Full Judgment Text
: 1 :
2006:BHC-AS:24282
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE
CRIMINAL REVISION APPLICATION NO.167 OF 1998 CRIMINAL REVISION APPLICATION NO.167 OF 1998 CRIMINAL REVISION APPLICATION NO.167 OF 1998
Shri.Mohammed Sannaulla Gausmuddin .. Applicant
Amir Sab (Orig.Accused)
V/s.
State of Maharashtra .. Respondent.
(At the instance of Nigdi (Orig.complainant)
Police Station, Pune)
Smt.Sharmila Kaushik with Shri.Prakash Naik for the
applicant.
Shri.Rajesh More, A.P.P. for State.
CORAM : S.C.DHARMADHIKARI, J. CORAM : S.C.DHARMADHIKARI, J. CORAM : S.C.DHARMADHIKARI, J.
DATE : 22ND DECEMBER,2006. DATE : 22ND DECEMBER,2006. DATE : 22ND DECEMBER,2006.
ORAL JUDGEMENT : - ORAL JUDGEMENT : - ORAL JUDGEMENT : -
1. This is one more case of rash and negligent
driving of a truck/lorry on a busy road, namely,
Bombay-Pune Highway. The accident in this case resulted
in death of 5 (five) persons travelling in a small car
(Maruti-800). This car was crushed by the truck/lorry
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well passed midnight. The dead include a newly married
couple. Such incidents are increasing day by day.
Although this accident is of 1998, the situation has far
from improved. The number of licences issued to drive
vehicles, the brand of vehicles and latest models on the
road increasing so also the modern roads would see more
and more accidents on Highways and loss of precious human
lives. The warning issued by the Hon’ble Supreme Court is
futile in this era of speed and modernisation.
2. The applicant is original accused in R.C.C.No.4 of
1992 which was on the file of the 2nd Joint J.M.F.C.,
Pimpri, Pune. The applicant was accused of having
committed offences punishable u/s.279, 304(A), 338 & 427
of I.P.C. so also Sections 78, 112 & 116 of M.V.Act.
3. Upon trial, the applicant has been convicted by
the J.M.F.C., Pimpri, Pune on 24th June 1994 for the above
offences and has been sentenced to suffer simple
imprisonment for three months and fine of Rs.500/-. In
default to suffer simple imprisonment for one month. The
applicant has been convicted and sentenced for all
offences, save and except the one punishable u/s.427 of
I.P.C. The order of conviction and sentence reads thus :
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-
1. Accused Mohammad Sannaulla Gausmuddin Amir
Sab is hereby convicted for the offences
punishable under sect.304(A), 279, 338 of I.P.C.
r/w. 78/112/116 of M.V.Act (old) and he is
sentenced to suffer S.I. for 3 months and to pay
fine of Rs.500/- id/to suffer S.I. for one month
for Sec.279 of IPC he is further sentence S.I.
for 3 months and to pay fine of Rs.500/- i/d
suffer S.I. for month for the offence punishable
u/sec.338 of I.P.C. He is further sentenced to
suffer S.I. for one year and to pay fine of
Rs.500/- i/d to suffer S.I. for one months for
the offence punishable under sec.304(A) of Indian
Penal Code. He is further sentenced to pay fine
of Rs.300/- for the offence punishable under
sec.78/112/116 of motor vehicle act i/d. to
suffer S.I. for one month.
2. Accused is acquitted of the offence
punishable under sec.427 of I.P.C.
3. Accused has to under go imprisonment for
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all the sections concurrently.
4. His bail bond stands cancelled.
4. The applicant being aggrieved and dissatisfied by
this judgement and order, preferred Criminal Appeal
bearing No.161 of 1994 in the Court of Additional Sessions
Judge, Pune. The learned Additional Sessions Judge by his
judgement and order dated 10th July, 1998 dismissed the
appeal of the applicant. He maintained the conviction and
sentence. That is how the applicant is in revisional
jurisdiction before this court.
5. Ms.Kaushik appearing for the applicant-accused
submits that the courts below being committed an error
apparent on the face of the record while holding the
applicant guilty and pronouncing the sentence against him.
