State of Maharashtra vs Shyamrao

W.M. Sambre, J.—Aggrieved by the Judgment and Order of acquittal passed by the Judicial Magistrate First Class, Court No. 2, Nagpur, on 4-5-1988, in criminal case No. 296/ 83, acquitting the accused for the offence punishable u/s 304A and 337 of the Indian Penal Code, the appellant-State has filed this appeal.

The main contention of the appellant-state is that the accused-respondent, who is the driver of the truck bearing No. MHS-1062, was driving the said truck in a rash and negligent manner at about 10.00 A.M. on 22-8-1983 and gave a dash to a girl named Aparna aged about 12 years who sustained injuries and subsequently expired, and also gave a dash to one Murlidhar, a cyclist, who also sustained injuries. The matter was reported to the Police Station, Sitabuldi, Nagpur and after completion of the investigation, charge sheet came to be filed against the accused.

The prosecution examined in all give witnesses and learned Trial Court, relying upon the evidence of P.W. 3 Motor Vehicles Inspector that the accident might have occurred due to mechanical defects in the vehicle, acquitted the accused. It is contended that this order of acquittal passed by the learned Magistrate is improper and illegal. The appellant further contended that even on the basis of the evidence of Murlidhar, who also sustained injuries, the conviction was required to be awarded. It is also contended that even though the said truck was driven at a high speed and in a negligent manner by the accused-driver, the learned Magistrate has given advantage of mechanical defect, which was improper. It is also contended that it was the duty of the driver to keep the truck in a fit condition before the same is put on the road.

It is pertinent to note that the incident occurred on 22-8-1983 at about 10 A.M. at Shankar Nagar, Nagpur. On the basis of the report lodged, the P.S.I, visited the spot and after drawing spot panchanama and inquest panchanama on the dead body, the dead body was sent to medical college for postmortem examination. Thereafter, the first information report came to be lodged.

The learned Magistrate formulated the following point-

Does prosecution prove that on 22-8-1983 at about 10.00 A.M. at Shankar Nagar, Nagpur, the accused drove his truck bearing No. MHS 1062 in rash and negligent manner and gave dash to Aparana and Murildhar and thereby caused death of said Aparna as alleged.

The findings of the learned Magistrate on this point were in the negative. While giving the reasons for the negative findings, the learned Magistrate has relied upon the evidence of Aran Kumar at Exhibit 18. P.W. 2 Rohini at Exhibit 19, P.W. 3 - Fakira at Exhibit 20, P.M. 4 Murlidhar at Exhibit : 22 and P.W. 3 - Mahadav at Exhibit : 25. The accused came to be identified by Murlidhar. Nothing has been brought on record by the defence counsel in his cross-examination, which can be said to be favourable to the defence. Considering the evidence of P.W. 2 Rohni, who corroborated the story narrated by P.W. 4 Murlidhar, the learned Magistrate has come to the conclusion that the accused was the driver of the said truck, and the contention of the accused that he was not driving the said truck but someone else was driving, was discarded. The learned Magistrate placed reliance on the evidence of P.W. 3 - Fakira, the Motor Vehicles Inspector, who has stated that the accident might have occurred due to mechanical defects in the truck. The said motor vehicle inspector when inspected the vehicle on 23-8-1983 found that brake of the rear wheel was not working and there was leakage in the brake-oil seal of the vehicle. He has further stated that because of the leakage of oil one of the rear brake did not work and it is possible that the said accident might have occurred because of this mechanical defect in the vehicle. While giving his opinion, he has not given any explanation as to how there can be accident for non working of brake of one of the rear wheel. In the absence of any explanation, in fact, it was not obligatory on the part of the learned Magistrate to accept the report of the said witness -P.W. 3 Fakira.

An expert from Regional Transport Office was called before this Court and his opinion was sought. One Mr. S.K. Roy, Deputy R.T.O., attended the Court, who has specifically stated that the opinion given by Fakira P.M. 3 at Exhibit : 21, no doubt, is correct, but while giving such opinion, it was obligatory on the part of the motor vehicles inspector to give details as to how the accident could have occurred, what can be the speed of the truck when such breakdown in the brake of the rear wheel occurred, etc. According to this expert, the opinion given by the Motor Vehicles Inspector is lacking in details. Mr. Roy. Dy. R.T.O., further contended that the speed of the truck when the accident occurred cannot be less than 70 Km.p.h. He contended that this shows that the vehicle was driven in a Very negligent manner and at a very high speed.

Without going into all the above details, the learned Magistrate has arrived at a conclusion on the basis of the report of the motor vehicles inspector and acquitted the accused. The truck was driven at a high speed and in a negligent manner in a crowded locality and, as such, the order passed by the learned Magistrate acquitting the accused was definitely improper and it cannot be said that the mechanical defect was the only reason for the present accident. Further, as discussed above, it was obligatory on the part of the driver to check the vehicle before the same is put on the road, which has not been done;

Mr. Thote, learned Counsel for the respondent contended that the conclusion arrived at by the learned Magistrate is liable to be sustained. He further contended that the evidence and report of the motor vehicles inspector clearly speak that there was mechanical defect in the brakes of the truck for which the driver cannot be held responsible. It is also contended that the report of the said motor vehicles inspector is clear cut, which shows that one of the brake of the rear wheel of the truck was not working and as per his opinion, the accident can occur because of the said mechanical defect. He has further argued that there was no evidence to the effect that the truck was driven in a high speed and in a negligent manner by the accused. Under these circumstances, he contended that the order passed by the learned Magistrate is liable to be sustained.

After going through the Judgment passed by the learned trial Court as well as the conclusion arrived at and also considering the expert''s opinion it is a clear-cut case where the driver was required to be held responsible for the accident. Conclusion has already been arrived at by the learned Magistrate on the basis of the evidence of the motor vehicles inspector. May it be a wrong conclusion, but it was obligatory on the part of the prosecution to examine the said motor vehicles inspector on the point of speed of the truck at the material time, failure of the brakes, effect thereof, the responsibility of the driver in keeping the vehicle in good condition, etc., which has not been done in the instant case. Under these circumstances, merely on the basis of the opinion given by Mr. Roy. DY. R.T.O., Nagpur, in this Court, conviction cannot be imposed, though there is a case of conviction.

10, In view of the above discussion, I am left with no other choice but to maintain the order passed by the learned Magistrate acquitting the accused. In the result, the criminal appeal No. 293 of 1988 fails and the same is dismissed.