PARAS JANARDAN THORAT Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This Appeal is preferred against the judgment and order dated 29th January, 2011 passed by the Additional Sessions Judge, Nashik thereby convicting the appellant/accused for the offences punishable under sections 304 (II), 279, 337, 338 of the Indian Penal Code and also for the offence punishable under sections 184 and section 66(1) punishable under 192-A of the Motor Vehicles Act. It is the case of the prosecution that a luxury bus bearing No. MH-01-L-6956 carrying 81 passengers went to Saptashrungi Temple in District Nashik on 18th January, 2008. The appellant was a driver of the said vehicle. The bus started return journey from Saptashrungi Gad at about 9.30 p.m. The road was having several turns and when the bus travelled half a distance, the appellant/driver lost his control. The bus was in excessive speed and while taking U turn, it broke the safety wall and straightway fell in the deep valley. The appellant/driver jumped out of the bus at that time. However, out of 81 passengers in the bus, 41 passengers died and remaining 40 passengers were injured. The case was registered with Abhona Police Station at C.R. No. 05/2008 on 21st January, 2008 against the appellant/driver. The police drew spot panchnama, recorded the statements of the witnesses and collected necessary evidence. They seized the driving licence of the appellant. The appellant/driver was arrested. Inquest panchnama of the deceased were made. After completion of the investigation, Investigating Officer filed charge sheet in the Court of Judicial Magistrate First Class, Kalwan. As the offence was registered under section 304 Part II being triable by the Court of Sessions, the case was committed to the Court of Sessions. The charge was framed against the accused on 4th June, 2010. The accused pleaded not guilty and claimed to be tried.

(2.) The prosecution in all examined 8 witnesses including the passengers of the said bus, panchas and the police officers. The prosecution relied on the spot panchnama at Exhibit 95, panchnama of the road at Exhibit 98. The prosecution also produced death certificates of the persons who lost their lives in this unfortunate accident. The trial concluded in conviction. The punishment awarded by the learned Sessions Judge to the appellant/driver is thus:

(3.) The learned counsel for the appellant has submitted that the appellant was not rash and negligent at the time of driving the said bus. He relied on the evidence of PW-2 Pramod Shankarrao Deshmukh/driver of the ambulance, who was called immediately after the accident and he made six trips to Kalwan hospital. He further submitted that PW-2 Pramod Deshmukh in his cross-examination has admitted that the road of Saptashrungi Gad is 11 kms. from the bottom to the top and 20 minutes are required to climb the Gad and 10 minutes for coming down. There are 20 to 25 speed breakers before U turn while coming from the top. The learned counsel has submitted that PW-1 Chhedilal Bholanath Yadav has stated that the bus started at 9.30 p.m. to come back and the bus came to U turn at 10 p.m. On the basis of this evidence, the learned counsel made his submissions that this shows that the driver was not negligent, but he was driving the vehicle cautiously. The learned counsel further submitted that he cannot be convicted under section 304 Part II as he had no knowledge that this would amount to death or serious injuries to the passengers. The learned counsel submitted that this is an accident which could have been tried under section 304A of IPC. The learned counsel alternatively argued that the appellant was arrested on the same day. He was behind the bars for some period, then he was released on bail when the case was committed to the Sessions Court. He was on bail till the conclusion of the trial. As he was convicted, his bail bond was cancelled and the appellant is in the custody since 29th January, 2011. The learned counsel further submitted that the appellant/accused has undergone the sentence nearly for 4 years. He lost his son when he was in prison and he is having two minor daughters. Therefore, leniency be shown and the sentence awarded to him be reduced upto the period undergone the sentence.