Criminal Revision Application No.9 of 2005

4th December, 2009

Petitioner Counsel: Shri. FIRDOS MIRZA
Respondent Counsel: Smt. R. A. WASNIK

Cases Cited:
Madhukar Gaurishankar Swami Vs. State of Maharashtra, 2007 ALL MR (Cri) 1947 [Para 9]
M. H. Lokre Vs. State of Maharashtra, AIR 1972 SC 221 [Para 9]
Chandreshwar Sharma Vs. State of Bihar, (2000)9 SCC 245 [Para 10]

JUDGMENT

JUDGMENT :- This revision is directed against judgment of the learned Sessions Judge, Buldana in Criminal Appeal No.84 of 2003, whereby the learned Judge maintained applicant's conviction for the offence punishable under Section 304-A of the Penal Code and Sections 179 and 66/192-A of the Motor Vehicles Act and also maintained the sentences imposed upon the applicant.

2. The tragic facts, which led to prosecution and conviction of the applicant, are as under :

On 05.06.1997 Police Inspector Pawar, along with Police Party, was checking vehicles on Buldana-Chikhali road for finding out if there was any unlawful transportation of passengers. P.I. Pawar tried to stop the bus driven by the applicant which was coming from Chikhali side and proceeding towards Buldana. Since the applicant did not stop his bus P.I. Pawar moved along the road. It was the prosecution case that instead of stopping the bus the applicant gave a dash to P.I. Pawar who was thrown off the road on babool tree by the side of the road. P.I. Pawar was seriously injured and succumbed to his injuries. The applicant stopped his vehicle some distance away from the spot and was apprehended.

3. On the report by P.S.I. Ali offence was registered and investigation commenced. After inquest, dead body of P.I. Pawar was sent for post-mortem examination, which revealed that P.I. Pawar had died as a result of intra cranial and thoracic hemorrhage leading to hemorrhagic shock. There were several fractures on the head as well as the ribs. The police also drew panchanama of spot, recorded statements of witnesses and on completion of investigation sent charge-sheet to learned Judicial Magistrate First Class, Chikhali.

4. Since the applicant pleaded not guilty to the charge for the offence punishable under Section 304-A of the Penal Code and 64 read with 192 and 179 of the Motor Vehicles Act, he was put on trial at which the prosecution examined in all six witnesses. After considering the evidence of these witnesses, the learned Magistrate convicted the applicant of the offence punishable under Section 304-A of the Penal Code and sentenced him to suffer rigorous imprisonment for two years and pay a fine of rupees two thousand or in default suffer simple imprisonment for further period of three months for the offence punishable under Section 179 of the Motor Vehicles Act. He was sentenced to pay a fine of rupees five hundred or in default undergo simple imprisonment for ten days. Aggrieved thereby the applicant preferred an appeal before the Court of Sessions at Buldana, which dismissed his appeal. This is how the applicant is before this Court.

5. I have heard, learned Advocate Shri. Mirza for the applicant and learned Additional Public Prosecutor Ms. Wasnik for the State.

6. The learned counsel for the applicant submitted that the applicant was not at all responsible for the mishap as Police Inspector Pawar had suddenly come in front of the bus and therefore, suffered a dash. He submitted that it was not the case, as was sought to be made out by the prosecution witnesses, that P.I. Pawar was by the side of the road but had in fact came in the centre of the road. Therefore, according to him, the learned Magistrate as well as learned Sessions Judge should have seen that the mishap occurred on account of sudden movement of P.I. Pawar and not on account of negligent driving by the applicant. The learned Additional Public Prosecutor seriously contested this contention.

7. With the help of both the learned counsel I have gone through the record of the trial Court. P.W.1 Ramdas is panch at spot panchanama, which was proved by him at Exh.21. This shows that there were some speed breakers near the spot. Therefore, ordinarily the applicant should have controlled his vehicle. Panchanama at Exh.21, however, shows that the victim was possibly standing at the centre of 10 ft. road and signaling applicants vehicle to stop. P.W.2 P.S.I. Yusuf Mansub Ali was in the party, which accompanied P.I. Pawar. He, too, stated that though signal was given to stop the luxury bus, driven by the applicant, the applicant did not stop the bus and it gave dash to P.I. Pawar. Cross-examination as regards, whether the witness ought to have been at the spot is irrelevant for finding out as to how the mishap occurred. The remaining paragraphs of the cross-examination do not show that the witness had either not seen the incident or that the accident occurred due to victim's negligence. Though it was sought to be suggested to the witness that the road turned before approaching the spot, he categorically stated that there was no turn from Jamwadi to Chikhali and that the road turns only between Jamwadi and Buldana. It may be recalled that the vehicle driven by applicant was coming from Chikhali and proceeding towards Buldana and the incident occurred at Jamwadi. Thus, there was absolutely no turn or bend on the road which could have prevented the applicant from noticing a Police Officer in uniform on road. Even if it is taken that P.I. Pawar was actually standing in the middle of the road, as rightly pointed out by the learned Additional Public Prosecutor, a suggestion made in cross-examination of P.W.3 Police Constable Pawar nails the applicant. It was suggested to the witness in paragraph 4 of the cross-examination that the luxury bus, driven by the applicant, was not prepared to stop, Pawar started to cross the road and in hurry of getting to stop the luxury bus Pawar himself dashed against the bus. Thus, according to the applicant himself, even after seeing the Police Officer signaling the bus to stop, he was not prepared to stop the bus and dashed against the officer who was attempting to stop the bus. The learned Additional Public Prosecutor rightly pointed out that failure of P.W.4 Urmila Bhanushali to state as to how the accident occurred would not matter because of the suggestion made by the defence to P.W.3 P.C. Vilas Pawar. P.W.5 had witnessed inquest panchanama. P.W.6 was a passenger in luxury bus, which had already been stopped, and stated that he had not seen the accident, which is not improbable. Considering this state of defence, it cannot be said that the learned Magistrate or the learned Sessions Judge erred in concluding that the mishap occurred on account of rash and negligent act of the applicant and that the mishap led to death of P.I. Pawar.

