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2018 DIGILAW 1089 (BOM)

State Of Maharashtra v. Santosh Gajanan Jadhav

2018-04-19

V.M.DESHPANDE

body2018
JUDGMENT V.M. Deshpande, J. (Oral) - This appeal is filed by the State Government since the State is aggrieved by the judgment and order of acquittal passed by the learned Judicial Magistrate First Class, Barshitakli dated 12.01.2006 in Summary Criminal Case No. 1042/2001 by which the respondent was acquitted by the Court below of the offence punishable under Section 279, 337 and 304A of the Indian Penal Code and under Section 184 of the Motor Vehicles Act. 2. I have heard Mr. V. A. Thakare, learned A.P.P. for the appellant State and Mr. Arindam Niyogi, learned counsel for the respondent, appointed by this Court since in spite of service of notice, nobody was appearing on behalf of the respondent. 3. The FIR was lodged with Police Station, Barshitakli by Pradip Pawar (PW1) on 13.06.2001 (Exh.12). On the basis of the same, Crime No. 86/2001 was registered. The printed FIR is at Exh.13. According to the FIR, the first informant Shivcharan Ahir and Santosh Rathod (deceased) were coming from dairy of one Khope on three bicycles. They started from the dairy of Khope in between 07.00 to 07.30 in the evening and they were going towards their village Redwa. At about 7.45 in the night, one jeep came in high speed and gave dash resulting into death of Santosh. The FIR states that the jeep was owned by one Digambar Rathod (Tailor) and the respondent was driving the said jeep. 4. Ten witnesses were examined by the prosecution. The investigating officer was not examined. Pravin Pawar (PW1) and Shivcharan Ahir (PW2) are the relevant witnesses since they were accompanying the deceased Santosh though on separate bicycles. Gangilal Rathod (PW3) is father of the deceased who reached to the spot after information was given to him by Shivcharan (PW2). Abdul Hasan Abdul Sattar (PW4) is driver of the taxi who took Shivcharan to village Redwa and from there took the father of the deceased on the spot. Bhagwan Sarkate (PW5) is pancha witness on the spot panchanama (Exh.36) and also seizure memo (Exh.37). Lacchu Pawar (PW6), has turned hostile and his evidence is of no use. Sahebrao Kute (PW7) is a police person who has received the message about the accident and subsequent message about the death of the injured. Dr. Deepak Mankar (PW8) has performed the post mortem report (Exh.57). Lacchu Pawar (PW6), has turned hostile and his evidence is of no use. Sahebrao Kute (PW7) is a police person who has received the message about the accident and subsequent message about the death of the injured. Dr. Deepak Mankar (PW8) has performed the post mortem report (Exh.57). Abdul Majit Abdul Munaf (PW9) is Assistant Sub Inspector who has conducted inquest over the dead body (Exh.42). Suresh Rathod (PW10) is pancha on inquest panchanama. 5. From the above, it is clear that the evidence of Pravin (PW1) and Shivcharan (PW2), will have to be scrutinized to record a finding as to whether the judgment and order of acquittal passed by the Court below is sustainable or not. 6. The first informant Pravin (PW1) though did not state in the FIR about registration number, he states about the said in his evidence as MH18/A0081. The said number is also given by Shivcharan (PW2) in his evidence. 7. The learned Judge of the Court below, in my view, rightly found that there was darkness on the spot of occurrence. Even according to the FIR, the incident had occurred on 07.45 p.m. That itself shows that there was the dark especially when neither Pravin (PW1) nor Shivcharan (PW2) state that at that time, there was twilight. On the contrary, Shivcharan (PW2) has admitted in his crossexamination that nothing was visible on the road. Even according to the prosecution, the killer vehicle was not having head lights. Thus, there was complete darkness. In this context, it is really hard to believe that these two eye witnesses could identify who was the person driving the said jeep, which even according to the prosecution witness was running in the high speed. The panchanama of the jeep is also not proved. Though the investigating officer is not examined by the prosecution for the reasons best known to it, the said panchanama could have been proved by examining the pancha witnesses in whose presence the said was done. Even that exercise is also not done by the prosecution. 8. The judgment of the learned Magistrate shows that at the fag end of the trial, the accused filed an application (Exh.63) before it in which it is stated that in the Motor Accident Claims Petition No. 284/2002 arising out of the said accident, the number of the killer vehicle is shown as MH30/A0081. 8. The judgment of the learned Magistrate shows that at the fag end of the trial, the accused filed an application (Exh.63) before it in which it is stated that in the Motor Accident Claims Petition No. 284/2002 arising out of the said accident, the number of the killer vehicle is shown as MH30/A0081. Thus, in the present case, the prosecution wants to believe that the registration of the vehicle in question was MH18/A0081 whereas before the tribunal for determination of the compensation, the vehicle number is shown as MH30/A0081. Further, the owner of the vehicle is also not examined. Thus, even which was the vehicle is also not established by the prosecution beyond the reasonable doubt. 9. In my view, the Court below has rightly considered all these aspects and found that it was really hazardous to believe the evidence that the respondent was driving vehicle when the prosecution witnesses themselves state that there was darkness and therefore it would be really difficult to accept their testimony. 10. In view of above, no case is made out by the appellant State to interfere with the judgment of the trial Court. The appeal is therefore dismissed. The High Court Legal Services Sub Committee, Nagpur shall pay Rs. 5,000/to Mr. Arindam Niyogi, learned counsel appointed by this Court, towards his Professional