SARJERAO MARUTI GORAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE present applicant came to be arrested in regard to an incident of alleged negligent driving which took place on 9.5.1990 on the BEST bus route No.171, near about Antop Hill. The applicant was prosecuted in the Criminal Case No.982/P/1993 for offences under Section 279, 337, 338, 304A of the Indian Penal Code and Section 184 of the Motor Vehicles Act. The applicant was convicted by the learned Metropolitan Magistrate, 45th Court, Kurla, Mumbai, hereinafter referred to as the learned trial Judge, by his Order dated 27th October, 1997. The applicant was convicted under Section 337, 338, 279 and 304A of the Indian Penal Code and sentence of different description came to be imposed upon the applicant with regard to each of the conviction. Being aggrieved by the judgment dated 27th October, 1997, the applicant filed Criminal Appeal No.149 of 1997 in the Sessions Court at Gr. Bombay. The learned First Addl. Principal Judge and Addl. Sessions Judge, for Gr. Bombay, hereinafter referred to as the learned Appellate Court, dismissed the appeal and confirmed the sentence of the applicant in regard to the case No.982/P/1993. The applicant herein has filed this revision being aggrieved by the judgment delivered by the learned trial Judge as well as by the learned Appellate Court.

(2.) I have with the assistance of Learned Advocate Mr. Machindra Patil, perused the evidence of the various witnesses who came to be examined during the course of trial.

(3.) AFTER having gone through the evidence on record, I am inclined to observe that the prosecution has not been able to prove the negligence on the part of the applicant beyond the shadow of reasonable doubt. It is required to be mentioned that the witness P.W.4 did not undergo full cross examination and hence the evidence of P.W.4 cannot be read. Witness, Conductor Yeshwant, P.W.5, in terms stated that the bus was plying at medium speed and if that is the word coming from the conductor who has experience of travelling in bus as a part of the job, the said word is to be given appropriate weightage to hold that the bus was plying at medium speed. The driver of the bus No.9 has not specifically stated about the speed of the bus and he has stated that the bus turned turtle. In the next sentence he says that his bus had just touched the said bus and that is how the dash took place. He also says that he saw the bus after it had turtled. This will mean that Shivaji, P.W.6 nowhere specifically means that the applicant was negligent. Prabhakar-P.W.1 nodoubt states that the bus was being driven in a fast speed and he further says that it tilted on the road side. This witness in the cross examination has admitted that the road is having heavy traffic. This could be considered to mean that there was no scope for the applicant to drive the vehicle in a fast speed. This P.W.1 has further stated that he could not tell whether the accident occured as the driver of the bus i.e. of route No.171 made an attempt to take the vehicle in front of the other bus. This answer came in the way of earlier answer given by him that he could not see the front portion before the impact. In any case, if there exist a situation, namely to avoid the impact on the person who is on the road such a situation could as well be seen and appreciated by the bus driver who is the best person to attend to the situation at site and not the passenger who is sitting behind the driver, may be in the 5th or 6th row and in the present case this witness Prabhakar was sitting on the 5th or 6th row from the right side on the upper deck. In the substance, the evidence of P.W.1 Prabhakar is not sufficient to convict the applicant towards the allegations of rash and negligent driving. Prakash, P.W.2 the person travelling on the lower deck states that the bus tilted on one side and he received injuries to his collar bone. There is no cross examination to this witness, naturally because this witness does not say a word about the speed. Abdul, P.W.3 another passenger, in the examination in chief states that the bus was in speed and the driver was not having control over the bus. This version does not appear in the police statement and this witness had to admit about the absence of such version in the police statement. Though technically this ommission is not proved, it is pertinent to note that this witness admits that the statement was not read over to him after it was recorded. In the substance, the evidence of this witness also is not of such magnitude to come to the conclusion that the driver of the bus was negligent.