Yasin Sheku Nigewan vs The State Of Maharashtra on 15 July, 2009

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                       
            CRIMINAL APPELLATE JURISDICTION
             CRIMINAL REVISION APPLICATION NO.75 OF 1999




                                               
     Yasin Sheku Nigewan                             ..    Applicant

                  vs

     The State of Maharashtra                        ..    Respondent




                                              
     Mr.Nitin Jamdar for Applicant
     Mr.H.J.Dedhia APP for State-Respondent




                                
                              CORAM: A.S.OKA, J



     JUDGMENT

ig DATED : 15th July, 2009

1. The submissions of the learned counsel appearing

for the applicant and the APP for the State were heard on

the earlier date. The applicant was prosecuted at the

instance of the State for offences under section 304-A of

the Indian penal Code (Hereinafter referred to as the

Penal Code) and section 134 of the Motor Vehicles Act,

1988 (hereinafter referred to as the said Act) which is

punishable under section 177 of the said Act. The

applicant was convicted by the learned Chief Judicial

Magistrate, Solapur. The applicant was sentenced to

suffer rigorous imprisonment for six months and to pay

fine of Rs.100/- for the offence under section 304-A of

the Penal Code. He was sentenced to pay fine of Rs.100/-

for the offence under the said Act of 1988 and in default

of payment of fine, he was directed to undergo simple

imprisonment for six months. The order of conviction has

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been confirmed in an appeal preferred by the applicant.

The Revision application was admitted by this Court and

interim relief in terms of prayer clause (d) was granted

thereby suspending the operation of the sentence.

2. The learned counsel appearing for the applicant has

taken me through the notes of evidence and other relevant

documents on record of the trial Court. He invited my

attention to the evidence of the prosecution witnesses

and submitted that taking the evidence as it is, rash and

negligent driving on the part of the applicant was not at

all established. He submitted that the Courts below have

failed to consider the real controversy namely whether

the applicant was guilty of rash or negligent driving of

the truck. He submitted that the findings recorded by

the Courts below are contrary to the evidence on record.

He submitted that the Sessions Court has not really

dealt with the issue of rashness or negligence. He

submitted that the impugned orders are perverse. The

learned APP submitted that in the limited revisional

jurisdiction, this Court cannot re-appreciate the

evidence and there is no scope to interfere with the

concurrent findings of fact recorded by the Courts below.

3. I have carefully considered the submissions. I

have perused the notes of evidence. The case of

prosecution in brief needs to be adverted to before

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considering the submissions made by learned counsel

appearing for the parties on merits.

The allegation against the applicant is that on

28th May, 1995 at about 10.30 p.m, he was driving his

truck bearing No.MH 13-B 4466. It is alleged that when

the truck was near Multani bakery on Solapur-Hotgi Road,

the applicant was driving the truck in a rash and

negligent manner thereby endangering the human life. It

is alleged that he caused the death of a 5 year child by

the name Chhaya who was standing by the side of the road.

Further allegation is that after committing the offence,

the applicant failed to give information of the incident

to the nearest police station as soon as possible and in

any event within 24 hours from the time of the incident.

4. It will be necessary to refer to the evidence of

the prosecution witnesses. The main witness examined by

the prosecution is PW 2 Chandrakant Potdar who is the

father of the victim girl. He stated in his evidence

that his brother Rajaram had been to his house on that

day. He accompanied his brother Rajaram along with his

daughter Chhaya to Multani bakery bus stop. He stated

that he was standing by the side of the bus stop. At that

time, a truck carrying sand came in a very fast speed.

He stated that while his daughter was standing, the truck

gave a dash to his daughter from the front side. His

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daughter fell down and the truck ran over her person. He

stated that the truck proceeded ahead and stopped at some

distance. He stated that his daughter Chhaya died on the

spot. He stated that after the truck halted, the driver

alighted from the truck and ran away. In cross

examination he admitted that the said road has a heavy

traffic of vehicles. He stated that a bus was standing at

the bus stop. He further stated that after the city bus

left, his daughter was about to cross the road. He,

however, denied the correctness of the suggestion that

his daughter all of a sudden came on the road without

paying attention to the vehicles on the road. Thus, in

examination-in-chief he stated that at the time of impact

his daughter was standing along with him near the bus

stop. In the cross-examination, he came out with the case

that after the bus standing at the bus stop left, his

daughter was about to cross the road the accident

occured. He has not come out with the case that he was

also attempting or intending to cross the road with his

daughter.

5. The next prosecution witness is P.W.3 Appasahab

Sidram Chougule. He stated that he was having his house

near the Multani bakery bus stop. He stated that he was

proceeding on his moped from his house towards his land.

He stated that the truck was going towards Hotgi side and

the said truck was on his front. He stated that there was

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no other vehicle between his truck and his moped. He

stated that he was behind the truck up to the bus stop.

He stated that after crossing the bus stop, the truck

stopped and there was a crowd. He, thereafter, noticed

that the truck had run over a child. He stated that the

truck halted after some distance and the driver ran away.

In his cross-examination, he stated that there was always

traffic and crowd of people on the road. He stated that

he was not aware as to what was the speed of the truck.

He admitted that he had not personally seen the impact or

the actual incident.