8. As regards other offences, namely, disobedience to the signal given by the Police Officer, the contention of the learned counsel for the applicant that the officer had no business to be on duty at that place and therefore, no business to give such a signal, has to be rejected. Whether the officer was on duty, or was authorized to give signal to stop, could not have been known by the applicant while driving the bus. The officer had given a signal to stop and the applicant had not stopped the bus, therefore, the offence punishable under Section 179 of the Motor Vehicles Act was complete. As regard carriage of passengers in the bus no serious dispute has been raised and it is not necessary to go into that aspect of the matter. In view of this, it has to be held that the courts below had rightly concluded that the applicant was responsible for the mishap.

9. The learned counsel for the applicant submitted that merely because the applicants bus dashed against P.I. Pawar it would not follow that the applicant was guilty of offence punishable under Section 304-A of the Penal Code and for this purpose sought to place reliance on judgment of this Court in Madhukar Gaurishankar Swami Vs. State of Maharashtra, reported at 2007 ALL MR (Cri) 1947. In that case, a passenger who had got down from another truck coming from opposite side had suddenly crossed the road and was crushed beneath rear wheel of the vehicle driven by the accused. Such are not the facts of the present case. Here, P.I. Pawar has not been dashed by the rear wheel or rear side of the vehicle but by the front side of applicants bus. Reliance on judgment of the Supreme Court in M. H. Lokre Vs. State of Maharashtra, reported at AIR 1972 SC 221 is equally misplaced, since, in that case, it was observed that a pedestrian suddenly crossing the road without taking note of the approaching bus would make it impossible for the driver to be aware of such a pedestrian and could not avoid the accident, however, slowly he may be driving. Again such are not the facts of the present case. Here, suggestion to P.W.4 P.C. Vilas Pawar would specifically show that the applicant had not cared to stop the bus even on noticing signal given by P.I. Pawar who was Police Officer in uniform. Therefore, there was no question of the applicant not having noticed the pedestrian on road.

10. The learned counsel for the applicant next submitted that in any case the applicant is first offender and was just 27 years in age at the time of the incident. He submitted that it was obligatory on the part of the learned Magistrate to consider whether the applicant would be given benefit of provisions of Section 360 of the Code of Criminal Procedure or the Probation of Offenders Act. Relying on a judgment of the Supreme Court in Chandreshwar Sharma Vs. State of Bihar, reported at (2000)9 SCC 245 the learned counsel submitted that the case may be remitted back to the learned Magistrate for considering this aspect of the matter.

11. The learned Additional Public Prosecutor vehemently opposed such a course submitting that this would keep the applicant away from just desserts even though twelve years have already passed after the mishap occurred. She submitted that this is not the case in which the applicant would be entitled to benefit of probation. According to her, as the law then stood, the applicant was prosecuted for the offence punishable under Section 304-A of the Penal Code but actually the applicant had given dash to a Police Officer who was trying to stop the vehicle and therefore, ought to have been prosecuted and tried for an aggravated assault, if not murder. Therefore, according to her, this is not a case where benefit of probation could be extended to the applicant. The contention of the learned Additional Public Prosecutor is unexceptionable and therefore, there is no question of considering the applicant for being dealt with under the Probation of Offenders Act or under Section 360 of the Code of Criminal Procedure in spite of his young age or absence of previous criminal history. It is true that the sentence imposed i.e. rigorous imprisonment for two years, was maximum prescribed for the offence punishable under Section 304-A of the Penal Code. However, in the circumstances, recounted above, it cannot be said that the sentence calls for any interference.

12. The revision application is, therefore, dismissed. If the applicant does not surrender to his bail within a period of six weeks, the learned Magistrate shall take steps to have the applicant arrested and committed to prison for serving the sentence.

Application dismissed.