RAFIQKHAN HAMIDKHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal by the original accused against the order passed by the Presidency Magistrate convicting him of the offence under section 304 A of the Indian Penal Code and sentencing him to suffer R.I. for six months and to pay a fine of Rs. 1000/-, in default of payment of fine to suffer R.I. for three months. On the evening of October 23, 1972 the accused was driving his taxi on Lady Jamshedji Road with some passengers from North to South. THIS Road is divided in two parts by putting cement dividers at the centre of the road. The eastern track is meant for South bound vehicles and the Western track is ment for North bound traffic. The width of the eastern half is 9.2 meters, that is about 35 feet. Near the junction of Lady Jamshedji Road and Bhandar Galli, a pedestrain was knocked down by this taxi. The taxi was at the time being driven close to the central road divider. According to the prosecution, the accused was driving his vehicle in a rash and negligent manner and as a result of his rashness and negligence, he Dashed the pedestrain by the left side of his vehicle. It appears that the pedestrain whose name is not known sustained some injuries within a short time succumbed to the injuries. At the time of this impact, Chhotelal (P.W. 4) was sitting on the western footpath of this road, while Constable (P.W. 3) Buckle No. 15645/F was on duty at the junction of the aforesaid roads. They tried to remove the victim to the Sion Hospital but before the victim was admitted, he had already succumbed to the injuries. The said constable thereupon gave a phone message from Sion Hospital to Sub-Inspector Naik (P.W. 5) of Mahim Police Station. The Sub-Inspector then visited the Hospital, saw the injured and he recorded the statement of the constable. Then a panchanama of the scene of offence was drawn up. It was fund that the wind screen of the taxi was completely broken, there was a dent on the front side of the car and also on the front left-front of the taxi meter. On these facts the accused was prosecuted for committing the offence of causing the death of the said pedestrain by rash and negligent act punishable under section 304-A of the Indian Penal Code. The defence of the accused was one of denial. He denied that he was in any way rash or negligent. According to him, he was driving the vehicle at a moderate speed of 25 miles. When he approached the junction he noticed the pedestrain trying to cross the road and therefore he immediately applied brakes with great force with a view to avert collision with the pedestrain; but in spit of his efforts the pedestrain moved forward and dashed against vehicle. So according to him, this was merely an accident. The prosecution principally relied on the evidence of Chhotelal (P.W. 4) and the constable (P.W. 3). Chhotelal stated that while he was sitting on a cot on the western footpath of the road near this junction, he noticed this taxi coming from the northern side. According to him, the taxi was in a fast speed. According to him, the speed was at 40. He did not make it clear as to whether it was 40 miles or 40 kilometres. Assuming he meant to say that the speed was 40 miles per hour, it is difficult to see how the layman like this witness could determine the speed of the vehicle merely by looking at it. The constable also gave evidence that while he was standing at the aforesaid junction, this taxi came from south. THIS witness has not made any attempts to give the speed of the taxi, but stated that it was at fast speed and it knocked down the pedestrain. The fact that the pedestrain was knocked down is not at all in dispute. However, the question is whether for the knocking down of this pedestrain the accused was responsible, or in other words he was in any way rash and negligent in driving the vehicles. On this point, there is practically no evidence on the part of the prosecution to establish rashness or negligence on the part of the accused. Merely because a pedestrain has been fatally kocked down, it cannot be presumed that the driver of the vehicle was necessarily rash or negligent. That fact has to be proved by the prosecution as any other fact. The only circumstances on which much reliance was placed on behalf of the prosecution was that before the actual impact of the taxi with the pedestrain, as seem from the sketch plan drawn by the Investigating Officer, skid marks were visible over a distance of about 28 to 30 feet, and after the impact also, the vehicle went ahead over a distance of about 10 feet. Relying on this, it is urged by Mr. Damle, Hon. Police Prosecutor for the State, that since the accused was not able to bring the vehicle to a halt even by applying brakes from a distance of 30 feet, it must have been in great speed. But from this fact alone without any expert evidence on the point, it would be hazardous to draw such presumption about speed. The prosecution ought to have led expert evidence on this point and should have proved that if the vehicle could not be brought to a half even after covering a distance of 30 feet after applying brakes it must have been in great speed. To my mind, therefore, it appears that the evidence led by the prosecution does not satisfactorily establish rashness or negligence on the part of the accused. On the other hand, the fact that as soon as the pedestrain was seen crossing the vehicle, the accused tried to bring his vehicle to a half from a distance of 30 feet would go to show that he was careful enough, but in spite of the incident occurred. For these reasons, it appears to me that the order of conviction in the present case is unsustainable. The appeal is, therefore, allowed, the order of conviction and sentence is set aside and the appellant is acquitted of the charge levelled against him. Fine if already paid to be refunded to the accused. Bail-bound stands cancelled.