The State of Maharashtra vs Prakash Rajaram Harale

The appellant - State has filed this Appeal

against the judgment and order dated 18.07.2003 passed in

SCC No.145 of 2003 by learned Judicial Magistrate, F.C.,

Aurangabad, thereby acquitting respondent - Prakash

Rajaram Harale (original accused) of the offences

punishable under sections 279, 337, 427 and 304-A of the

Indian Penal Code [for short "the IPC "].

The brief facts of the prosecution case are as

under :-

. On 09.10.2002 at about 09.00 a.m. Near Amarpreet

Hotel, Aurangabad on Jalna Road the accused drove his

tourist vehicle i.e. travel bus bearing No. MH-01-H-5505

[hereinafter referred to as "the offending bus"], in rash

and negligent manner and thereby gave dash to one Scooty

which was driven by Vandana Baburao Chide Patil and

caused injuries to her head. She was admitted in

Kamalnayan Bajaj Hospital. After receiving information

of the incident, her husband - Baburao rushed to

Kamalnayan Bajaj Hospital. He found that the deceased

sustained injuries on her head. Therefore, he went to

Jawahar Nagar Police Station. His statement was recorded.

Treating the same as FIR, crime No.282 of 2002 for the

offence under sections 279, 337 and 427 of the IPC was

registered and the Head Constable Jawale (PW-7) started

the investigation. He went to the spot where he prepared spot panchanama in presence of panchas as well as

recorded statements of witnesses. So also the

Investigating Officer recorded statement of the injured

by issuing letter to the Hospital authorities. While

taking treatment in the above said hospital, deceased

died on 12.02.2002 and thereafter offence under section

304-A of the IPC was added in the crime already

registered against the accused. After completion of the

investigation, PHC Jawale arrested the accused and filed

charge-sheet against the accused, in the Court of the 6th

JMFC, Aurangabad, alleging that the accused drove

offending bus rashly and negligently and due to said act,

caused death of the deceased - scooty rider.

The learned JMFC framed charge against the

accused for the offences punishable under sections 279,

337, 427 and 304-A of the IPC, to which the accused

pleaded not guilty and claimed to be tried. His defence

was denial.

To prove charge against the accused the

prosecution has examined in all seven witnesses and

relied upon spot panchanama and post-mortem report.

Considering said evidence adduced by the prosecution, the

Trial Court held that the prosecution has failed to prove

offences under sections 279, 337, 427 and 304-A of the

IPC against the accused and acquitted him of the said

offences by the impugned judgment and order. Therefore,

this appeal against acquittal by leave, which was granted

as per order dated 15.09.2004.

The learned APP submits that evidence of eye

witnesses PWs 5,6 and 7 is believable and sufficient to

prove aforesaid offences against the accused and death

due to accidental injuries is not in dispute.

The learned Advocate for the accused has

supported the impugned judgment and submits that the

evidence led by the prosecution is not sufficient to

prove that the act of the accused in driving the

offending bus was rash and/or negligent and therefore the

Trial Court has rightly held that the said material

ingredients of offences alleged against the accused are

not proved and therefore the Trial Court has rightly

acquitted the accused of the offences with which he was

charged.

I have carefully considered the submissions of

the learned APP and learned advocate for accused and with

their assistance I have perused the evidence adduced by

the prosecution. Also I have perused the impugned

judgment.

The prosecution has alleged that on 09.10.2002

at about 09.00 a.m. in the square in front of Hotel

Amarpreet, Jalna Road, Aurangabad, accused drove

offending bus rashly or negligently and dashed scooty and

caused hurt to the deceased scooty rider. Due to the

said act ultimately he caused death of the scooty rider -

Vandana Chide Patil. To prove the said fact, the

prosecution has mainly relied upon the evidence of eye

witnesses Pws 3,5 and 6.

