WAMAN Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) In the present revision application, the applicant has challenged judgment and order delivered by learned Additional Sessions Judge in Criminal Appeal No. 17 of 2007 decided on 6th November, 2012. By the final order in the said appeal the learned Additional Sessions Judge has confirmed the order passed by Judicial Magistrate First Class in Regular Criminal Case No. 366 of 1999. The applicant had been convicted for the offences punishable under Sections 279 and 304-A of the Indian Penal Code by the learned Magistrate. In the appeal, as stated earlier, the said order has been confirmed and the appeal has been dismissed.

(2.) Mr. Mane-Patil has submitted that the whole case is based on the evidence of P.W. Nos. 1 and 3 who, according to the prosecution, are eyewitnesses. It is submitted by Mr. Mane-Patil that the learned trial Court held the applicant guilty for the above stated two offences mainly because the applicant was carrying goods in the passenger vehicle. It has come in the evidence that ten bags of fertilizers were being carried in the auto rickshaw which the applicant was driving. The auto rickshaw hit the deceased Kiran. The deceased was removed to hospital but was declared dead after admission.

(3.) Admittedly, the applicant was driving the said auto rickshaw. Mr. Mane-Patil submits that P.W. 1, who is uncle of the deceased, does not disclose as to in what manner the incident had occurred. Only because the witness tells the court that the vehicle was in high speed, the Court cannot presume that the vehicle driver must be negligent and rash. Mr. Mane-Patil has submitted that the rashness and negligence has to be proved by adducing evidence. Whether the driver was rash or negligent in driving will be decided on the basis of evidence. The opinion expressed by this witness in this regard cannot bring the Court to a conclusion that the driver was rash and negligent. Apart from this, it is submitted that P.W. 1, who is eyewitness to the incident, has admitted in his cross-examination that the deceased was crossing the road along with P.W. 3. It, therefore, appears that the deceased was crossing the road when the traffic was on. From the evidence of P.W. Nos. 1 and 3 it can be gathered that the deceased was not mindful of the fact that the traffic was running and he was to be very careful while crossing the road. Apart from this, P.W. 1 has further admitted in his cross-examination that the deceased suddenly went in front of the auto rickshaw on the road. As such it can be concluded that the auto rickshaw was on the road in its normal course and normal speed, it is the deceased who came into contact with the auto rickshaw due to his own mistake. If one goes to the evidence of P.W 3, who is father of the deceased and was accompanying the deceased at the time of the incident, it is difficult to get as to how the incident had occurred. To some extent the incident has been narrated by P.W. 1 only. The admissions given by P.W. 1 in his cross-examination are fatal to the prosecution. Even if I do not refer to the cross-examination of P.W. 1, the examination by itself is not sufficient to prove the rashness and negligence on the part of the applicant. In my view, both the Courts below had committed error in convicting the appellant for the offences punishable under Sections279 and 304-A of the Indian Penal Code. For the sake of repetition it may be mentioned that though the applicant was carrying fertilizers in the auto rickshaw, that by itself cannot be sufficient to hold that the applicant was driving rashly and negligently and was responsible for causing death of deceased Kiran. I am, therefore, of the view that the revision application needs to be allowed.