VIJAY NAMDEORAO KUTE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard Shri Anil Mardikar, advocate for the applicant and Shri C. N. Adgokar, A. P. P. for State - non-applicant.

(2.) By this revision application under section 401 read with section 397 of criminal Procedure Code, the applicant challenges the judgment of the Ad-hoc additional Sessions Judge, Washim in criminal Appeal No. 29/2001 by which he maintained the judgment and order of conviction and sentence passed by the judicial Magistrate, First Class, Karanja in Summary Criminal Case No. 1035/1998, by which the revision applicant was held guilty of the offence punishable under section 304-A of the Indian penal Code and was sentenced to suffer R. I. for six months and to pay fine of Rs. 500/-, in default to suffer S. I. for 2 months.

(3.) The facts leading to the prosecution of the revision applicant were that, on 26-8-1996, at about 10. 40 a. m. at village Kamargaon, on the road near S. T. Stand, near Public Urinal, he was taking his Tractor No. MTR-457 in the reverse direction. At that time deceased Laxmibai wd/o rodaji Thakre aged 85 years came out of Public Urinal and his tractor while taking the same in reverse gave dash to her. Because of that dash she fell down and came under the rear wheel of the trolley of the tractor. She suffered bleeding injuries and succumbed to those injuries in the hospital. Her autopsy was performed. Head constable Sahadeo prabhe of Outpost Kamargaon sent report to p. S. O. Dhanaj which was registered as Crime No. 81/1996 for the offence under section 304-A of the Indian Penal code. After due investigation, the revision applicant was charge-sheeted. 3-A. During the trial held by the learned judicial Magistrate First Class, two witnesses were examined. P. W. 1 Awadhoot panzade was the witness to the spot panchnama. He however, did not support the prosecution case. P. W. 2 digambar Khanduji Gangatre was the eye witness to the incident. He supported the prosecution case. Learned Trial Judge found that though the remaining witnesses including Investigating Officer were not examined, it was proved on the strength of the evidence of the P. W. 2 digambar that the revision applicant did not exercise the care that was required in taking the tractor in reverse and while doing so negligently he dashed said laxmibai which caused her death. It is also held by him that it was necessary for the revision applicant - accused to take proper care by taking services of some person as he was taking the tractor -trolley in reverse. He found that the defence of the revision applicant that the deceased had herself fell on the ground was incorrect, so also she had come suddenly out of public urinal, therefore, there was no opportunity for the revision applicant to notice her. It is held by him that as revision applicant did not exercise proper care in taking tractor in reverse, had committed breach of his positive duty. Merely because he had blown horn and deceased got frightened on seeing the tractor, it cannot be held that the revision applicant is not responsible for the death of the deceased. He therefore, found that Revision applicant was guilty of the offence under section 304 A of the Indian Penal Code. He further observed that the revision applicant is the first offender and he was taking lenient view of the matter, and so he awarded sentence of six months to him. This judgment of conviction and sentence was assailed by revision applicant in criminal Appeal No. 29/2001 before additional Sessions Judge, Washim. Learned Additional Sessions Judge; after elaborate consideration of the submissions made by learned counsel for the revision applicant i. e. appellant therein, held that the judgment of the learned trial Judge was correct and therefore, he dismissed the appeal. These judgments are challenged in this revision.