She submits that the incident is of 4th May, 1991. The
whole incident is of a collusion between a truck and a
Maruti vehicle. The truck was coming from Pune towards
Mumbai on the old Bombay-Pune road. The Maruti vehicle
was proceeding towards Pune. The prosecution story is
that the vehicle/truck was being driven at a very high
speed and rashly. Suddenly it came on its wrong side,
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namely, on the right side and hit the Maruti vehicle. The
accident was of such nature that the vehicle/Maruti came
under the truck and was crushed completely. About five
persons have died in the accident. The 6th person,
original complainant, namely prosecution witness Ashok
Agarwal was also travelling in the vehicle. He was
seriously injured. She submits that there were two
drivers, who were driving the truck at the relevant time.
The applicant was in fact sleeping when the vehicle was
being driven by the other driver. The applicant got up
with the sudden jerk when he heard some screeching sounds.
She submits that there were no eye witnesses to the
accident. It is a case of circumstantial evidence. The
applicant was admittedly not at the driving seat. There
are no independent witnesses. She submits that there are
material contradictions in the version of the prosecution
witnesses. These contradictions go to the root of the
matter. The contradictions in their version, if seen in
the backdrop of the site panchnama, would indicate that
there is no support to the prosecution story. Similarly,
the testimony of the injured witness is also not reliable
and trustworthy. She submits that the truck has not
crossed over to the right side. There was no divider. On
the other hand, it is clear that if the truck had dented
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on its left portion so also the glasspane of the window on
the left side having been broken, the entire version, that
the truck came on the wrong side i.e. right side of the
road, is false and totally unbelievable.
6. The material on record according to her would
reveal that it is the Maruti vehicle which was driven at a
very high speed and as there was a slope and it being
uncontrollable came on the wrong side of the road and that
is how was crushed allegedly. However, the same is not
possible considering the fact that the left side bumper of
the truck has been dented. In such circumstances, the
learned J.M.F.C. and the Additional District Judge were
in complete error in convicting the applicant. They
omitted to make any reference to these contradictions and
discrepancies. Once they have so omitted, their orders
can safely be termed as perverse. They are required to be
interfered with in revisional jurisdiction. In such
circumstances, this court must interfere and set aside the
same. Moreover, when this revision application has been
admitted on 23rd July, 1998 and the applicant has been
enlarged on bail for all this period, this court should
take an appropriate view of the matter.
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7. On the other hand, the learned A.P.P. supported
the orders passed by the courts below. He submitted that
the prosecution has proved that the truck bearing
No.CRT-8949 dashed against the Maruti vehicle by coming on
the wrong side of the road. There are six witnesses, who
have been examined. That there was a divider on the road
is a fact spoken by all the witnesses. He submits that
some minor contradictions in the prosecution version would
not be fatal to the case. In such circumstances, and when
revisional court cannot reappraise and reappreciate the
materials, this court should not interfere with the
concurrent orders of conviction and sentence. In other
words, he submits that the revision application be
dismissed.
8. With the assistance of the learned advocates
appearing for both sides, I have perused this revision
application and the annexures thereto. The courts below
have proceeded on the footing that on 5th May, 1991 on
Bombay-Pune road, the accident has occurred. The vehicles
involved are a truck bearing No.CRT-8949 and Maruti car
bearing No.MVL-529. Deaths have occurred in the Accident.
There does not appear to be any serious dispute with
regard to the place where the accident took place.
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9. Witness No.1 is Uttam Namdev Sandbhor, a Police
Constable attached to Nigdi police station at the relevant
time. He has deposed that he heard big noise at about
2.45 a.m. at the police chowky. He and his other
colleague Bakshraj rushed to the spot. The spot is
Bombay-Pune road. The truck was going from Pune towards
Bombay whereas the Maruti vehicle was coming from Bombay
towards Pune. The truck had crushed the Maruti vehicle.
