SUDAM Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE revision is admitted. Heard finally with the consent of both the sides.

(2.) THE case of prosecution in short is that, on 12.10.2007, deceased Sunder Tukaram Mule along with other labours, was travelling in a trolley of tractor driven by the applicant - accused. The tractor was moving loaded with sand. From Karadgaon it was going towards Sailu. Deceased Sunder Tukaram Mule along with other labours was sitting in the trolley and near Madhusudan Ginning on Sailu -Parbhani Road, the trolley turned turtle in which Sunder was grievously injured. Another person namely Sopan Khose was also injured. Sunder Mule, who was at that time injured, was taken to Civil Hospital, Sailu. As his condition was not good, he was shifted to Civil Hospital, Parbhani and ultimately at Government Medical College and Hospital, Ghati, Aurangabad, where he succumbed to the injuries on 17.10.2007. The wife of the deceased, Kamalbai Mule filed F.I.R. at Exhibit 24. The matter was investigated and charge sheet was filed. The present applicant was tried before Judicial Magistrate, First Class, Sailu in S.C.C. No.37/2008. The Magistrate found that Sunder Mule died due to rash and negligent driving by the applicant - accused. The applicant came to be convicted under Section 279 of the Indian Penal Code and sentenced to suffer R.I. for 3 months and to fine of Rs.1000/ -, and in default of payment of fine, to suffer S.I. for one month. For the offence under Section 304A of the Indian Penal Code, the applicant came to be convicted and sentenced to suffer R.I. for one year and to pay fine of Rs.2000/ -. The sentences were directed to run concurrently.

(3.) LEARNED counsel for the applicant has argued that, in the present matter, in the trial Court, the post mortem notes were not proved and thus, according to him, conviction under Section 304A of the Indian Penal Code could not have been imposed. It has been argued that the Sessions Judge in para 8 of the judgment, referred to the contents of the post mortem report, which the Sessions Judge could not have done. Reliance is placed on the case of Bhanda Garh Vs. State of Assam, reported in : 1984 Cri.L.J. 217. In that matter, the High Court observed that the injury report (Exhibit 5) could not be admitted in evidence and relied on by the prosecution because the Doctor who examined the appellant therein was not examined. Reliance has been placed on the case of State of Himachal Pradesh Vs. Jai Chand, reported in : (2013) 10 SCC 298, where in para 21 the observations were that the post mortem report though not a substantive piece of evidence, but the evidence of doctor could not be said to be insignificant. That matte was relating to offence under Section 302 of the Indian Penal Code. Learned counsel submitted that, as post mortem report is not proved, Section 304A of the Indian Penal Code could not be said to be established. It has also been argued that for Section 304A, death has to be direct result of the rash and negligent act, and for this, post mortem report was required to be proved by calling the witness. Reliance has been placed on the case of Kurban Hussein Mohammedalli Bangawalla Vs. State of Maharashtra, reported in : AIR 1965 SC 1616. That was a matter with reference to negligent omission to take care with fire and combustible matter.