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2007 DIGILAW 1243 (BOM)

Vijay s/o. Namdeorao Kute v. State of Maharashtra

2007-09-03

S.R.DONGAONKAR

body2007
JUDGMENT :- Heard Shri. Anil Mardikar, Advocate for the applicant and Shri. C. N. Adgokar, A.P.P. for State - non applicant. 2. By this revision application under section 401 read with section 397 of Cr.P.C., the applicant challenges the judgment of the Adhoc Additional Sessions Judge, Washim in Criminal Appeal No.29/2001 by which he maintained the judgment and order of conviction and sentence passed by the Judicial Magistrate, First Class, Karanja in Summary Criminal Case No. 1035/1998, by which the revision applicant was held guilty of the offence punishable under section 304-A of the Indian Penal Code and was sentenced to suffer R.1. for six months and to pay fine of Rs.500/-, in default to suffer S.1. for 2 months. 3. The facts leading to the prosecution of the revision applicant were that, on 26.8.1996. at about 10.40 a.m., at village Kamargaon, on the road near S.T. Stand, near Public Urinal, he was taking his Tractor No. MTR-457 in the reverse direction. At that time deceased Laxmibai wd/o. Rodaji Thakre aged 85 years came out of Public Urinal and his tractor while taking the same in reverse gave dash to her. Because of that dash she fell down and came under the rear wheel of the trolley of the tractor. She suffered bleeding injuries and succumbed to those injuries in the hospital. Her autopsy was performed. Head constable Sahadeo Prabhe of Outpost Kamargaon sent report to P.S.O. Dhanaj which was registered as Crime No.81/1996 for the offence under section 304-A of the Indian Penal Code. After due investigation, the revision applicant was charge-sheeted. 3•A. During the trial held by the learned Judicial Magistrate First Class, two witnesses were examined. P.W.1 Awadhoot Panzade was the witness to the spot panchanama. He however, did not support the prosecution case. P.W.2 Digambar Khanduji Gangatre was the eye-witness to the incident. He supported the prosecution case. Learned Trial Judge found that though the remaining witnesses including Investigating Officer were not examined. it was proved on the strength of the evidence of the P.W.2 Digambar that the revision applicant did not exercise the care that was required in taking the tractor in reverse and while doing so negligently he dashed said Laxmibai which caused her death. Learned Trial Judge found that though the remaining witnesses including Investigating Officer were not examined. it was proved on the strength of the evidence of the P.W.2 Digambar that the revision applicant did not exercise the care that was required in taking the tractor in reverse and while doing so negligently he dashed said Laxmibai which caused her death. It is also held by him that it was necessary for the revision applicant accused to take proper care by taking services of some person as he was taking the tractor trolley in reverse. He found that the defence of the revision applicant that the deceased had herself fell on the ground was incorrect, so also she had come suddenly out of public urinal, therefore, there was no opportunity for the revision applicant to notice her. It is held by him that as revision applicant did not exercise proper care in taking tractor in reverse, had committed breach of his positive duty. Merely because he had blown horn and deceased got frightened on seeing the tractor, it cannot be held that the revision applicant is not responsible for the death of the deceased. He therefore, found that Revision applicant was guilty 'of the offence u/s.304-A of the I.P.C. He further observed that the revision applicant is the first offender and he was taking lenient view of the matter, and so he awarded sentence of six months to him. This judgment of conviction and sentence was assailed by revision applicant in Criminal Appeal No.29/2001 before Additional Sessions Judge, Washim. Learned Additional Sessions Judge; after elaborate consideration of the submissions made by learned counsel for the revision applicant i.e. appellant therein, held that the judgment of the learned trial Judge was correct and therefore, he dismissed the appeal. These judgments are challenged in this revision. 4. Learned counsel for the revision applicant has submitted that the prosecution had examined only two witnesses. It did not examine the Investigating Officer or other witnesses. According to him, P.W.1 Awadhoot had not supported the prosecution, though he was witness to spot panchanama. This spot panchanama though wrongly marked as Exhibit 12, was not properly proved. He has taken me through the evidence of main eye-witness P.W.2 Digambar, [particularly cross-examination] to contend that the revision applicant was not at all negligent. According to him, P.W.1 Awadhoot had not supported the prosecution, though he was witness to spot panchanama. This spot panchanama though wrongly marked as Exhibit 12, was not properly proved. He has taken me through the evidence of main eye-witness P.W.2 Digambar, [particularly cross-examination] to contend that the revision applicant was not at all negligent. He has also submitted that the prosecution has failed to establish the guilt of the accused and the learned trial Judge and the appellate Judge had wrongly invoked the doctrine of res ipsa loquitur in this case inasmuch as it is not applicable to the criminal cases vide AIR 1979 SC 1848 [Syad Akbar Vs. State of Karnataka]. In the alternative he submitted that, if the revision applicant is held guilty; he should be awarded sentence of already undergone period as he had undergone the sentence of about 10 days, in view of the decision of this court reported in 2004 ALL MR (Cri) 136 [Bharat Pandharinath More Vs. State of Maharashtra]. 