6. The panch witnesses namely PW 4 and PW 5 were

declared hostile. The prosecution examined P.W.6 Namdeo

Vithoba Aanbhule Assistant Inspector of Police. He is

the person who had lodged the FIR and had drawn the

panchanama of the scene of offence as well as the inquest

panchanama. In his cross-examination, he admitted that

the deceased girl came below the truck while crossing the

road and that the deceased was crossing the road alone.

This Police officer had lodged the FIR in which he

categorically stated that the incident occured when the

deceased was crossing the road and that the deceased was

crossing the road alone. As pointed out earlier, the

father of the deceased in his cross examination came out

with a case that after the bus which had stopped at the

bus stop left the bus stop, the child was about to cross

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the road. It must be stated here that the initial case

made out by the father of the child was that he along

with the child were standing at the bus stop. The said

version has undergone a change. In the cross-examination,

he stated that after the bus which had stopped at the bus

stop left, the child was about to cross the road. The

concerned police officer went further and stated that the

incident occured when the child was alone crossing the

road. It will be also be necessary to refer to the

Cr.P.C.

statement of the applicant recorded under section 313 of

What was put to the applicant was that when PW 2

Chandrakant Potdar was standing by the side of the bus

stop his daughter was also standing along with him and

at that time the truck driven by the applicant came in a

fast speed and gave a dash to the child.

7. At this stage, it will be necessary to refer to the

scene of offence panchanama which is on record. The said

panchanama records that the width of the road at the spot

is 24 feet. The panchanama records that there is a

kaccha road having width of 5 ft on either side. It is

further stated that on the southern side of the spot of

the incident, the bus stop is at distance of 25 feet.

8. Thus, apart from the evidence of PW. 1 who has

stated that the incident occured when the deceased was

alone crossing the road, the scene of offence panchanama

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completely negatives the case of the prosecution that the

truck gave a dash to the deceased child while she was

standing along with her father by the side of the bus

stop. The allegation of negligence made by father of

the child is that though the child was standing near the

bus stop, the truck came in a rash and negligent manner

and ran over the child. There is evidence on record to

show that the road is always crowded and there is heavy

traffic on the road. It will be necessary at this stage

to refer to the finding recorded by the Sessions Judge on

this aspect. Para 14 of the decision of the Sessions

Court reads thus :

In this context, the death of the deceased

Chhaya is admitted by the accused before the
trial court and also admitted in the panchanama

of the scene of offence and seizure of the
truck. In such circumstances, if we read the
panchanama of the scene of offence and
panchanama of attachment of the truck, it will
be clear that deceased Chhaya was found lying on

the ground because she came into contact from
the front side of the truck and her body was ran
over below the tyre of the truck. In other
words, the front tyre of the truck actually
crossed the body of deceased Chhaya and this
fact was witnessed by PW 3 Appasaheb Chougule
and PW 2 Chandrakant Potdar. There is no

suggestion given to the above named witness of
prosecution that accused was not driving the
truck at the time of the alleged incident. On
the contrary, the defence taken by the accused
in the trial court would go to show that girl
was suddenly crossing the road without taking
the note of vehicle of the accused which was on
the road. Even such type of defence is
ultimately found false by the trial court and
learned Judge of the trial court has pointed out
that accused was driving the said truck at the
relevant time and it is also clear from the
record of the case of the prosecution that

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deceased Chhaya standing near by city bus stop

and the said truck of the accused while passing
the city bus stop gave dash to the deceased
Chhaya by driving the said truck in a rash and

negligent manner and in this way the accused
himself committed the above said offence.
Therefore, the defence taken by the accused
appeared to be totally wrong and false.

9. The said finding is obviously contrary to what PW 1

and PW 2 admitted in their cross examination. The

Sessions court has proceeded on an erroneous assumption

that the incident occured when the unfortunate daughter

was standing by the side of the bus stop. The Courts have

proceeded on the assumption that there is negligence and

rashness on the part of the applicant as he has ran away

after the incident. The entire basis of the findings

recorded by the Courts below is contrary to the oral and

documentary evidence on record. In fact, this is a case

where the father of the child was standing at the bus

stop and after the bus standing at the bus stop left, the

five year child suddenly attempted to cross the road. As

stated earlier, admittedly the road has a very heavy

traffic. The scene of offence panchnama shows that there

were brake marks on the road which establish that the

applicant must have applied brakes. Taking the evidence

of the prosecution witnesses as it is , negligence or

rashness on the part of the applicant has not been

established.

10. Therefore, it is apparent that the findings

recorded by the Courts below are completely contrary to

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the oral and documentary evidence on record as far as the

offence under section 304-A is concerned.

11. In so far as breach of section 134 of said Act of

1988 is concerned, the prosecution witnesses are

consistent. The applicant stopped the truck at a

distance and thereafter ran away and did not report the

incident to police. Therefore, though conviction under

section 304-A of the penal code deserves to be set aside,

the conviction for other offence under the said Act will

have to be upheld. However, it must be noted that the

applicant has already paid a fine of Rs.100/- which is

the only sentence for the offence punishable under

section 177 of the said Act of 1988.

12. Hence, Revision Application must succeed in part

and I pass the following order :

1. The impugned order of conviction of the
applicant under section 304-A of IPC is quashed and
set aside andthe applicant is acquitted of the
offence under section 304-A IPC.

2. However, his conviction and sentence for other
the offence is confirmed.

3. The bail bonds of the stands cancelled.

A.S.Oka, J

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