Research › Search › Judgment

Bombay High Court · body

2006 DIGILAW 462 (BOM)

SUDHAKAR PUNA WAGH v. STATE OF MAHARASHTRA

2006-03-27

S.P.KUKDAY

body2006
( 1 ) THE petitioner has impugned the order of conviction and sentence dated 27th August, 1990 passed on him by the learned judicial Magistrate, First Class, Chopda, convicting the petitioner for commission of the offences and imposing sentence of imprisonment as detailed hereinafter: under section 304 (a) - R. I. for six months and a fine of Rs. 200, in default R. I. for one month; (b) under section 337, Indian Penal Code - RI for three months and fine of Rs. 200 in default R. I. for 15 days; (c) under sections 3 and 89 read with 112 of the Motor Vehicles Act - fine of Rs. 50/- on each count, in default SI for one week; (d) under section 123 of the Motor Vehicles Act - fine of Rs. 500/- in default, SI for 15 days; no separate sentences were awarded for offence punishable under section 279 of Indian Penal Code and section 116 of the Motor Vehicles Act; the sentences were to run concurrently; and the order passed by the learned Addl. Sessions Judge, Amalner, on 12th February, 1998 confirming the order of conviction and sentence passed by the trial Judge. ( 2 ) BRIEFLY stated the facts are that, during the Durga festival, on 10-10-1989, tractor bearing Registration No. MXQ 4474 and its trolley were utilized for the purpose of immersion of idol of Goddess Durga. While returning after immersion ceremony, petitioner allowed 30-40 persons to board the trolley, though the trolley was not to be used for this purpose. He drove the tractor rashly at a high speed on kuccha road. At the time of taking a turn the trolly turned turtle. As a result, one Sudhakar Dattatraya Garud died on the spot; complainant ashok Nikumbh, witness Hiraman Baburao and others who were in the trolley suffered injuries. Complainant (PW1) Ashok Nikumbh lodged report of the incident. On the basis of this report, offence came to be registered against petitioner under sections 279 and 373 of the Indian Penal Code. After investigation, charge-sheet was filed. After conclusion of the trial, petitioner came to be convicted and sentenced, as stated earlier. ( 3 ) THE appeal filed at the instance of the petitioner, being Criminal Appeal no. 17/1990 came to be dismissed, confirming order of conviction and sentence passed by the trial Judge. The petitioner has, therefore, invoked revisional jurisdiction of this Court. After conclusion of the trial, petitioner came to be convicted and sentenced, as stated earlier. ( 3 ) THE appeal filed at the instance of the petitioner, being Criminal Appeal no. 17/1990 came to be dismissed, confirming order of conviction and sentence passed by the trial Judge. The petitioner has, therefore, invoked revisional jurisdiction of this Court. ( 4 ) SHRI D. N. Janakwar, holding for Shri B. R. Warma, learned counsel for petitioner has raised only one point. According to him, Courts below have committed an error in coming to the conclusion that petitioner was rash and negligent while driving the vehicle, only on the basis that the tractor was being driven at a high speed. According to learned counsel, speed is not the only criterion. For this purpose reliance is placed on the ruling of this Court reported in 1970 Mh. L. J. 763 = AIR 1971 Bombay 164 in the matter of Tukaram Sitaram gore vs. State. Learned counsel contends that the finding recorded by the Courts below is, thus, perverse and deserve to be set aside. ( 5 ) THE contention that speed is not the only criteria for judging whether the act is rash or negligent deserves to be accepted. It is settled principle that other factors, such as, condition of the road, and other attending circumstances have to be considered to determine whether the act is negligent or rash. Similar view is taken by this Court in the matter of Tukaram Sitaram Gore vs. State (supra ). ( 6 ) TURNING to the facts of the present case, it can be seen that the finding of the lower Court is not based only on the criteria of speed but is based on the appreciation of evidence. The evidence of the injured, namely, PW 1 - Ashok nikumbh; PW 3 Atmaram Dashrath shows that all the persons who were in the trolley were entreating the petitioner to slow down the vehicle. The requests had, however, fallen on deaf ears, and at the time of taking turn the trolley turned turtle. The evidence therefore, establish that the speed was such that the trolley was not stable and there was danger of the trolley being overturned. Therefore, all the occupants were requesting the petitioner to slow down but he did not pay any heed to the requests. The evidence therefore, establish that the speed was such that the trolley was not stable and there was danger of the trolley being overturned. Therefore, all the occupants were requesting the petitioner to slow down but he did not pay any heed to the requests. The road on which the tractor was driven was 24 ft. kuccha road. The evidence shows that the act of accused in driving the vehicle in such a manner is a wanton act throwing all the caution to the wind, which has resulted in causing death of Sudhakar and injuries to 30 to 35 person, who were in the trolley. ( 7 ) LEARNED trial Judge as well as the Appellate Judge have recorded a finding that the petitioner is guilty of rashness and negligence. This finding does not appear to be correct. A person can be said to be either rash or negligent. Both cannot co-exist. The learned Appellate Judge has made a reference to the concept of rashness as well as negligence, however, the principles are not properly applied. Rashness is doing an act having knowledge of the consequences which may occur but persisting on the assumption that sufficient precautions are taken to avert the catastrophe. Negligence is a wanton act done without taking proper care and precaution which a prudent man is expected to have taken. At this juncture, reference can be made to the ruling of the Apex Court reported in (1969) 71 BLR page 634 in the matter of Bhalchandra Pathe vs. State of maharashtra, While dealing with the concepts of "rashness" and "negligence", it is observed by Their Lordships of the Apex Court on Page 637 of the report that:". . . . . . . . . Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Again, as explained in Nldamartl Nagabhushanam (1972) 7 Madras High Court Reports, 119, a culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and if he had he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection. " ( 8 ) TURNING to the merits of the present case, it can be seen that the accused had knowledge that the trolley would turn turtle. In spite of that, he continued to drive the vehicle with high speed, ignoring the requests of the occupants. It is further pertinent to bear in mind that petitioner did not hold a valid licence and, as such, was not expected to drive the vehicle at all. These facts show that the petitioner is guilty of rashness. He is responsible for causing death of Sudhakar and injuries to other occupants of the trolley. In view of these facts, contention of learned counsel that the conviction is based only on the ground that the vehicle was driven at high speed, cannot be sustained. In the light of the above discussion, no case for interference is made out. Revision is, therefore, dismissed. Rule discharged. Petitioner shall surrender to bail before the lower Court, to serve the remaining sentence, on or before 10th April, 2006. Revision dismissed.