His deposition is that the truck came on the wrong side of
the road. Four persons died on the spot and two were
injured. It is his version that the driver of the said
vehicle appeared before the police station under fear. He
gave his name as Mohammad Amir Sab. According to him, the
accident occurred because the truck was driven on the
wrong side of the road. The version of P.W.1 has not been
shaken in the cross examination. Save and except the
suggestion put to him that there were two drivers in the
truck and that the person who is before the court is not
one who was driving the truck, there is neither any
admission nor any omission or contradiction. The further
suggestion is that the applicant-accused was sleeping
behind the driver when the accident occurred and one Gopal
Kisanappa was driving the truck. Thus, beyond raising an
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issue of identity of the driver, there does not appear to
be any cross examination of this witness.
10. The other witness is Badhsha Abaasali Bakshraj.
He is also a police constable attached to Nigdi police
station. His version is that the truck driver was
available on his driving seat and he sent him to the
police station. It is his version that he informed P.S.I.
Shri.Jhagade about the accident. His version is that the
driver lost control over the truck and the truck went on
wrong direction and dashed against the Maruti car which
was coming from opposite direction. However, he also
named the driver as one Mohammad Amir Sab as driving the
truck.
11. In his cross examination, he was asked questions
with regard to the spot where the accident took place.
There are some minor variations with regard to the
accident place, whether it is on the southern or on the
northern side. However, he has deposed that when he
reached the accident spot, the accused-applicant was
available in the driving seat. The constable told him to
come to the police station and inform about the accident.
His further cross examination is with regard to the
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injuries and the injured persons being shifted to the
hospital. A suggestion is given as to who accompanied him
to the hospital. Once again, he is questioned with regard
to the identity of the driver. A suggestion is given that
the person driving the vehicle ran away whereas the
accused-applicant being sleeping in the truck at the
relevant time, was caught. Thereafter suggestions are
given with regard to the negligence of the vehicle
drivers. It was suggested that the Maruti vehicle came at
a high speed and on account of negligence of its driver,
the accident occurred, which suggestion is also denied by
him.
12. P.W.3 is one Bhanudas Mahadev Sasane, who is a
Panch witness. He has identified the accident spot. He
also deposed that the Maruti car was totally damaged. The
right side of front portion of truck was pressed and there
was white colour on the bumper portion.
13. His version is also not shaken in the cross
examination, save and except suggesting that it was too
early in the morning and it is not possible that the Panch
witness would be available for carrying out panchanama and
identifying the spot at such an hour where the accident
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occurred. He was also questioned as to when he was told
to come and act as a Panch witness but that, to my mind,
does not affect the testimony adversely.
14. The other person, who has been examined as a
witness is one Ashok Banaridas Agarwal. He was travelling
in the Maruti vehicle. He has witnessed the accident. He
was himself injured and carried to Ruby hospital. He has
said that five other passengers in the Maruti vehicle have
expired. His deposition is that the truck came from
opposite direction, crossed the divider and dashed against
the vehicle namely Maruti car. The suggestion given to
him was as to how many persons can travel in the Maruti
vehicle. He was also asked as how many persons can sit in
the front portion of the car and it is not possible that
three persons can sit in the front and rest at the rear.
He was also questioned with regard to road divider. It
appears that the suggestion is that there was no divider
which divides the road. It is not necessary to go into
these aspects in the revisional jurisdiction for the first
time because it is nobody’s case that the road was not
open to traffic from both sides.
15. The testimony of the other witnesses is not so
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much material.
16. However, Ms. Kaushik has invited my attention to
the spot panchanama. She submits that the spot panchanama
which is placed on record in this case is not accompanied
by any sketch. The exact spot and location of the
accident remains unidentified. Moreover, it is her case
that this spot panchanama reveals that the truck has
suffered a dent on the left side. There was a tree which
damaged the left portion and broke the left window pane of
the truck. It is her submission that it is impossible
that the left side portion of the truck would be damaged
in the accident. Unless the vehicle comes from the
opposite direction and dashes against the truck towards
the left side, it would not suffer any damage or dents.
Further, the Panch witness states that the driver was
there in the vehicle. In fact, the driver had ran away is
her version.
