Bombay High Court
The State Of Maharashtra vs Ramashankar S/O. Bhura Rajbhat on 25 June, 2012
Author: A.P. Bhangale
Bench: A.P. Bhangale
apeal166.00.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.166 OF 2000
APPELLANT : The State of Maharashtra,
through PSO, Police Station,
Chandrapur, Tah. & District
Chandrapur.
// VERSUS //
RESPONDENT : Ramashankar s/o. Bhura Rajbhat,
Aged about 26 yrs., Occ. Labour.
r/o. Rayyatwari Colliery, Chandrapur,
Tah. and District Chandrapur.
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Mr.P.V.Bhoyar, A.P.P. for Appellant/State.
Ms T.H.Udeshi, Adv. (appointed) for Respondent.
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CORAM : A.P. BHANGALE, J.
DATED : 25th June, 2012.
ORAL JUDGMENT :
1. The State of Maharashtra has challenged validity and legality of the judgment and order dt. 13.3.2000 passed in Criminal Appeal No.9 of 1997 whereby the learned Sessions Judge, Chandrapur was pleased to set aside ::: Downloaded on - 09/06/2013 18:42:05 ::: apeal166.00.odt 2 conviction of the respondent/accused for the offences punishable under Sections 304-A, 279 and 337 of the Indian Penal Code.
2. The facts, in brief, are as under :
It appears to be the case of prosecution that, on 22nd May, 1995, at about 10.30 to 11.00 p.m. an accident occurred on Pathanpura road in Chandrapur city when, according to the prosecution, a scooter rider with his wife and two children - as pillion riders were travelling by a scooter, which was dashed by a truck driven by the respondent/accused. Result of the said dash was that the wife of the scooter rider and his two children died as the rear side wheel of the truck ran over them. It is alleged that, due to the accident, the truck driver ran away. However, he was apprehended subsequently. The incident was reported to Police Station and the offence was registered under Sections 304-A, 279 and 337 of the Indian Penal Code. The respondent/accused was tried before the learned Judicial Magistrate, First Class, Chandrapur, who was pleased to convict the respondent/accused for the offences punishable under Sections 279, 304-A and 337 of the Indian Penal Code and sentence him to suffer rigorous imprisonment for six months and to pay a fine in the sum of Rs.1,000/- vide judgment and order dt.6.2.1997 passed in Summary Criminal Case No.4149 of 1995, decided on 6.2.1997.::: Downloaded on - 09/06/2013 18:42:05 ::: apeal166.00.odt 3
3. It appears that the prosecution had placed reliance upon the evidence of 16 witnesses to support the First Information Report (Exh.33). It also appears that, in the course of investigation, panchanama regarding scene of offence was drawn over dead bodies under Inquest panchanamas Exhs.44 to
46. The offending truck was seized under panchanama Exh.49. The scooter was seized under panchanama Exh.48. Prosecution has placed reliance upon the post mortem notes Exhs.55, 56 and 57. The accused denied the prosecution case in his statement under Section 313 of the Code of Criminal Prosecution.
4. The learned trial Magistrate believed that the truck was driven by the accused rashly and negligently. While, the defence is that the incident had occurred due to slip of the scooter from the heap of sand and stones near the spot of incident. According to the learned Advocate for respondent, it was overlooked by the learned trial Magistrate. According to the learned trial Magistrate, there was sufficient documentary evidence coupled with the oral evidence of prosecution witnesses to draw the conclusion that death of the injured occurred due to running over of the rear wheel of the truck over them.
The judgment and order of conviction by the learned trial Magistrate was challenged before the learned Sessions Judge, Chandrapur in Criminal Appeal ::: Downloaded on - 09/06/2013 18:42:05 ::: apeal166.00.odt 4 No.9 of 1997.
5. Mr.P.V.Bhoyar, learned A.P.P. submitted that, by the impugned judgment and order, the learned Sessions Judge wrongly granted benefit of doubt to the accused and considering the facts and circumstances, the learned Sessions Judge ought to have upheld the judgment and order passed by the trial Magistrate.
6. On the other hand, Ms T.H.Udeshi, learned Advocate for the respondent, in support of the impugned judgment and order, submitted that the accused was not really put on notice regarding the particulars of accusations made against him. She further submitted that the particulars of offences alleged against the respondent were not explained to him and thereby the mandatory procedural provision was violated by the learned trial Magistrate. It is further submitted that, even otherwise, on merits also, the material fact brought on record regarding existence of a heap of sand and stones near the alleged place of incident and the defence version that due to the heap of sand and stones the scooter had slipped and met with an unfortunate accident indicated that the respondent/accused should not have been held liable for the offences alleged.
