Sudam vs The State of Maharashtra

A.I.S. Cheema, J.—The revision is admitted. Heard finally with the consent of both the sides.

The case of prosecution in short is that, on 12.10.2007, deceased Sunder Tukaram Mule along with other labours, was travelling in a trolley of tractor driven by the applicant- accused. The tractor was moving loaded with sand. From Karadgaon it was going towards Sailu. Deceased Sunder Tukaram Mule along with other labours was sitting in the trolley and near Madhusudan Ginning on Sailu-Parbhani Road, the trolley turned turtle in which Sunder was grievously injured. Another person namely Sopan Khose was also injured. Sunder Mule, who was at that time injured, was taken to Civil Hospital, Sailu. As his condition was not good, he was shifted to Civil Hospital, Parbhani and ultimately at Government Medical College and Hospital, Ghati, Aurangabad, where he succumbed to the injuries on 17.10.2007. The wife of the deceased, Kamalbai Mule filed F.I.R. at Exhibit 24. The matter was investigated and charge sheet was filed. The present applicant was tried before Judicial Magistrate, First Class, Sailu in S.C.C. No.37/2008. The Magistrate found that Sunder Mule died due to rash and negligent driving by the applicant- accused. The applicant came to be convicted u/s 279 of the Indian Penal Code and sentenced to suffer R.I. for 3 months and to fine of Rs.1000/-, and in default of payment of fine, to suffer S.I. for one month. For the offence u/s 304A of the Indian Penal Code, the applicant came to be convicted and sentenced to suffer R.I. for one year and to pay fine of Rs.2000/-. The sentences were directed to run concurrently.

The applicant- accused filed Criminal Appeal No. 38/2010 before the Sessions Judge, Parbhani. The Sessions Judge, Parbhani, after hearing the parties, dismissed the appeal and hence the present revision application.

Learned counsel for the applicant has argued that, in the present matter, in the trial Court, the post mortem notes were not proved and thus, according to him, conviction u/s 304A of the Indian Penal Code could not have been imposed. It has been argued that the Sessions Judge in para 8 of the judgment, referred to the contents of the post mortem report, which the Sessions Judge could not have done. Reliance is placed on the case of Bhanda Garh Vs. State of Assam, In that matter, the High Court observed that the injury report (Exhibit 5) could not be admitted in evidence and relied on by the prosecution because the Doctor who examined the appellant therein was not examined. Reliance has been placed on the case of State of Himachal Pradesh Vs. Jai Chand, where in para 21 the observations were that the post mortem report though not a substantive piece of evidence, but the evidence of doctor could not be said to be insignificant. That matte was relating to offence u/s 302 of the Indian Penal Code. Learned counsel submitted that, as post mortem report is not proved, Section 304A of the Indian Penal Code could not be said to be established. It has also been argued that for Section 304A, death has to be direct result of the rash and negligent act, and for this, post mortem report was required to be proved by calling the witness. Reliance has been placed on the case of Kurban Hussein Mohammedali Rangwalla Vs. State of Maharashtra, That was a matter with reference to negligent omission to take care with fire and combustible matter.

For the same purpose, reliance was placed on judgment of the Supreme Court in the case of Suleman Rehiman Mulani and Another Vs. State of Maharashtra, which was a matter u/s 304A of the Indian Penal Code. In that matter, the accused did not have a regular licence and was having only a learner''s licence. The Supreme Court was of the view that there is no presumption in law that a person who possesses only a learner''s licence or possesses no licence at all does not know driving. Ignoring this aspect, it was found that it was necessary for prosecution to establish rash or negligent act.

It has been further argued by the learned counsel for applicant that the lower Courts observed that the applicant had driven the tractor in zigzag manner and that was one of the reasons for holding the applicant guilty for rash and negligent driving. According to the learned counsel, in statement u/s 313 of the Criminal Procedure Code, it was not put to the accused that he was driving zigzag and thus, the applicant did not get opportunity. Reliance has been placed on the case of State of U.P. Vs. Mohd Iqram and Another, and argued that the circumstance could not be used against applicant.

It has been further argued by the learned counsel that the record shows that the trial was conducted in a summary manner, but still sentence of imprisonment of 1 year has been imposed, which could not have been done keeping in view Section 262(2) of the Code of Criminal Procedure (Cr.P.C. for short).

Against this, learned A.P.P. submitted that the Courts below have concurrently found the applicant to have driven the vehicle rashly and negligently and the evidence has been properly appreciated. The driver and other labours were sitting in the trolley and the applicant drove rashly and negligently. According to learned A.P.P., the inquest panchanama was admitted and witnesses were not challenged regarding evidence of death due to the incident and thus, death due to incident was one more in dispute and the argument now raised regarding post mortem cannot be accepted.