17. It is not possible to accede to the submissions of
Ms.Kaushik that the accident occurred because the Maruti
vehicle was being driven at a high speed and came on the
wrong side of the road. That is not the case put to any
witnesses during the trial. The accused has not examined
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anybody in his defence. In such circumstances, it is not
appropriate to entertain such contention in this court for
the first time.
18. The courts below have after taking into
consideration all materials negatived the contention of
the applicant that he was not driving the vehicle. The
courts below have rightly observed that if such is the
nature of the defence, then the burden shifts to the
applicant and he has to show that he was not driving the
vehicle.
19. The entire emphasis before the courts below is on
the identity of the person driving the vehicle and the
applicant contended that he was not driving the same.
20. The courts below have observed that there is no
dispute about the accident and the spot where it took
place so also the road. Considering that the car was
crushed under the truck and the truck dragged it, so also
the truck’s right portion being bent, it is clear that the
version of P.W.1 is corroborated by other witnesses
including spot panchanama. The accident took place within
the vicinity of a police chowky.
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21. Further, a person travelling in the vehicle,
namely, Ashok Banaridas Agarwal has also deposed and his
testimony is found to be trustworthy and reliable.
22. It is in such circumstances that the courts below
have concurrently observed that the accident has occurred
on account of rash and negligent driving of the truck
driver and also his identity is not in dispute. Once the
vehicles involved in the accident are clearly identified
along with the place at the time of its occurrance, then,
it is futile to suggest that some other person was driving
the vehicle. It is nobody’s case that the applicant was
not in the truck at all. The case is he was not at the
driver’s seat. This has to be proved by the applicant but
he did not lead any evidence. All three witnesses
examined by the prosecution have said that the driver came
to the police station and gave his name as Mohammad Amir
Sab. Thus, there is no substance in this contention of
Ms.Kaushik. Merely submitting that the applicant was not
the one who was driving the vehicle would not be enough
for the driver-applicant to escape his responsibility and
liablility. Something more was necessary to be placed on
record which is not done and that is how the applicant is
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held guilty of the offence alleged.
23. The lower Appellate Court has properly analysed
the evidence, scrutinised it and appraised it in
accordance with the well settled principles in law. It
has fully performed its duty as a first Appellate Court.
Its observations and findings at para 15 to 18 would show
that the accident occurred on account of rash and
negligent driving by the applicant-accused.
24. Thus, the courts below were right in convicting
the applicant of the charges alleged on the point of
sentence as well, the submissions of both sides have been
heard at length. The plea based on Section 360 of Cr.P.C.
and Probation of Offenders Act is negatived. The same has
been negatived considering the fact that five persons died
in the accident and the passengers included a newly
married couple. Therefore, the benefit was rightly not
extended.
25. The applicant has been convicted for the offences
punishable u/s.304(A), 279, 338 of I.P.C. r/w. relevant
provisions of the old Motor Vehicle Act and even the
sentence awarded has been directed to run concurrently.
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26. However, the submission of Ms.Kaushik is that the
applicant has been enlarged on bail by this court while
admitting this application. The application was admitted
in the year 1998. The applicant is poor and today his
financial condition is not sound. In such circumstances
and considering that the other person has absconded after
the accident, a lenient view may be taken by this court.
27. Taking an overall view of the matter, I am of the
opinion that interest of justice would be served by
reducing the sentence of one year to three months. The
same is awarded by the trial court and the First Appellate
Court for the offence punishable u/s.304(A) of I.P.C. The
sentence imposed for the offences punishable u/s.279 & 338
so also under old Motor Vehicle Act is not required to be
altered so also the fine. Thus, except for reducing the
sentence to three months, the order of conviction and
sentence imposed by the courts below is maintained. It is
directed that the sentence as awarded by this court would
run concurrently.
28. The applicant is enlarged on bail. He shall
surrender to custody forthwith and undergo the sentence
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awarded. The bail bond stands cancelled.
29. Revision Application is dismissed, save and except
this modification. Rule discharged.