::: Downloaded on - 09/06/2013 18:42:05 ::: apeal166.00.odt 57. In the light of these submissions and after perusal of the record and proceedings, it appears that the learned trial Magistrate had tried the case as a Summary Criminal Case. The record indicates that the particulars of the offences complained of were stated thus :
" That on or about 22.5.1995, at about 22.45 hrs., near Jod deow, Patanpura Ward, Chandrapur, were found driving your vehicle being No.MH-34/A-86 so rashly and negligently and caused death of the wife and two children of the complainant and also caused injury to the complainant and also damaged the scooter of the complainant and thereby committed an offence punishable under Sections 304-A, 337 and 427 of the Indian Penal Code. "
8. Looking to these slipshod particulars, the learned Sessions Judge appears to have observed thus :
" When 3 different offences are alleged against present accused, each and every allegation should have been explained to him. Learned C.J.M., however, acted in somewhat perfunctory manner and recorded composite plea.::: Downloaded on - 09/06/2013 18:42:05 ::: apeal166.00.odt 6
The trial Court also while discussing evidence in this case did not take pain to see whether act committed by accused comes under Sections 279, 304-A by separate discussions. At the time of passing final order also common conviction order is passed......... "
9. I think that no fault can be found with these observations made by the learned Sessions Judge. It is elementary principle of procedural law that every charge shall state the offence with which the accused is charged. Section 211 of the Code of Criminal Procedure mentions requirement in respect of contents of charge. It is necessary for the trial Judge to mention necessary particulars as to offences with which the accused is charged specifically so as to put the accused on notice in respect of the matter with which he is charged.
Therefore, it is necessary that the penal section of law constituting the offence ought to be mentioned distinctly in the particulars of the charge. The particulars must also be complete regarding time, place and date of the alleged offence and the person against whom the offence was committed so as to give reasonably sufficient notice to the accused in respect of the charges which he is facing in the trial. Thus, the trial Court is required to communicate to the accused the particulars of the offences with which he is to be tried so that he gets a real opportunity to plead guilty or otherwise and to adopt the defence as ::: Downloaded on - 09/06/2013 18:42:05 ::: apeal166.00.odt 7 desired by him, although it is not necessary for the trial Court to frame a formal charge in the cases which are tried in a summary manner. The Court is required to follow the procedure, as required in the trial of summary case and furthermore, it is also required to record the plea of the accused and his examination, if any. Under these circumstances, the requirement to communicate the particulars of the offences to the accused cannot be undermined and which requirement is vital and important in a criminal trial.
Violation of mandatory procedural provision in this regard may come to the advantage of the defence as has happened in the present case.
10. Looking to the nature of evidence on record in the present case, it appears that Madhukar Tannirwar (PW-1) in his examination-in-chief itself stated that he does not know anything about the incident. Shyam Tannirwar (PW-2) came out of his house after hearing the noise and was disowned by the prosecution. Arun Ghate (PW-3) also stated on oath that he does not know anything about the incident. Wasudeo Bhute (PW-4) in his examination-in-chief itself stated that, on hearing noise of people, he left TV and went out of the house. He had not seen the accident. Ramesh Khanke (PW-6) admitted that his statement was not recorded by police. According to him, the incident took place at about 10.00 p.m. in summer season. Akash Goje (PW-7) stated in his examination-in-chief itself that he had not seen the incident. Sudhakar Goje ::: Downloaded on - 09/06/2013 18:42:05 ::: apeal166.00.odt 8 (PW-8) also is unable to say as to what had actually happened. Deorao Ragit (PW-9) stated that the accident did not occur in his presence. Ravindra Kamble (PW-10) stated that the incident occurred at about 11.00 p.m. and he was unable to tell about the result of the accident. Sunil Bhoyar (PW-11) could not tell about the accident. According to him, the incident took place before one year - prior to recording of his deposition. Bandu @ Hemraj Khartad (PW-12) gave time of accident as 10.00 p.m. According to him, due to high speed of the truck, the scooter which was in front of the truck was dashed and the wife and one girl on the scooter were killed on the spot. Witness Bandu appears to be brother of the first informant Hemraj and also appears to have admitted that there was a heap of stone by the side of the road. The first informant Hemdas Dhote was examined as PW-5, who deposed that the truck was coming from his back side in a high speed and it was driven without light and horn and after giving dash, the truck did not stop and went away. He further deposed that, due to dash, the scooter fell down from the heap of sand and he fell down on the right side. Back wheel of the truck ran over his wife and two kids who died on the spot. PW-5 also admitted that there was a heap of sand and stones near the place of incident, although he denied the suggestion that the scooter had slipped due to said heap of sand. Vinod Pimpalshende (PW-15) deposed that he was standing in front of a shop. One scooter was going towards Gandhi Chowk from Pathanpura and the truck was coming to Gandhi Chowk from ::: Downloaded on - 09/06/2013 18:42:05 ::: apeal166.00.odt 9 Pathanpura. The truck dashed to the scooter, which fell on the ground and one lady and a girl were ran over by the truck. The truck did not stop and went away. It was contended by the A.P.P. that this witness has corroborated the evidence of main witness Hemraj. However, this witness also admits that there a was heap of stone and sand on the road, in front of the Kirana shop. He is unable to tell as to how the scooter fell. He also admitted that the scooter was lying near the heap of sand. Looking to the evidence of main witness in respect of the incident, therefore, there appears common thread of evidence regarding existence of heap of sand just nearby the place of incident. One cannot, therefore, overlook the possibility that the scooter might have skidded due to heap of sand, as a result of which the pillion riders of the scooter came under the rear wheel of the offending truck.