5. As against this, learned A.P.P. relying on AIR (37)1950 Allahabad 300 [C.N.112] (Tikaram Vs. Rex); AIR 1975 SC 1960 [Duli Chand Vs. Delhi Administration]; AIR 1979 SC 1327 [Baldevji Bhathiji Thakore Vs. The State of Gujarat] & AIR 1980 SC 84 [Rattan Singh Vs. State of Punjab], contended that the revision applicant is proved to have not taken reasonable and required care while taking the tractor in reverse and dashed Laxmibai, and she suffered death. According to him revision applicant was expected to take a necessary care particularly when he was handling the heavy vehicle like tractor trolley and taking the same in reverse. According to him, merely because he had blown horn or he was taking tractor in reverse in slow motion that fact by itself will not conclude that he was not negligent. As such, according to him, judgment of conviction and sentence of lower Court should not be disturbed, more so, because there are concurrent findings on the facts. As such he claimed dismissal of this revision application. 6. To find out as to whether the prosecution has established the guilt of the accused, it is necessary to closely examine the evidence of P.W.2 Digambar Gangatre who is alleged eye-witness to the incident. In his evidence he has stated that the revision applicant started taking tractor in reverse, at that time old woman came out from the urinal. 6. To find out as to whether the prosecution has established the guilt of the accused, it is necessary to closely examine the evidence of P.W.2 Digambar Gangatre who is alleged eye-witness to the incident. In his evidence he has stated that the revision applicant started taking tractor in reverse, at that time old woman came out from the urinal. And at that time, the trolley had dashed against the old lady. Due to dash the old woman fell on the ground and came under the rear wheel of the trolley. The old woman sustained injuries. She was admitted in the hospital, however, she expired. In cross-examination he stated that there is one tyre and puncture repairing shop near urinal. In further cross-examination he stated that he wanted to take that tractor to repairing shop near Urinal, in the reverse, so he had blown horn at that time. At that very moment said woman came suddenly. She was frightened, on seeing the tractor she fell down on the ground and suffered injuries. She was admitted in the hospital by the applicant. The tractor was in slow speed and the revision applicant had applied brakes and stopped vehicle on the spot. It therefore, clearly appears that his evidence establishes that the deceased had died due to injuries suffered because she came in the rear wheel of the trolley. This evidence does not lead to conclusion that she of herself fell down and suffered injuries, resulting in her death. 7. The authorities cited by the learned A.P.P. clearly show that even if the vehicle is in slow speed, the accused driver can 'be negligent vide Duli Chand's case referred above. It is also clear that in taking the tractor reverse, extra care was required to be taken. Learned appellate Judge has taken the correct view of the matter. It clearly seems that as the driver of the tractor was not in a position to look the situation exactly on the rear side of trolley, due care which he should have taken was considerably large. He should have taken the assistance of some other person. He has rightly found that mere blowing of horn was not sufficient. It is true that the spot panchanama is not proved. He should have taken the assistance of some other person. He has rightly found that mere blowing of horn was not sufficient. It is true that the spot panchanama is not proved. But it is not necessary to refer to it inasmuch as the revision applicant himself had admitted in his statement that, while he was taking the tractor in reverse, trolley of the tractor dashed against old woman. It is not the case of the defence that the old lady was herself negligent and she came below wheel of tractor. 8. Learned appellate Judge has also rightly held that non-examination of investigating officer is not fatal to the prosecution, particularly in this case where his presence was tried but the same could not be materialized. Further he has rightly pointed out that the evidence in FIR in such case was of formal nature and therefore, conviction could be rested on the evidence of an eye-witness, particularly P.W.2 Digambar. 9. In such circumstances, in view of the authorities cited by the learned A.P.P. it is difficult to say that the view taken by the learned trial Judge and the appellate Judge is incorrect, illegal and improper at law. 10. Merely because deceased was old lady, no negligence on her part can be attributed; without any supporting material on record. 