Before considering the evidence of PWs 3,5 and

6, it is necessary to know meaning and distinction

between rash and negligent act. In the case of Krishna

Bahadur Chetri Vs. State of Assam, 1979 Cri.L.J.1258

(Gauhati High Court), in para 14 it is observed as

under :- "14. xxxxxx There is a marked distinction between a rash act and a negligent act. In the case of a rash act the criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. A culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow but with the hope that they will not and sometimes with the optimism that they will not, and often with the belief that the author has taken sufficient precautions to prevent their happenings. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused to have adopted. Negligence implies, an omission to do something which a reasonable man,

guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and a reasonable man would not do. Thus culpable negligence is acting without the consciousness that the illegal or mischievous act will follow, but in circumstances which saw that the actor or the author has not exercised the caution incumbent upon him and if he had he would have had the consciousness. The imputability arises from the neglect of civil duty of circumspection. This is the law settled by their Lordships in Bhalchandra Waman Pathe V. The State of Maharashtra 1968 SCD 198.

xxxxx"

Bearing in mind the above distinction between a

negligent act and a rash act, I proceed to consider the

evidence of above eye witnesses. The evidence of PW-3

Kamalbai Pawar is that at the material time of incident,

she as well as deceased Vandana were teacher in Shivaji

Girls High School, Aurangabad. On the day of incident,

she as well as the deceased were going on their separate

vehicles to the school and the vehicle of the deceased

was in front of her vehicle. She deposed that when they

reached at Amarpreet square, one travel bus gave dash to

the deceased. Due to said dash, the deceased fell down

and became unconscious. She informed the incident to her

school and then to the husband of the deceased. The

driver of the said travel bus admitted the deceased in

Kamalnayan Bajaj Hospital, Aurangabad. Then she was

shifted to Dhoot Hospital, Aurangabad for better

treatment. The accused before the Court was driving the

said bus at the time of accident. The deceased died

during treatment in Dhoot Hospital, Aurangabad. In the

cross-examination, she denied that she never witnessed

the incident.

The evidence of PW-5 - Sandip Chavan is that

prior to 3-4 months of recording his evidence on

09.04.2003, he was coming from bus stand, leaving his

uncle at his house at Vishnu Nagar. When he reached at

Amarpreet square on Jalna Road, he saw that one travel

bus came in high speed from the front side and gave dash

to a scooty rider woman, who was coming from Savarkar

square towards Amarpreet square. Said bus was stopped at

some distance by the driver. He stated that the accused

present before the Court was driving the bus at the time

of accident. In the cross-examination, he has denied that

the driver of travel bus was not driving the bus in high

speed. So also he denied that the accused was not

driving said bus at the time of accident.

The evidence of PW-6 Jitendra Toshniwal is that

the incident took place 8 months prior to recording his

evidence on 16.06.2003. At that time he was going by

auto-rickshaw from Mondha Naka towards Paithan Road and

when their rickshaw came near Amarpreet Hotel, one of the

passangers from their rickshaw got down. At that time

one private bus came from Mondha Naka area and said bus

gave dash to one scooty driver, which was crossing the

road. Due to dash, the scooty driver i.e. one lady fell

down on the divider and sustained injury. After the

accident the bus was stopped at some distance and said

driver came near the spot of accident. He stated that he

can identify the driver, if he comes before him. There

is no proper identification of accused-driver of the said

bus by this witness.

On perusal of the ocular evidence of PWs 3,5 and

6, it is clear that their evidence is not shattered in

the cross-examination on behalf of the accused. On

considering the evidence of Pws 3 and 5 an inference can

be drawn that at the material time of the accident, the

accused was driving the offending bus. The evidence of

Pws 3 and 6 is not sufficient to infer that the said

accused was driving the offending bus, rashly or

negligently as both these witnesses have not stated

anything regarding speed of the bus at the relevant time

of the accident or regarding manner of driving of bus by

the accused. The evidence of PW-5 as referred above

shows that at the material time of the accident one

travel bus came in high speed from front side and gave

dash to ons scooty rider woman, who was coming from

Savarkar square towards Amarpreet square. He has also

not stated about the speed of the bus at the relevant

time of the accident. His uncorroborated evidence that

the bus came in high speed is not sufficient to infer

that the bus was driven by the accused either rashly or

negligently.

