BUDHA SHEN PANDEY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) On 25th September, 1971, Head Constables Gaikwad received a telephone message at about 1-45 p.m. at Aarey Sub-Police Station that a milk van belonging to Aarey Colony, M.S. Depot was involved in an accident at Unit No. 21 on Powai Road. He proceeded to the place of accident and found the appellant-driver, Jadhav (P.W. 2) and Sarjuprasad (P.W. 3) injured and that the milk van over-turned. He reported the matter to Sub-Inspector Ghag who went to the spot and made a panchanama. (Ex.B). Gaikwad took the injured to Aarey Colony Hospital for treatment. His First Information Report, (Ex. A) was recorded. After completion of the investigation, the appellant was charge-sheeted and he was tried by the learned Presidency Magistrate, 26th Court, Borivli for the offences under sections 279 and 337 I.P.C. read with section. 116 of the Motor Vehicles Act, 1939. The learned Magistrate on consideration of the evidence held that it was proved that the appellant was driving his vehicle rashly and negligently and thereby caused simple hurts to himself, Jadhav (P.W. 2) and Sarjuprasad (P.W. 3). He also held that the appellant had driven his vehicle in a manner endangering human life. In consequence of this finding, the learned Magistrate convicted the appellant under sections 279 and 337 of the Indian Penal Code and sentenced him to suffer simple imprisonment for one day and to pay a fine of Rs. 200/- on each count and in default to suffer further rigorous imprisonment for one month. These sentences were ordered to be undergone concurrently and no separate sentence under section 116 of the Motor Vehicles Act was passed. Being aggrieved by the said order, the appellant has come in appeal.

(2.) Mr. Rane, the learned Counsel for the appellant has contended, firstly that the learned Magistrate failed to consider the prosecution evidence on record. Secondly the learned Magistrate arrived at his finding on consideration of the defence of the appellant as indicated in the cross-examination on his behalf of the prosecution witnesses and his statement under section 342 of the Criminal Procedure Code. In the circumstances Mr. Rane has submitted that there has been failure of justice and the appellant has been wrongly convicted.

(3.) The prosecution led the evidence of the two occupants of the milk van which was driven by the appellant. These occupants were Jadhav (P.W. 2) and Sarjuprasad (P.W. 3). Both of them were sitting at the place provided for sitting behind the seat of the driver. Their evidence shows that the milk van had slipped. The van was not driven in excessive speed because it slipped and hence the driver lost the control. It was raining or drizzling at the time and there was mud on the road. Their evidence finds support from the evidence of the Panch Jadhav (P.W. 4) that there were type marks on the road and it was drizzling. His evidence no doubt, refers to the conditions of the road at about 4 p.m. when the Panchanama was made. The recitals in the Panchanam indicate at the Powai Road where the accident took place, there was wire fencing on either sides with cement poles at the edges of the cutcha road and on the cutcha road small grass is grown up with small bushes. The width of the tar road is 4.20 Metres. The width of cutcha road on either sides is 1.20 Metres each. It also makes reference to the tyre marks. The prosecution also led the evidence of Dr. Vasantrao (P.W. 5) who produced certificates of injuries of the appellant, P.W. 2 and P.W. 3. On consideration of the evidence, I fined that the prosecution has failed to bring the charges under sections 279 of 337 I.P.C. home to the appellant. The prosecution evidence merely established the fact of accident in which the appellant P.W. 2 and P.W. 3 received minor injuries and that the milk van had turned on its left side. The evidence is not clear as to whether the milk van had turtle or upside down or failed on its left side. From this evidence it is also not possible to infer that the appellant was driving the vehicle rashly or negligently so as to endanger human life or he did any act so rashly or negligently so as to endanger human life. The defence of the appellant was that the vehicle had slipped and fell on one of its sides. This defence finds support not only from the evidence of P.W. 2 and P.W. 3 who were the occupants of the vehicle and had testified to the same but having regard to the fact that it had rained and the tar road had cutcha road on its sides and there were tyre marks visible after the accident, it is not improbable that the appellants vehicle slipped on account of the mud and the rain water on the road and as a result thereof he was unable to control the same and the accident took place.