YAMUNABAI GHANDHARRAO SADAPHAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) One Yamunabai Gangadharrao Sadaphal, widow of deceased Gangadharrao, who died in an accident on 28th November, 1977, as a result of collision between a fiat Car No. MRH 9101 and a motor cycle bearing No. MXP 6048 has filed this criminal revision application against the order of acquittal passed by the learned Judicial Magistrate, First, Class, Rahuri, acquitting one Abhaya Mahabal Divekar, the original accused in the said case. The police had filed the charge-sheet on 28th February, 1978 against accused respondent No. 2. herein, for having committed offences punishable under sections 304(A), 338 and 279 of the Indian Penal code read with section 116 of the Motor Vehicles Act. It was the prosecution case in the trial Court, as is disclosed from the charge-sheet, (Exh. 1) that on 28th November, 1977, between 1.00 and 2.00 p.m., the accused had driven his fiat Car No. MRH 9101 rashly and negligently on the Nagar Road within the limits of Dhamori Shivar (about seven miles from Rahuri) and dashed against motor cycle No. MXP 6048. It was also the prosecution case against him, that as a result of such negligent and rash driving on the part of the accused, the passenger on the motor cycle, one Gangadharrao Sadaphal had died and the two other co-passenger who were travelling along with the deceased Gangadharrao were injured and one of them viz., Bajirao Dhondiba had sustained grievous hurt.

(2.) From the first information report (Ex. 20) lodged by Police Head Constable Krishna Sakharam (P.W. 3) it is clear he came to know about the accident in question when he was directed by Police Jamadar Patel to register the offence and investigate the same. In the first information report, he has discerned the nature of the accident and the name of the accused as well as the name of the deceased and those of the injured witnesses. Police Head Constable Krishna Sakharam, after drawing the panchanama of the scene of the offence (Ex. 10) also held inquest panchanama (Ex. 21) in respect of the deceased, Gangadharrao. Thereafter, he got both the vehicles examined by the R.T.O. He, thereafter, filed the charge-sheet. He handed over investigation on 29th November, 1977 to Police Sub-Inspector Khurmale.

(3.) With the assistance of the learned Counsel for the Petitioner, Mr. Narendra Chapalgoanker and the learned Counsel. Mr. V.T Walawalkar for Respondent Divekar and the learned Public Prosecutor, J.A. Barday, I have gone through the entire record and I am constrained to observe that not only this case has not been, properly handled by the prosecuting agency but there are ground to believe that the infirmities which remained in the prosecution case are not merely accidental. It is surprising that when the offence came to be registered on 29th November, 1977 by Police Head constable Krishna Sakharam and when thereafter, panchanama of the scene of offence and inquest panchanama came to be drawn on the same day, he has not recorded the statement of the two witnesses injured in the accident. His first information report makes it clear that names of the two witnesses who were injured were known to the Police Head Constable at the time of giving his first information report on 29th November, 1977 itself. The prosecution has not explained nor has the Police Head Constable Krishna Sakharam deposed as to why the statement of the injured witnesses were not recorded earlier on 28th January, 1977. It seems from the record that these statement of the two injured persons, i.e Bajirao and Damodhar were recorded by P.S.I. Khurmale on 28th January, 1978. But this is not all. This is only the beginning of a rather systematic plan on the part of the prosecution to keep away these two important witnesses who could have thrown light on the manner of the accident that took place.