(S.C.Dharmadhikari, J) (S.C.Dharmadhikari, J) (S.C.Dharmadhikari, J)
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2006:BHC-AS:24282
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE
CRIMINAL REVISION APPLICATION NO.167 OF 1998 CRIMINAL REVISION APPLICATION NO.167 OF 1998 CRIMINAL REVISION APPLICATION NO.167 OF 1998
Shri.Mohammed Sannaulla Gausmuddin .. Applicant
Amir Sab (Orig.Accused)
V/s.
State of Maharashtra .. Respondent.
(At the instance of Nigdi (Orig.complainant)
Police Station, Pune)
Smt.Sharmila Kaushik with Shri.Prakash Naik for the
applicant.
Shri.Rajesh More, A.P.P. for State.
CORAM : S.C.DHARMADHIKARI, J. CORAM : S.C.DHARMADHIKARI, J. CORAM : S.C.DHARMADHIKARI, J.
DATE : 22ND DECEMBER,2006. DATE : 22ND DECEMBER,2006. DATE : 22ND DECEMBER,2006.
ORAL JUDGEMENT : - ORAL JUDGEMENT : - ORAL JUDGEMENT : -
1. This is one more case of rash and negligent
driving of a truck/lorry on a busy road, namely,
Bombay-Pune Highway. The accident in this case resulted
in death of 5 (five) persons travelling in a small car
(Maruti-800). This car was crushed by the truck/lorry
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well passed midnight. The dead include a newly married
couple. Such incidents are increasing day by day.
Although this accident is of 1998, the situation has far
from improved. The number of licences issued to drive
vehicles, the brand of vehicles and latest models on the
road increasing so also the modern roads would see more
and more accidents on Highways and loss of precious human
lives. The warning issued by the Hon’ble Supreme Court is
futile in this era of speed and modernisation.
2. The applicant is original accused in R.C.C.No.4 of
1992 which was on the file of the 2nd Joint J.M.F.C.,
Pimpri, Pune. The applicant was accused of having
committed offences punishable u/s.279, 304(A), 338 & 427
of I.P.C. so also Sections 78, 112 & 116 of M.V.Act.
3. Upon trial, the applicant has been convicted by
the J.M.F.C., Pimpri, Pune on 24th June 1994 for the above
offences and has been sentenced to suffer simple
imprisonment for three months and fine of Rs.500/-. In
default to suffer simple imprisonment for one month. The
applicant has been convicted and sentenced for all
offences, save and except the one punishable u/s.427 of
I.P.C. The order of conviction and sentence reads thus :
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-
1. Accused Mohammad Sannaulla Gausmuddin Amir
Sab is hereby convicted for the offences
punishable under sect.304(A), 279, 338 of I.P.C.
r/w. 78/112/116 of M.V.Act (old) and he is
sentenced to suffer S.I. for 3 months and to pay
fine of Rs.500/- id/to suffer S.I. for one month
for Sec.279 of IPC he is further sentence S.I.
for 3 months and to pay fine of Rs.500/- i/d
suffer S.I. for month for the offence punishable
u/sec.338 of I.P.C. He is further sentenced to
suffer S.I. for one year and to pay fine of
Rs.500/- i/d to suffer S.I. for one months for
the offence punishable under sec.304(A) of Indian
Penal Code. He is further sentenced to pay fine
of Rs.300/- for the offence punishable under
sec.78/112/116 of motor vehicle act i/d. to
suffer S.I. for one month.
2. Accused is acquitted of the offence
punishable under sec.427 of I.P.C.
3. Accused has to under go imprisonment for
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all the sections concurrently.
4. His bail bond stands cancelled.
4. The applicant being aggrieved and dissatisfied by
this judgement and order, preferred Criminal Appeal
bearing No.161 of 1994 in the Court of Additional Sessions
Judge, Pune. The learned Additional Sessions Judge by his
judgement and order dated 10th July, 1998 dismissed the
appeal of the applicant. He maintained the conviction and
sentence. That is how the applicant is in revisional
jurisdiction before this court.
5. Ms.Kaushik appearing for the applicant-accused
submits that the courts below being committed an error
apparent on the face of the record while holding the
applicant guilty and pronouncing the sentence against him.
