(1.) HEARD Mr. Shelat, the learned counsel for the applicant and Mr. Mirza, the learned A. P. P. for the State. Perused the record.
(2.) THE applicant was tried in Regular Criminal Case No. 2031/1987 before the Fourth Judicial Magistrate, First Class, Akola for the offences under sections 279, 337, and 304-A of I. P. C. THE learned Magistrate, by his Judgment and Order dated-30-8-1995, convicted the applicant for the said offences and sentenced him to suffer rigorous imprisonment for 3 months and to pay fine of Rs. 300/-, in default to suffer further R. I. for 1 1/2 months for offence under section279 I. P. C. ; to suffer R. I. for one year and to pay fine of Rs. 500/- in default to suffer R. I. for six months for offence under section304-A of I. P. C. ; and to suffer R. I. for six months and to pay fine of Rs. 500/- in default to suffer R. I. for six months. THE applicant preferred appeal before the Additional Sessions Judge, challenging this conviction and sentence. Learned Additional Sessions Judge, Akola in Criminal Appeal No. 57/1995, decided on20-8-1999, dismissed the appeal confirming the order of conviction and sentence. THE applicant has filed the present revision application challenging his conviction and sentence passed by the courts below.
(3.) MR. Shelat, learned counsel for the applicant, vehemently submitted that there is absolutely no evidence on record to show that the applicant was driving the truck at the time of accident. None of the witnesses examined by the prosecution has stated that the applicant was driving the truck. The courts below have come to the conclusion that the applicant was driving the truck at the relevant time only on the basis of the fact that the applicant admittedly reported the accident to the police station. It is submitted that merely because the applicant reported the accident to the police station, neither any inference could be drawn nor it could be presumed that the applicant was driving the truck. The learned counsel also pointed out that there is no evidence to show that Driver of the Truck was rash and negligent. The evidence of solitary eye witness Baban Deshmukh (P.W.2), who claimed to be an eye witness for the incident is far from truth and by no stretch of imagination, from his evidence, it can be gathered that the truck was driven in a rash and negligent manner. He also submitted that, taking into consideration the situation that prevailed and also the location of the spot, more particularly the truck having crossed the turning, the driver of the car is also accountable for the accident. Therefore, the finding of fact by the courts below as to applicant driving the truck and that too, in a rash and negligent manner at the time of occurrence, is based on no evidence and therefore, it is not sustainable. The courts below have committed an error in law in holding that the applicant committed an offence with which he was charged. The learned counsel placed reliance on the decision of the Apex Court in Avtarsingh and others Vs. State of Punjab, 2002 (7) SCC 419 : [2002 ALL MR (Cri) 2564 (S. C.)], wherein the Apex Court has set aside the concurrent findings of fact by the courts below including that of the High Court as to the factum of possession of contraband article by the appellants therein, when, on fact it was found that the appellants were only found seated on the bags while travelling in the truck.