ASHOK MAHADEO MAHAJAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The petitioner is a State Transport driver. On May 5, 1977, he was driving the State Transport Bus No. MHQ-8511 from Bombay to Anjurle. After taking a turn of the curve near Panvel, the bus was passing by the village Jite at about 8.30 a.m. on the high-way. At that time a girl by name Shakuntala Vaman Dhalpe aged about 10 or 11 years who was crossing the road, dashed against the front left side wheel of the bus and was thrown to a distance of about 46 feet. The driver applied the brakes and the bus stopped at about a distance of 46 feet from the place of the impact. The girl died on the spot. It is alleged that the incident occurred on account of rash and negligent driving of the petitioner and he was, therefore, prosecuted for offences punishable under section 304-A of the Indian Penal Code and 116 of the Motor Vehicles Act, in the Court of the Judicial Magistrate, First Class, Pen, District Kulaba. At the trial the prosecution mainly relied on the evidence of Draupadibai, the mother of the victim, and another witness Dr. Jadhav, son-in-law of Draupadibai. According to the prosecution case, there are two bus stops on either side of the road at the place where the accident occurred. The bus was proceeding from North to South. The two eye-witnessess were standing at the bus stop on the western side and waiting for a bus to take them to Bombay in the opposite direction. The girl Shakuntala was also with them, but had gone to the other side of the road to answer natures call. While she was returning and crossing the road to join her mother, the unfortunate accident occurred. Besides the two eye-witnesses, the prosecution also relied on the evidence of the Head Constable, Keshav Joshi, who on being informed of the accident by the petitioner himself, recorded the information given by him and went to the spot. He recorded, the inquest panchanama and sent the dead body for post-mortem examination and also drew the panchanama of the scene of offence. At the trial, the prosecution produced the panchanama and also rough sketch drawn by the Head Constable which are at Exhs. 19 and 27 respectively. The petitioner pleaded not guilty. His defence was that he was driving the bus in slow speed and cautiously. He was not able to see the girl crossing the road and she suddenly dashed on the bus. He denied that he was rash or negligent. On consideration on the evidence, the learned Magistrate rejected the defence, believed the prosecution evidence and found that the petitioner was driving the bus in a rash and negligent manner and thereby caused the death of Shakuntala.

(2.) The petitioner preferred an appeal in the Sessions Court at Alibag. The learned Addl. Sessions Judge we confirmed the conviction and sentence and dismissed the appeal. The petitioner has, therefore, filed this revision application challenging, hid conviction and sentence.

(3.) Mr. Agarwal, the learned Counsel, appearing for the petitioner submitted that the prosecution has not proved the panchanama by examining and panch witness. Even the Head Constable who recorded the panchanama has not testified to the correctness of the content of the panchanama. He, therefore, submitted that the Courts below have wrongly read the panchanama in evidence and used it against the petitioner. He further submitted that the defence of the petitioner that he was driving the bus at a slow speed is probable because the accident had occurred hardly at a distance of 100 feet from the sharp turn and it is not likely that the bus could be driven at a fast speed as alleged by the prosecution. He also contended that the bus was not expected to stop at the bus stop and, therefore, even if the evidence of the two eye-witnesses that they had signalled the bus driver to stop the bus is accepted, the petitioner was not bound to stop there, particularly having regard to the fact that these passengers were on the other side of the bus stop which meant that they wanted to catch a bus going in opposite direction. He submitted that it is quite likely that the driver who was proceeding at a normal speed might not have noticed the girl who was about to cross the bus when the accident took place. According to the learned Counsel, the prosecution has failed to establish its case that the death was due to rash or negligent driving on the part of the petitioner.