She submits that the incident is of 4th May, 1991. The
whole incident is of a collusion between a truck and a
Maruti vehicle. The truck was coming from Pune towards
Mumbai on the old Bombay-Pune road. The Maruti vehicle
was proceeding towards Pune. The prosecution story is
that the vehicle/truck was being driven at a very high
speed and rashly. Suddenly it came on its wrong side,
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namely, on the right side and hit the Maruti vehicle. The
accident was of such nature that the vehicle/Maruti came
under the truck and was crushed completely. About five
persons have died in the accident. The 6th person,
original complainant, namely prosecution witness Ashok
Agarwal was also travelling in the vehicle. He was
seriously injured. She submits that there were two
drivers, who were driving the truck at the relevant time.
The applicant was in fact sleeping when the vehicle was
being driven by the other driver. The applicant got up
with the sudden jerk when he heard some screeching sounds.
She submits that there were no eye witnesses to the
accident. It is a case of circumstantial evidence. The
applicant was admittedly not at the driving seat. There
are no independent witnesses. She submits that there are
material contradictions in the version of the prosecution
witnesses. These contradictions go to the root of the
matter. The contradictions in their version, if seen in
the backdrop of the site panchnama, would indicate that
there is no support to the prosecution story. Similarly,
the testimony of the injured witness is also not reliable
and trustworthy. She submits that the truck has not
crossed over to the right side. There was no divider. On
the other hand, it is clear that if the truck had dented
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on its left portion so also the glasspane of the window on
the left side having been broken, the entire version, that
the truck came on the wrong side i.e. right side of the
road, is false and totally unbelievable.
6. The material on record according to her would
reveal that it is the Maruti vehicle which was driven at a
very high speed and as there was a slope and it being
uncontrollable came on the wrong side of the road and that
is how was crushed allegedly. However, the same is not
possible considering the fact that the left side bumper of
the truck has been dented. In such circumstances, the
learned J.M.F.C. and the Additional District Judge were
in complete error in convicting the applicant. They
omitted to make any reference to these contradictions and
discrepancies. Once they have so omitted, their orders
can safely be termed as perverse. They are required to be
interfered with in revisional jurisdiction. In such
circumstances, this court must interfere and set aside the
same. Moreover, when this revision application has been
admitted on 23rd July, 1998 and the applicant has been
enlarged on bail for all this period, this court should
take an appropriate view of the matter.
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7. On the other hand, the learned A.P.P. supported
the orders passed by the courts below. He submitted that
the prosecution has proved that the truck bearing
No.CRT-8949 dashed against the Maruti vehicle by coming on
the wrong side of the road. There are six witnesses, who
have been examined. That there was a divider on the road
is a fact spoken by all the witnesses. He submits that
some minor contradictions in the prosecution version would
not be fatal to the case. In such circumstances, and when
revisional court cannot reappraise and reappreciate the
materials, this court should not interfere with the
concurrent orders of conviction and sentence. In other
words, he submits that the revision application be
dismissed.
8. With the assistance of the learned advocates
appearing for both sides, I have perused this revision
application and the annexures thereto. The courts below
have proceeded on the footing that on 5th May, 1991 on
Bombay-Pune road, the accident has occurred. The vehicles
involved are a truck bearing No.CRT-8949 and Maruti car
bearing No.MVL-529. Deaths have occurred in the Accident.
There does not appear to be any serious dispute with
regard to the place where the accident took place.
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9. Witness No.1 is Uttam Namdev Sandbhor, a Police
Constable attached to Nigdi police station at the relevant
time. He has deposed that he heard big noise at about
2.45 a.m. at the police chowky. He and his other
colleague Bakshraj rushed to the spot. The spot is
Bombay-Pune road. The truck was going from Pune towards
Bombay whereas the Maruti vehicle was coming from Bombay
towards Pune. The truck had crushed the Maruti vehicle.
