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2017 DIGILAW 934 (BOM)

State of Maharashtra v. Prithviraj Daulati Deokar

2017-05-08

REVATI MOHITE DERE

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JUDGMENT : Revati Mohite Dere, J. This appeal, preferred by the appellant - State of Maharashtra is directed against the Judgment and Order dated 29th June, 1999, passed by the learned Judicial Magistrate First Class, Koregaon, in Summary Criminal Case No.1028 of 1996 acquitting the respondent-accused of the offences punishable under Sections 279, 337, 338, 304-A, 427 of the Indian Penal Code and under Section 184 of the Motor Vehicles Act. 2. The respondent-accused was driving a tempo bearing No. MH-11 2514, on the date of the incident i.e. on 18th November, 1996. According to the prosecution, at about 11.15 a.m., the said tempo collided with a motorcycle on a public road (Pusegaon to Koregaon), pursuant to which, the motorcyclist suffered injuries and expired. The pillion rider on the motor cycle is also stated to have received injuries. Pursuant thereto, a case was registered as against the respondent-accused. The police drew inquest panchanama, spot panchanama, recorded the statements of the witnesses etc., and after investigation filed a charge-sheet. According to the prosecution, on account of the rash and negligent act of the respondent-accused, the accident took place, in which the motorcyclist received injuries and succumbed to the same. 3. The respondent-accused pleaded not guilty and claimed to be tried. According to the respondent - accused, he was not driving the tempo in a rash and negligent manner and that it was the deceased who was riding the motorcycle, rashly and negligently, pursuant to which he collided with the tempo. The prosecution in support of its case examined 3 witnesses, PW1- Mukund Ramchandra Deokar, who was the cleaner of the tempo; PW2-Nitin Shridhar Chinchkar, who was riding pillion on the motorcycle of the deceased; and PW3-PSI Kundlik Gulab Waghmare, the Investigating Officer. After carefully going through the evidence on record, the learned Judge was pleased to acquit the respondent-accused of all the offences. 4. Perused the evidence on record as well as the impugned Judgment. The learned Judge has rightly observed that there is discrepancy and variance in the evidence of PW1- Mukund and PW2-Nitin. Considering their evidence, the learned Judge observed, that the motorcyclist (deceased) was at fault, as a result of which the incident took place. 5. PW1 - Mukund Ramchandra Deokar was the cleaner of the tempo. He has stated that on 18th November, 1996, they left Koregaon at around 11.00 a.m. towards Pusegaon. Considering their evidence, the learned Judge observed, that the motorcyclist (deceased) was at fault, as a result of which the incident took place. 5. PW1 - Mukund Ramchandra Deokar was the cleaner of the tempo. He has stated that on 18th November, 1996, they left Koregaon at around 11.00 a.m. towards Pusegaon. He has stated that the accident had taken place at some distance ahead of Kumathe 'T' square and near the bridge. He has stated that their vehicle was overtaking a tractor, when one Suzuki Motorcycle came from the opposite direction and collided with their tempo. He has stated that the motorcyclist received injuries, pursuant to which, he was taken to the hospital. In his cross-examination the said witness has admitted that the driver of the tempo i.e. the respondent-accused had shown the headlights and had intimated the vehicle coming from the opposite direction, that he wanted to overtake. He has further admitted that the motorcycle came in a high speed and collided with the tempo, and that the rider of the motorcycle could not control his vehicle. The evidence of PW2-Nitin Chinchkar, a pillion rider on the motorcycle of the deceased has deposed that he and deceased - Dhananjay left home, at around 9.00 a.m. on the day of the incident. He has stated that he was riding pillion on the said vehicle, when the incident took place. He has stated that they noticed a tractor coming from a opposite direction and that there was no third vehicle proceeding towards Satara. He has stated that the spot, where the incident took place, was a straight road. He has further stated that the tractor and the tempo were coming in succession from the opposite direction and that the tempo driver overtook the tractor and collided with their motorcycle. He has stated that he was thrown off from the bike, pursuant to which, he became unconscious and regained consciousness at the hospital, whereas the deceased - Dhananjay died on the way to the hospital. The said witness in his cross-examination has admitted that they had noticed that the tempo was going to overtake the truck. He has further admitted that the tempo had already crossed some distance, after having overtaken the tractor and that they had noticed the tempo from a distance of 100 feet. 6. The said witness in his cross-examination has admitted that they had noticed that the tempo was going to overtake the truck. He has further admitted that the tempo had already crossed some distance, after having overtaken the tractor and that they had noticed the tempo from a distance of 100 feet. 6. A perusal of the evidence of PW1-Mukund and PW2-Nitin shows that none of the said witnesses have stated that the respondent-accused was driving the tempo, either rashly or negligently. To sustain a conviction under Section 304-A, it is incumbent on the prosecution to prove, the same. In the present case, the said evidence is amiss. Neither, in the facts, the principle of res ipsa loquitur can be said to be applicable. 7. Considering the evidence on record, the learned Judge after evaluating the same, has rightly acquitted the respondent-accused. The impugned Judgment can neither be said to be perverse nor unsustainable. Hence, no interference is warranted in the same. 8. Accordingly, the appeal is dismissed. Appeal dismissed.