CRIMINAL REVISION APPLICATION NO. 166 OF 2012

29th October 2018

Petitioner Counsel: S. V. Sirpurkar
Respondent Counsel: Shri S. S. Doifode

Cases Cited :

JUDGEMENT

1. This revision is against the judgment of trial Court and also the judgment of first appellate Court. The applicant was tried for the offences punishable under Sections 279, 337, 338, 304A and 427 of the Indian Penal Code. Learned Judicial Magistrate First Class, Khamgaon by judgment dated 1242006 convicted the applicant for the offence punishable under Sections 279, 337, 338 and 304A of the Indian Penal Code and sentenced him as follows :
(a) For the offence punishable under Section 279 of the Indian Penal Code, to suffer Rigorous Imprisonment for one month, and to pay a fine of Rs. 100/indefault to suffer Simple Imprisonment of 3 days.
(b) For the offence punishable under Section 337 of the Indian Penal Code, to suffer Rigorous Imprisonment for one month and to pay fine of Rs. 100/in default to suffer Simple Imprisonment of three days.
(c) For the offence punishable under Section 338 of the Indian Penal Code to suffer Rigorous Imprisonment of 06 months and to pay fine of Rs. 200/indefault to suffer Simple Imprisonment of 6 days.
(d) For the offence punishable under Section 304A of the Indian Penal Code, to suffer Rigorous Imprisonment for one year and to pay fine of Rs. 200/in default to suffer Simple Imprisonment for 6 days.
Against the judgment of conviction, applicant preferred appeal before the Sessions Court, Khamgaon. Learned Additional Sessions Judge, Khamgaon vide judgment dated 22-10-2012 dismissed the said appeal and confirmed the judgment of conviction passed by learned Judicial Magistrate First Class, Khamgaon.

2. The case of the prosecution in short against the applicant is as under :
(i) On 11-2-2003 at about 5.00 p.m., taxi was driven by deceased Gopal Manohar Ghumare. In the said taxi, he was carrying 15 passengers. Said taxi was proceeding from Nandura to Khamgaon. One truck No. MTT-6574 was proceeding from Khamgaon to Nandura and there was collusion between these two vehicles near Labela Hotel. Truck bearing No. MTT-6574 was driven by the present applicant. Said truck was in high speed and dashed to taxi. Two passengers and taxi driver died on the spot. PSI Shri Bayaskar went to the spot of incident and prepared spot panchanama in presence of panchas. He himself lodged report, Exhibit 41 and registered crime vide printed FIR, Exhibit 42. PSI Shri Bayaskar investigated crime and after complete investigation, filed chargesheet before the Judicial Magistrate First Class, Khamgaon.
(ii) Charge was framed by the Judicial Magistrate First Class at Exhibit 2 for the offences punishable under Sections 279, 337, 338, 304-A and 427 of the Indian Penal Code against the applicant. Prosecution has examined 10 witnesses. After hearing the prosecution and defence, learned trial Court convicted the accused/applicant as stated above.

3. Heard learned Counsel Shri Sirpurkar for the applicant. He has pointed out evidence of P.W. 5 Sk. Sattar Sk. Hasan, P.W. 6 Talimunnisa Sharifkha and P.W. 7 Khairunbee Yusufkha and submitted that their evidence clearly show that there was collusion in between taxi and truck. There is no specific evidence to show that accident took place due to rash and negligent driving of applicant himself only. On the other hand, evidence shows that taxi driver was also driving his taxi rashly and negligently. It is a case of contributory negligence on the part of taxi driver and truck driver (accused/applicant), therefore, he cannot be held liable, hence, prayed to allow the revision and acquit the applicant for the offences charged against him.

4. Heard Shri Doifode, learned Additional Public Prosecutor for the State/nonapplicant. He has supported the impugned judgment and submitted that conviction recorded by the trial Court is perfectly legal and correct, hence, revision is liable to be dismissed.

5. Perused the evidence of P.W. 1 Nitesh Gawande. He has stated in his examinationinchief itself that there was collusion of truck and taxi near Labela Hotel.

6. P.W. 5 has specifically admitted in his crossexamination that 15 passengers were travelling in the taxi. He was on last seat in the taxi. Accident took place due to collusion of two vehicles. The speed of taxi was high. P.W. 6 has stated in his crossexamination that he was travelling in said taxi. More than 15 passengers were travelling in the taxi. Taxi was driven by its driver in high speed.

7. P.W. 7 has stated in his crossexamination that more than 15 passengers were travelling in the taxi. He was sitting in a middle seat of taxi. The truck was proceeding towards right side of Nandura Khamgaon Road.

8. Evidence of P.W. 1 clearly shows that there was collusion of two vehicles i.e. truck driven by the applicant and the taxi driven by deceased Gopal. Admission of P.W. 5 and P.W. 6 clearly show that taxi driver was driving taxi in a high speed. He was carrying more than 15 passengers in his taxi. There was collusion of two vehicles and, therefore, accident took place. From the evidence of prosecution witnesses, it is clear that taxi driver and truck driver (applicant), both were driving their vehicles in high speed and in rash and negligent manner. It appears that deceased taxi driver was driving his vehicle in high speed. There is no evidence to show that the applicant was only responsible for the accident. Learned trial Court not taken into consideration the material evidence of P.W. 1, P.W. 5, P.W. 6 and P.W. 7. P.W. 5 and P.W. 6 have specifically admitted that taxi was carrying more than 15 passengers. Driver of taxi was driving his vehicle in a high speed. P.W. 6 also given the same admissions. Therefore, it is doubtful as to whether the applicant was the only person who was responsible for the said accident.

9. It is settled principle of law that when there is any doubt created in the evidence of prosecution then benefit of doubt should go in favour of accused. Evidence on record clearly show that it is not clear because of exclusive fault of accused/applicant, accident took place. Learned trial Court as well as first appellate Court not taken into consideration the material evidence on record. Hence, following order.
ORDER
(i) The revision is allowed.
(ii) Impugned judgments are hereby quashed and set aside.
(iii) The applicant is acquitted of the offences charged against him.
(iv) Fine amount, if paid, be refunded to the applicant.
(v) R & P be sent back to the trial Court.