11. Learned counsel for the revision applicant has contended that in view of AIR 1979 SC 1848 [Syad Akbar Vs. State of Karnataka] principle of res ipsa loquitur, is not applicable to the present case. In the case in hand it does appear that the tractor was being taken in reverse. Deceased had come in the rear wheel of the trolley of the vehicle. This is not a case, where the vehicle was proceeding ahead and the deceased had come in the rear wheel. It is also a fact that the deceased was taken to the hospital by the revision applicant as well as the said witness -Digambar and therefore, any inference that can be drawn on the strength of the evidence of P.W.2 Digambar can not be said to be an inference drawn only on the basis of "res ipsa loquitur". In these circumstances, therefore, concurrent findings of the trial Judge and the appellate Judge cannot be interfered with. 12. Question is regarding sentence. In these circumstances, therefore, concurrent findings of the trial Judge and the appellate Judge cannot be interfered with. 12. Question is regarding sentence. It would be seen that the punishment prescribed for the offence 304-A, I.P.C. is for 2 years, or fine, or both. Therefore, the crucial question would be whether the revision applicant can be accorded benefit of Probation of Offenders Act or whether he should be sentenced to a period already undergone or to the sentence imposed by the learned Trial Judge, confirmed in the appeal. 13. In this behalf observations of this court in 2004 ALL MR (Cri) 136 [Bharat Pandharinath More Vs. State of Maharashtra] need to be seen. It has been observed thus : "5. I have given thoughtful consideration to the submissions made by the learned counsel for the parties. The appellate court, as could be seen from the judgment, did consider the submission made on behalf of applicant as regards entitlement of benefit of Probation of Offenders Act to the applicant. In that, the Appellate Court has rightly taken into consideration the decision of the Apex Court in the case of Aitha Chander Rao Vs. State of A.P., 1981 SCC 637, in which the Apex Court has held that the offence u/s 304-A of I.P.C. comes within the purview of the provisions under the probation of Offenders Act. In that case, benefit of section 4 of the Probation of Offenders Act was given to the accused who was convicted for the offence u/s.304-A of I.P.C. But the Appellate Court distinguished the case before it on facts and therefore, came to the conclusion that having regard to the facts and circumstances of the case, benefit of Probation of Offenders Act cannot be given to the applicant, even though in cases arising out of the offence u/s. 304-A of I.P.C. benefit of Probation of Offenders Act could be given. In view of this, the request made by the learned counsel for the applicant for giving benefit of the Probation of Offenders Act to the applicant cannot be accepted." 14. In that case it was found that the appellate court had distinguished the case before it on' facts and therefore, this Court had come to the conclusion that having regards to the facts and circumstances of the case, benefit of Probation of Offenders Act cannot be given to the said applicant. In that case it was found that the appellate court had distinguished the case before it on' facts and therefore, this Court had come to the conclusion that having regards to the facts and circumstances of the case, benefit of Probation of Offenders Act cannot be given to the said applicant. In the present case, there are no such observations by the trial Court or lower appellate Court. The revision applicant appears to be first offender. He is not proved to be rash in driving. Immediately after the deceased had suffered injuries, he and P.W.2 Digambar had taken her to the hospital to save her life. Unfortunately she died. He has been facing trial since long. In such circumstances, it is difficult to hold that he would not be entitled to the benefit of Probation of Offenders Act, though it is not specifically prayed for. More so when no bad conduct is attributed to him during the pendency of proceedings or even prior to that. 15. In view of these circumstances of the case, provisions of Section 361 of Cr.P.C. are attracted. They read thus: "361. Special reasons to be recorded in certain cases - Where in any case the Court could have dealt with (a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or (b) a youthful offender under the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so." 16. Here, there are no grounds to refuse the benefit of Probation of Offenders Act to the revision applicant recorded by courts below. He deserves the same, in as much as he has taken deceased to the hospital immediately after the incident. As there is no case of rash driving, I find that the judgments of trial Judge and the appellate judge as regards sentence are incorrect, improper and unjust inasmuch as they have not considered the possibility of application of Probation of Offenders Act to the case of the revision applicant; for the award of benefit of the same. In fact, as observed above, there are no reasons recorded by them, as to why such benefit can not be given. In fact, as observed above, there are no reasons recorded by them, as to why such benefit can not be given. He had already been in jail for 8 to 10 days. As such while maintaining his conviction u/s.304-A of the I.P.C., Instead of sentencing him at once I deem it expedient to release revision applicant on probation of good conduct for three years on his executing necessary bonds of Rs.10,000/- with one surety, under section 4(1) of the Probation of Offenders Act. He is also ordered to pay a compensation of Rs.5,000/- to the heirs of deceased, if they claim by an application in trial Court, of course without prejudice to their right under Motor Vehicles Act, if any. Thus, the revision application is partly allowed in above terms. Application partly allowed.