11. In the result, therefore, it cannot be said that the benefit of doubt to the truck driver was wrongly granted by the Appellate Court as a result of scrutiny of evidence of witnesses concerned as one cannot overlook the probability of the scooter skidding from the heap of sand and stones by the side of road; particularly, when the Appellate Court also noted that there was no damage to the scooter except to the clutch liver and minor damage to the mirror fixed to the handle of the scooter and there was no damage to the hind portion of the scooter or front head light of the truck or any other portion of the ::: Downloaded on - 09/06/2013 18:42:05 ::: apeal166.00.odt 10 driver side of the truck to indicate that there was dash to the scooter by the truck. Under these circumstances, the probability of accident as a result of skidding of the scooter while it was passing through the heap of sand and stones, as suggested by the prosecution witnesses, cannot be overlooked.
12. The learned Sessions Judge has observed in his judgment that when three different offences are alleged against the accused, each and every allegation should have been explained to him separately and a composite plea should not have been prepared. The learned A.P.P. submits that the Court has to keep in mind the ingredients of the offence and the accused can even be punished for a lesser or graver offence than the offence with which he is charged provided the requisite ingredients are satisfied and hence, when the ingredients of the offence are covered in particulars compositely, it does not make any difference whether the plea is recorded separately or compositely. In support of his arguments, the learned A.P.P. placed reliance on the ruling reported in 2012 ALL MR (Cri) 1303 (S.C.), Rafiq Ahmed @ Rafi .vs. State of U.P. In the said case, the accused therein was charged by the trial Court under Sections 396 and 201 of the Indian Penal Code, but sentenced to suffer rigorous imprisonment for life under Section 302 of the Indian Penal Code and seven years rigorous imprisonment under Section 201 of the Indian Penal Code.
It was argued before the Apex Court that the appellant was charged for an ::: Downloaded on - 09/06/2013 18:42:05 ::: apeal166.00.odt 11 offence under Section 396 of the Indian Penal Code and without reformulation/alteration of the charge, the appellant has been convicted for an offence under Section 302 of the Indian Penal Code. This, according to the learned Counsel, has deprived the appellant of a fair opportunity of defence and has caused him serious prejudice. Section 302 of the Indian Penal Code is a graver offence than an offence punishable under Section 397 of the Indian Penal Code and as such, the entire trial and conviction of the appellant is vitiated in law. However, it was held by the Apex Court thus :
" The circumstances which constitute an offence under Section 302 were literally put to him, as Section 302 IPC itself is an integral part of an offence punishable under Section 396 IPC. The learned counsel appearing for the appellant has not been able to demonstrate any prejudice which the appellant has suffered in his right to defence, fair trial and in relation to the case of the prosecution. Once the appellant has not suffered any prejudice, much less a serious prejudice, then the conviction of the appellant under Section 302 IPC cannot be set aside merely for want of framing of a specific/alternate charge for an offence punishable under Section 302 IPC. "
13. Considering the arguments putforth by the learned A.P.P. and the observations made by the Apex Court in the ruling cited supra, I am of the opinion that though the Sessions Court observed in its judgment that each and ::: Downloaded on - 09/06/2013 18:42:05 ::: apeal166.00.odt 12 every allegation should have been explained to the accused separately instead of preparing composite plea and the trial Court should have seen, while discussing evidence, as to whether the act committed by the accused comes under sections 279 or 304-A of the Indian Penal Code, it is worth mentioning here that the Sessions Judge set aside the conviction of the accused herein not only based upon the loopholes in framing of particulars of the offences, but the accused was set free giving him benefit of doubt in the facts and circumstances established. Therefore, the ruling in the case of Rafiq Ahmed @ Rafi (cited supra) would not be helpful to the appellant/State because it is essential in the interest of fair trial that the ingredients of the offences alleged against the accused are to be mentioned properly in the particulars/charge framed against the accused and as it is clear from the record of the present case - the ingredients of the offences alleged against the accused herein were not distinctly and rightly mentioned in the particulars framed by the trial Magistrate. Instead, the trial Magistrate prepared composite and omnibus accusations, which was unfair to the accused since no person can be deprived of his personal liberty except in accordance with the procedure established by law, as required under Article 21 of the Constitution of India.
14. For all the above reasons, therefore, I do not find any fault with the impugned judgment and order passed by the Appellate Court in the appeal ::: Downloaded on - 09/06/2013 18:42:05 ::: apeal166.00.odt 13 against acquittal order. Even otherwise, unless the impugned judgment is perverse or wholly unreasonable, there would be no justification to interfere with the order of acquittal. We find no merit in this Criminal Appeal. Hence, the same is dismissed.
Fees of Ms T.H.Udeshi, Adv. (appointed) for the respondent is quantified at Rs.2,500/- to be paid by Legal Aid Committee.
JUDGE jais ::: Downloaded on - 09/06/2013 18:42:05 :::