him to suffer Simple
Imprisonment for 3 months and also ordered to pay fine of
` 1,000/ [Rupees One Thousand only], in default to suffer
Simple Imprisonment for 15 days for the offences punishable
u/ss 279 and 304A of the Indian Penal Code.
The applicant carried Appeal before the learned
4.
Sessions Judge, Nanded. The said Appeal was registered as
Criminal Appeal No. 33/1996 and the learned Additional
Sessions Judge, Nanded on 01/02/2002 dismissed the said
Appeal and thereby confirmed the order of conviction.
Hence, this Revision.
Heard Mr. H.M.Salve, the learned counsel for the
5.
applicant and Mr. V.H.Dighe, the learned A.P.P. for the
respondent – State. With their able assistance, I have gone
through the record and proceedings.
6.
Undisputedly, Ashok Narayan Wagadkar died in
the accident. It is also not in dispute that at the relevant
time the applicant was driving the illfated bus. The only
question that has to be answered by this court is, whether it
was a pure accident and whether the accident occurred due
to the rash and negligent driving on the part of the present
applicant ?
7.
The F.I.R. (Exh. 18) which is filed by Narayan
Sitaram Wagadkar, the father of the deceased, specifically
mentions about the standing of truck on the State Highway.
He also pointed out in the F.I.R. that the deceased was
standing near the said truck. From the evidence of the other
prosecution witnesses also, it is clear that the existence of
standing of truck is not in dispute, though the same is not
mentioned in the Spot Panchanama (Exh.20).
Important to note is that in the Spot
8.
Panchanama, there is recital about application of the brakes
by the driver of said S.T. bus. This particular aspect is very
lightly brushed aside by both the Courts below. We can not
forget that the S.T. bus is a heavy vehicle and it is impossible
to apply brakes suddenly and due to the sudden application
of the brakes, the vehicle will not stop then and there only.
Further it is admitted position that the accident has occurred
on the State Highway. Mere speed is not the sole criteria to
reach to the conclusion that the driver was driving the vehicle
rashly and/or negligently. While reaching to such
conclusion, the Courts are under obligation to verify the other
attending circumstances. If the accident is occurred in a
bazar, then the speed of 30 Km. per hour will also termed as
high speed, whereas 60 Km. per hour speed on a Highway
may not be termed as high speed. High speed itself is a
relative term. Bare words from the prosecution witnesses
that the bus was in high speed, can not be accepted,
especially when the accident has occurred on the middest of
the State Highway.
All these aspects are not properly considered by
9.
any of the Court below. The learned counsel for the
applicant has rightly pointed out to me the decision of the
Apex Court reported in the case of Mahadeo Hari Lokre Vs.
The State of Maharashtra, AIR 1972 Supreme Court 221,
wherein the Apex Court has observed as under, :
“ If a person suddenly crosses the road
the Bus Driver, however, slowly he may be
driving, may not be in a position to save
the accident. Therefore, it will not be
possible to hold that the Bus Driver was
negligent. ”
10.
In the present case, even the recital of the F.I.R.
clearly shows that the deceased was standing in front of the
truck on a Highway. Further, this Court, way back in the
year 1972, has ruled that there can not be any presumption
unless and until there is a cogent evidence to show that the
driver was driving the vehicle negligently and rashly as
observed in the case of Tukaram Sitaram Gore Vs. The
State of Maharashtra, AIR 1971 Bombay 164.
11.
In the present case, except the bare words of 2
witnesses, who are interested witnesses, that the bus was in
high speed, there is no evidence to show that the bus was
driven rashly and negligently by the applicant. The Courts
below ought to have extended benefit of doubt to the
applicant. Accordingly, the said benefit is extended in favour
of the applicant and the Judgment and the Order of
conviction dated 03/04/1996 passed by the learned J.M.F.C.,
and the Order of conviction dated 01/02/2002 passed by the
learned Additional Sessions Judge, Nanded in Criminal
Appeal 33/1996 are hereby quashed and set aside.
Bhokar in S.C.C. No. 171/1995 together with the Judgment
12.
The present Criminal Revision application is
allowed. The applicant Gundappa S/o Madolappa Samangave
is acquitted for the offences punishable u/ss 279 and 304A
of the Indian Penal Code. The applicant is on bail. His bail
bonds stand cancelled.
[V.M.DESHPANDE, J.]
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