His deposition is that the truck came on the wrong side of
the road. Four persons died on the spot and two were
injured. It is his version that the driver of the said
vehicle appeared before the police station under fear. He
gave his name as Mohammad Amir Sab. According to him, the
accident occurred because the truck was driven on the
wrong side of the road. The version of P.W.1 has not been
shaken in the cross examination. Save and except the
suggestion put to him that there were two drivers in the
truck and that the person who is before the court is not
one who was driving the truck, there is neither any
admission nor any omission or contradiction. The further
suggestion is that the applicant-accused was sleeping
behind the driver when the accident occurred and one Gopal
Kisanappa was driving the truck. Thus, beyond raising an
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issue of identity of the driver, there does not appear to
be any cross examination of this witness.
10. The other witness is Badhsha Abaasali Bakshraj.
He is also a police constable attached to Nigdi police
station. His version is that the truck driver was
available on his driving seat and he sent him to the
police station. It is his version that he informed P.S.I.
Shri.Jhagade about the accident. His version is that the
driver lost control over the truck and the truck went on
wrong direction and dashed against the Maruti car which
was coming from opposite direction. However, he also
named the driver as one Mohammad Amir Sab as driving the
truck.
11. In his cross examination, he was asked questions
with regard to the spot where the accident took place.
There are some minor variations with regard to the
accident place, whether it is on the southern or on the
northern side. However, he has deposed that when he
reached the accident spot, the accused-applicant was
available in the driving seat. The constable told him to
come to the police station and inform about the accident.
His further cross examination is with regard to the
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injuries and the injured persons being shifted to the
hospital. A suggestion is given as to who accompanied him
to the hospital. Once again, he is questioned with regard
to the identity of the driver. A suggestion is given that
the person driving the vehicle ran away whereas the
accused-applicant being sleeping in the truck at the
relevant time, was caught. Thereafter suggestions are
given with regard to the negligence of the vehicle
drivers. It was suggested that the Maruti vehicle came at
a high speed and on account of negligence of its driver,
the accident occurred, which suggestion is also denied by
him.
12. P.W.3 is one Bhanudas Mahadev Sasane, who is a
Panch witness. He has identified the accident spot. He
also deposed that the Maruti car was totally damaged. The
right side of front portion of truck was pressed and there
was white colour on the bumper portion.
13. His version is also not shaken in the cross
examination, save and except suggesting that it was too
early in the morning and it is not possible that the Panch
witness would be available for carrying out panchanama and
identifying the spot at such an hour where the accident
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occurred. He was also questioned as to when he was told
to come and act as a Panch witness but that, to my mind,
does not affect the testimony adversely.
14. The other person, who has been examined as a
witness is one Ashok Banaridas Agarwal. He was travelling
in the Maruti vehicle. He has witnessed the accident. He
was himself injured and carried to Ruby hospital. He has
said that five other passengers in the Maruti vehicle have
expired. His deposition is that the truck came from
opposite direction, crossed the divider and dashed against
the vehicle namely Maruti car. The suggestion given to
him was as to how many persons can travel in the Maruti
vehicle. He was also asked as how many persons can sit in
the front portion of the car and it is not possible that
three persons can sit in the front and rest at the rear.
He was also questioned with regard to road divider. It
appears that the suggestion is that there was no divider
which divides the road. It is not necessary to go into
these aspects in the revisional jurisdiction for the first
time because it is nobody’s case that the road was not
open to traffic from both sides.
15. The testimony of the other witnesses is not so
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much material.
16. However, Ms. Kaushik has invited my attention to
the spot panchanama. She submits that the spot panchanama
which is placed on record in this case is not accompanied
by any sketch. The exact spot and location of the
accident remains unidentified. Moreover, it is her case
that this spot panchanama reveals that the truck has
suffered a dent on the left side. There was a tree which
damaged the left portion and broke the left window pane of
the truck. It is her submission that it is impossible
that the left side portion of the truck would be damaged
in the accident. Unless the vehicle comes from the
opposite direction and dashes against the truck towards
the left side, it would not suffer any damage or dents.
Further, the Panch witness states that the driver was
there in the vehicle. In fact, the driver had ran away is
her version.
