SAWAKAR GEETARAM ANDHALE Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioner herein was working as a driver of bus run by Thane Municipal Corporation (Hereinafter referred as TMT). It is the case of prosecution that on 24/02/1997, one Ashok Virappa Salian lodged a report at Rabale Police Station alleging therein that he earns his living by plying auto rickshaw bearing No. MH 04 - V - 7196. On 24/02/1997, he returned home at about 07.00 p.m. and noticed that a bus of Thane Municipal Transport bearing No. MCU - 9965 was parked in front of his house. The driver had taken the bus in reverse mode. The bus had dashed against a stone and at that time had knocked down a small boy aged about 3 years who was identified as Ajay Nanasaheb Pawar. People in the vicinity had gathered immediately and had taken the injured to Shivaji Hospital at Kalwa. At the time of admission, injured was declared dead. Complainant had specifically alleged in the report that driver of the said bus had parked his bus negligently and was not seated in the said bus. That by his negligent act, the minor child had died. On the basis of his report, crime was registered for offence punishable under section 279, 304(A) of Indian Penal Code. Applicant was arrested, produced before Judicial Magistrate First Class and then enlarged on bail. After completion of investigation, charge -sheet was filed. Summary Criminal Case No. 801 of 1997 was registered against the applicant. Prosecution has examined 7 witnesses to bring home the guilt of the accused. Learned Magistrate had observed that post mortem report below Ex. 27 was admitted by the accused, similarly inquest panchanama was also admitted.

(2.) COMPLAINANT was examined as examined as P. W. 1. He has deposed before the Court that on 24/02/1997 when he was present in the house, he heard a loud sound and by the time he came out, people had gathered on the spot. At that time, complainant had noticed that one boy was knocked down from the bus and that the bus had also dashed against rickshaw and had caused damage for about Rs. 5000/ -. He had identified the driver before the Court. In the cross -examination, he had admitted that when he came out of the house, the boy was already taken to the hospital and he had not actually seen the bus knocking down the boy. He had seen the bus standing on the spot. It can be therefore inferred that complainant has not an eye witness to the incident of the bus knocking down the boy. He has admitted in the cross examination that he had not given the name of the driver in the F.I.R., however, he is not aware as to who had mentioned the name of the driver. Learned Magistrate has only considered the aspect that the accused was identified in the Court and the said identification amounts to substantive evidence.

(3.) P . W. 3 Nanasaheb Pawar happens to be unfortunate father of the child. He has deposed before the Court that accused had parked his bus near the playground and the children were playing in the close by vicinity. He deposed before the Court that some person started the said vehicle and the said bus started moving in reverse direction and his minor son Ajay was crushed in between the stone and the tire of the bus. He has further deposed that accused had come to the spot after about 10 to 20 minutes of the accident. It is pertinent to note that witness was cross -examined. He had not stated anything about the applicant of hand brakes in his statement. He had learnt that accused was the bus driver. Witness has not identified the accused before the Court.