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2008 DIGILAW 268 (BOM)

Digambar Baburao Ingavale v. State of Maharashtra

2008-02-18

D.G.KARNIK

body2008
JUDGMENT: 1. Heard. 2. This revision application is directed against the judgment and order dated 16th May 2000 of the IInd Additional Sessions Judge, Satara confirming the decision dated 25th February 1999 of the Judicial Magistrate, First Class, Satara convicting the revision petitioner for an offence punishable under section 279 read with 337 of the Indian Penal Code. By the impugned order, while confirming the order of conviction the learned Sessions Judge modified the sentence of 3 months’ simple imprisonment and fine of Rs.500/- to fine of Rs.1000/- only. 3. The revision petitioner is a bus driver employed by the Maharashtra State Road Transport (for short "the S.T."). On 22nd January 1998, the petitioner was driving a S.T. bus bearing registration No.MH-02-FA/1940 from Pune to Radhanagari. At about 7.15 p.m., the bus reached the accident spot near Kanher Dam in village Varye. The S.T. bus overtook a truck which was ahead of it and then collided with an auto rickshaw coming from the opposite side injuring the driver of the auto rickshaw. Spot panchanama (Exhibit-12) was prepared and the offence was registered against the petitioner of rash and negligent driving. Prosecution examined 7 witnesses including the rickshaw driver who was injured, and an eye witness. The petitioner did not examine himself as a witness nor did he examine any other witness. After considering the evidence adduced, the learned Judicial Magistrate came to the conclusion that the petitioner was driving the S.T. bus rashly and negligently and by such rash and negligent driving, he gave a dash to the rickshaw coming from the opposite direction injuring the rickshaw driver. The trial court accordingly convicted the petitioner for an offence punishable under sections 279 and 337 of the I.P.C. and sentenced him to suffer simple imprisonment for 3 months and to pay a fine of Rs.500/- and in default to suffer simple imprisonment for one month. Aggrieved by the judgment and order of the learned Magistrate, the petitioner filed an appeal before the Sessions Court, Satara. The learned Additional Sessions Judge by his order dated 16th May 2000 confirmed the order of conviction of the petitioner. However, he modified the sentence by setting aside the order of simple imprisonment and sentenced the petitioner to pay a fine of Rs.1000/-. That order is impugned in this revision. 4. The learned Additional Sessions Judge by his order dated 16th May 2000 confirmed the order of conviction of the petitioner. However, he modified the sentence by setting aside the order of simple imprisonment and sentenced the petitioner to pay a fine of Rs.1000/-. That order is impugned in this revision. 4. Learned counsel for the petitioner submitted that the appreciation of evidence by the trial court has been erroneous and the trial court ought not to have believed the witnesses. All the witnesses were local witnesses whereas the petitioner was a stranger in the town. The local witnesses were interested witnesses and therefore their statements should not have been believed. The trial court as well as the appellate court erred in believing the evidence of the interested witnesses and the conviction on the basis of such interested witnesses was unsustainable. I am unable to agree. 5. There is no rule of law nor of prudence that local witnesses should not be believed. If an accident occurs on a public road in a village and is witnessed by one or more witnesses, the eye witnesses are more likely to be the residents of the locality or the persons visiting that locality on business or some other purpose. Merely because the persons are residents of the village or the locality where the accident occurred, they cannot be called as interested witnesses. On merits, nothing has been shown to me why the witnesses should have been disbelieved. 6. It is settled principle of law that revisional jurisdiction is to be exercised in exceptional circumstances when there is a glaring defect in procedure or manifest error of point of law resulting in miscarriage of justice. In Amar Chand v. Shanti Bose, reported in AIR 1973 SC 799 , the Supreme Court has laid down as follows: "20. Even assuming that the High Court was exercising jurisdiction under Section 439, in our opinion, the present was not a case for interference by the High Court. The jurisdiction of the High Court is to be exercised normally under Section 439, Criminal Procedure Code, only in exceptional cases, when there is a glaring defect in the procedure or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice. The jurisdiction of the High Court is to be exercised normally under Section 439, Criminal Procedure Code, only in exceptional cases, when there is a glaring defect in the procedure or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice. The High Court has not found any of these circumstances to exist in the case before us for quashing the charge and the further proceedings." In State of Orissa v. Nakula Sahu, reported in AIR 1979 SC 663 , the Supreme Court reiterated the position thus: "9. So far as the first point is concerned, it is to be emphasised that although the revisional power of the High Court under S.439 read with Sec. 435 of the Code of Criminal Procedure, 1898 is as wide as power of Court of Appeal under S.423 of the Code, it is now well settled that normally the jurisdiction of the High Court under Sec.439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice. Reference in this connection may be made to the decisions of this Court in Amar Chand Agarwalla v. Shanti Bose (1973) 4 SCC 10 : ( AIR 1973 SC 799 ) and Akalu Ahir v. Ramdeo Ram (1973) 2 SCC 583 : ( AIR 1973 SC 2145 ). In the latter case viz. Akalu Ahir v. Ramdeo Ram (supra) this Court following its earlier decision in Amar Chand Agarwalla v. Shanti Bose (supra) held that in spite of the wide language of S.435 of the Code of Criminal Procedure, 1898 which empowered it to satisfy itself as to the correctness, legality or propriety of any findings, sentence or order recorded or passed by any inferior court situate within the limits of its jurisdiction and as to the regularity of any proceeding of such inferior court and in spite of the fact that under S.439 of the Code it can exercise inter alia the power conferred on a court of appeal under S. 423 of the Code, the High Court is not expected to act under S.435 or S.439 as if it is hearing an appeal. The power being discretionary, it has to be exercised judiciously and not arbitrarily or lightly. The power being discretionary, it has to be exercised judiciously and not arbitrarily or lightly. Judicial discretion, as has often been said, means a discretion which is informed by tradition, methodised by analogy and disciplined by system." 7. In the absence of any perversity in the manner of appreciation of evidence this Court, in exercise of revisional jurisdiction, cannot set aside the concurrent finding of fact recorded by the two courts below about the negligence in driving the S.T. bus by the petitioner. For these reasons, there is no merit in the revision application, which is hereby rejected. Rule is discharged. Application dismissed.