I have gone through the rulings. Keeping the principles of law in view, facts of present matter need to be appreciated. I have gone through the record as well as judgments of both the courts below. P.W.1 Kamlabai is the complainant, but she was not the eye witness. There is evidence of P.W.2 Maroti, whose evidence shows that he was travelling by the tractor concerned and accused was driving the tractor. The accused had given cut and because of that trolley turned turtle. His evidence is that, in the accident, Sunder Mule sustained injuries and was taken to hospital and later died in hospital. The evidence is that, the accused took cut and lost his control and because of that the trolley turned turtle.

Then there is evidence of P.W.3 Balu. He is also eye witness and was travelling by the same tractor, deposed that the accused drove in zigzag motion and it turned turtle. He deposed regarding the incident and Sunder Mule getting injured and that he later died in hospital. P.W.4 Dnyanoba proved the spot panchanama (Exhibit 26). There is Evidence of P.W.5 Asaram, who is not an eye witness. The other injured P.W.6 Sopa, although has been declared hostile, has also deposed that the accused was driving the tractor and suddenly took a cut and because of that the trolley turned turtle. P.W.7 Subhash registered the offence. P.W.8 Arvind Shinde had carried out the investigation.

Although in this revision for the first time question has been raised that the post mortem report was not proved, if the evidence which is on record, is gone through, (which I have just done), it does not appear from the evidence that the fact was disputed that the incident took place in which Sunder Mule got injured and ultimately died due to the injuries. In fact the inquest panchanama (Exhibit 25) was admitted, which referred to the injuries taking place due to the accident and that the person had died. Thus, I do not find that much importance can be given to argument on this count. The witnesses have deposed regarding the incident and death taking place. The fact of Sunder getting injured and dying is not disputed in the trial Court or before the first appellate Court. Of course, the Sessions Court could not have read the contents of the post mortem report. However, even if that part of the judgment of the Sessions Court is ignored, there are sufficient other facts which have been proved on record and discussed by the courts below, on the basis of which the offence proved against the applicant is established.

As regards the argument that it was not put to the accused that he was driving zigzag, if the statement u/s 313 of the Cr.P.C. is perused, although the word "zigzag" has not been used, it was put up to the accused in Question No.7 that while proceeding, he took a cut and due to that the tractor turned turtle. While driving suddenly taking a cut is another way of saying that the vehicle was driven zigzag. I do not find that the applicant has been prejudiced in any manner because the word "zigzag" was not used.

As far as regards the other argument that u/s 262(2) of Cr.P.C., in a summary trial, sentence of one year imprisonment could not have been imposed, I find that there is substance in the submissions of the learned counsel. Learned A.P.P. also did not dispute this proposition of the learned counsel for the applicant, looking to the provisions of Section 262(2) of Cr.P.C.

At the time of arguments, learned counsel for the applicant has submitted that, the applicant does not have a criminal background and he requested that this Court may increase the fine, but reduce the sentence to imprisonment already suffered. It is submitted that, the present applicant has been in jail since 19th March 2014 and now about 1 month is getting over. Learned A.P.P. submitted that, the bread earner of the family has expired, who was a labourer and it is a serious offence.

For reasons mentioned above, I find that, the present revision does not call for interference in the conviction under Sections 279 and 304A of the Indian Penal Code, which has been imposed by the Court of Judicial Magistrate, First Class and maintained by the Sessions Court. However, the sentence of imprisonment needs to be interfered with. Keeping in view Section 262(2) of Cr.P.C., the sentence of R.I. for one year u/s 304 of the Indian Penal Code would be required to be reduced. Learned counsel for the applicant has referred to the order of this Court in the case of "Babu s/o Fula Chavan Vs. The State of Maharashtra" (Criminal Revision Application No.1/2013), in which this Court (Coram : K.U. Chandiwal, J.), by order dated 4.2.2013, had reduced the sentence of imprisonment u/s 304A of the Indian Penal Code from one year to a period of two months. I find that, in the interest of justice, keeping in view the fact that a bread earner, a labourer, lost his life, although the sentence of imprisonment can be reduced, the fine needs to be increased. As such, I pass the following order.

O R D E R

(A) The present Criminal Revision Application is partly allowed. The conviction of the present applicant u/s 279 of the Indian Penal Code is maintained, but the sentence is modified. For offence u/s 279 of the Indian Penal Code, the applicant shall suffer R.I. for two months and pay fine of Rs.1000/-. In default of payment of fine, to suffer S.I. for one month.

(B) The conviction of the present applicant u/s 304A of the Indian Penal Code is maintained. The sentence is, however, modified. It is directed that, for offence punishable u/s 304A of the Indian Penal Code, the applicant shall suffer R.I. for two months and shall pay a fine of Rs.1,00,000/- (Rupees One Lakh). In default of payment of fine, the applicant shall suffer R.I. for three months. Fine amount of Rs.1 Lakh, if paid, shall be paid as compensation to complainant Kamalbai Sunder Mule.

(C) The substantive sentences of imprisonment shall run concurrently. Admissible set off be given to the applicant.