17. It is not possible to accede to the submissions of
Ms.Kaushik that the accident occurred because the Maruti
vehicle was being driven at a high speed and came on the
wrong side of the road. That is not the case put to any
witnesses during the trial. The accused has not examined
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anybody in his defence. In such circumstances, it is not
appropriate to entertain such contention in this court for
the first time.
18. The courts below have after taking into
consideration all materials negatived the contention of
the applicant that he was not driving the vehicle. The
courts below have rightly observed that if such is the
nature of the defence, then the burden shifts to the
applicant and he has to show that he was not driving the
vehicle.
19. The entire emphasis before the courts below is on
the identity of the person driving the vehicle and the
applicant contended that he was not driving the same.
20. The courts below have observed that there is no
dispute about the accident and the spot where it took
place so also the road. Considering that the car was
crushed under the truck and the truck dragged it, so also
the truck’s right portion being bent, it is clear that the
version of P.W.1 is corroborated by other witnesses
including spot panchanama. The accident took place within
the vicinity of a police chowky.
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21. Further, a person travelling in the vehicle,
namely, Ashok Banaridas Agarwal has also deposed and his
testimony is found to be trustworthy and reliable.
22. It is in such circumstances that the courts below
have concurrently observed that the accident has occurred
on account of rash and negligent driving of the truck
driver and also his identity is not in dispute. Once the
vehicles involved in the accident are clearly identified
along with the place at the time of its occurrance, then,
it is futile to suggest that some other person was driving
the vehicle. It is nobody’s case that the applicant was
not in the truck at all. The case is he was not at the
driver’s seat. This has to be proved by the applicant but
he did not lead any evidence. All three witnesses
examined by the prosecution have said that the driver came
to the police station and gave his name as Mohammad Amir
Sab. Thus, there is no substance in this contention of
Ms.Kaushik. Merely submitting that the applicant was not
the one who was driving the vehicle would not be enough
for the driver-applicant to escape his responsibility and
liablility. Something more was necessary to be placed on
record which is not done and that is how the applicant is
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held guilty of the offence alleged.
23. The lower Appellate Court has properly analysed
the evidence, scrutinised it and appraised it in
accordance with the well settled principles in law. It
has fully performed its duty as a first Appellate Court.
Its observations and findings at para 15 to 18 would show
that the accident occurred on account of rash and
negligent driving by the applicant-accused.
24. Thus, the courts below were right in convicting
the applicant of the charges alleged on the point of
sentence as well, the submissions of both sides have been
heard at length. The plea based on Section 360 of Cr.P.C.
and Probation of Offenders Act is negatived. The same has
been negatived considering the fact that five persons died
in the accident and the passengers included a newly
married couple. Therefore, the benefit was rightly not
extended.
25. The applicant has been convicted for the offences
punishable u/s.304(A), 279, 338 of I.P.C. r/w. relevant
provisions of the old Motor Vehicle Act and even the
sentence awarded has been directed to run concurrently.
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26. However, the submission of Ms.Kaushik is that the
applicant has been enlarged on bail by this court while
admitting this application. The application was admitted
in the year 1998. The applicant is poor and today his
financial condition is not sound. In such circumstances
and considering that the other person has absconded after
the accident, a lenient view may be taken by this court.
27. Taking an overall view of the matter, I am of the
opinion that interest of justice would be served by
reducing the sentence of one year to three months. The
same is awarded by the trial court and the First Appellate
Court for the offence punishable u/s.304(A) of I.P.C. The
sentence imposed for the offences punishable u/s.279 & 338
so also under old Motor Vehicle Act is not required to be
altered so also the fine. Thus, except for reducing the
sentence to three months, the order of conviction and
sentence imposed by the courts below is maintained. It is
directed that the sentence as awarded by this court would
run concurrently.
28. The applicant is enlarged on bail. He shall
surrender to custody forthwith and undergo the sentence
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awarded. The bail bond stands cancelled.
29. Revision Application is dismissed, save and except
this modification. Rule discharged.
(S.C.Dharmadhikari, J) (S.C.Dharmadhikari, J) (S.C.Dharmadhikari, J)
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