The prosecution has relied upon the panchanama

of spot of incident (Exh.11), which was prepared by PW-7

PHC Jawale in presence of panchas Sandip Pawankar (PW-1)

and Sukhdev Garad. This panchanama does not show tyre

marks at the spot of accident so as to say that at the

relevant time the offending bus was driven in high speed

and rashly by the accused. This panchanama shows that a

scooty was laying along the road divider and left side

handle of the scooty was bent. So also, left side

indicator, headlight and side glass of left side were

found broken. The map along with this panchanama shows

that the bus was proceeding in East-West direction and

the scooty was proceeding in South-North direction and in

the square the accident took place and further it shows

that the divider on the road was to the North of the spot

of the accident. Considering the said situation and

directions of both the vehicles at the relevant time of

the accident, if offending bus would have dashed the

scooty, right portion of the scooty was required to be

damaged. As mentioned above, left front portion of the

scooty was damaged. Therefore, it appears that left

portion of the scooty was damaged after it was hit

against road divider and not essentially due to dash of

the bus. In the above said circumstances noted in the

panchanama, it can be said that there was some error of

judgment while driving their respective vehicles, both by

the accused and the rider of the scooty, when the

vehicles were passing through the square. Therefore,

panchanama (Exh.11) is of no help to the prosecution to

infer that the offending bus was in high speed at the

relevant time of accident, so as to say that the accused

drove the offending bus rashly or negligently.

There is no dispute that after the accident the

deceased was admitted in Kamalnayan Bajaj Hospital in

injured condition and thereafter she died in Dhoot

Hospital, while taking treatment on 12.10.2002 as deposed

by her husband Baburao Chide Patil (PW-2) and as deposed

by Dr. Inamdar (PW-4), who conducted post-mortem

examination on the dead body on 13.10.2002 in Ghati

Hospital. As per the evidence of Dr. Inamdar (PW-4) the

death of the deceased was caused due to head injury as

mentioned in post-mortem report (Exh.16). Thus, on the

basis of above evidence an inference can be drawn that

death of the deceased was caused due to head injury.

But, it cannot be said that the accused caused death of

the deceased due to rash and negligent driving, to

attract offence punishable under section 304-A of the

IPC. So also, the evidence adduced by the prosecution is

not sufficient to infer that the accused drove the

offending bus either rashly or negligently to attract

offence under section 279 of the IPC. The evidence of

Dr. Inamdar (PW-4) regarding injury on the person of the

deceased as noted in para 17 of the post-mortem report

(Exh.16) is not sufficient to infer that the accused

caused hurt to the deceased due to rash and negligent act

of driving the offending bus to attract offence under section 337 of the IPC. Thus, I hold that the prosecution

has failed to prove offence punishable under sections

279, 337 and 304-A of the IPC. The Trial Court has

rightly held so.

As regards offence punishable under section 427

of the IPC is concerned, the material allegation against

the accused is of rash and negligent driving of the

offending bus by him and therefore it cannot be said that

the accused caused mischief by causing wrongful loss or

damage to the property i.e. scooty of the complainant -

husband of the deceased. Therefore, offence punishable

under section 427 of the IPC is not attracted and hence

the Trial Court has erred in framing charge under section

427 of the IPC against the accused.

For all the reasons discussed above, as the

prosecution has failed to prove offence punishable under

sections 279, 337, 304-A of the IPC against the accused

beyond reasonable doubt and as offence punishable under

section 427 of the IPC is not attracted against the

accused, the Trial Court has rightly acquitted the

accused of the aforesaid offences, with which he was

charged by the impugned judgment and order. Said view

taken by the Trial Court is a reasonable and possible

view. There is no error committed by the Trial Court in

appreciating the evidence. As such, there is no ground

to interfere with the impugned judgment and order. Thus,

the appeal being devoid of merits, same is liable to be

dismissed. Accordingly, the appeal is dismissed. Bail

bond of the accused stands cancelled.

Learned Advocate Mr.D.R. Markad was appointed as

amicus curie to represent the respondent. This Court

appreciates his assistance in this appeal for coming to a

proper conclusion. His fees is quantified at Rs.7000/-

(Rupees Seven Thousand Only).