Bombay High Court
Vishwanath S/O. Kondiba Jinke vs The State Of Maharashtra on 12 June, 2020
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.29 OF 2020
WITH
CRIMINAL APPLICATION NO.509 OF 2020
Vishwanath Kondiba Jinke,
Age 44 yrs., Occ. Service
as S.T. Bus Driver,
R/o Golegaon, Tq. Loha,
Dist. Nanded.
At present r/o Kandhar,
Tq. Kandhar, Dist. Nanded.
... Applicant
... Versus ...
The State of Maharashtra
Through its In-charge officer,
Shivoor Police Station,
Tq. Vaijapur, Dist. Aurangabad.
... Respondent.
...
Mr. S.S. Gangakhedkar, Advocate h/f Mr. S.D. Munde, Advocate for applicant
Mr. P.G. Borade, APP for respondent
...
CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 25th FEBRUARY, 2020
PRONOUNCED ON : 12th JUNE, 2020
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ORDER :
1 Present revision application has been filed under Section 401 of the Code of Criminal Procedure, 1973 by the original accused challenging his conviction and confirmation thereof by the Appellate Court, for the offence punishable under Section 279, 304-A and 338 of the Indian Penal Code. The revision applicant stood prosecuted in Summary Criminal Case No.759/2008 before learned Judicial Magistrate First Class (Court No.3), Vaijapur. He was convicted on 27.07.2017. He preferred Criminal Appeal No.10/2017 before Additional Sessions Judge, Vaijapur, Dist. Aurangabad. The said appeal came to be dismissed on 04.02.2020.
2 In short the prosecution story was, that the present applicant- original accused is a bus driver employed with Maharashtra State Road Transport Corporation. He was driving bus bearing No.MH 20-D/7691 on 05.01.2008 on Vaijapur-Paithan road. When his bus reached near Kisan Vikas Ginning situated near Shivoor Bangla at about 18.45 hours, at that time, a truck was coming from opposite direction and the motorcycle driven by deceased Vikram Sambhaji Bhagwat was coming behind the truck. The motorcycle rider was successful in overtaking the truck, but then the bus dashed the motorcycle. One Balasaheb Kachru Suryawanshi was the pillion rider on the motorcycle. The driver as well as pillion rider of the motorcycle ::: Uploaded on - 12/06/2020 ::: Downloaded on - 13/06/2020 09:03:49 ::: 3 Cri.RevnAppln_29_2020 fell down and sustained injuries. They were shifted to hospital and the information about the said accident was given. On the basis of which, accident case No.2/2008 was registered and inquiry was started by PSI Gorakhnath Govindrao Misal, attached to Shivoor Police Station. During the course of the inquiry, he had conducted the spot panchnama with the help of two panchas and had recorded statements of witnesses. On the next day i.e. on 06.01.2008, Kranti Chowk Police Station, Aurangabad informed PSI Misal about death of Vikram Bhagwat while undergoing treatment. Therefore, the inquiry was started under Section 174 of Cr.P.C.. Further inquiry revealed, that the accused was driving the bus in high speed in rash as well as negligent manner. He had caused the said accident as well as damage to the vehicles. Other papers in the form of Post Mortem Report, Inquest Panchnama were received from the concerned Police Station from Aurangabad. PSI Misal, thereafter, lodged First Information Report on behalf of the State against the present revision applicant. On the basis of his First Information Report, offence vide Crime No.2/2008 was registered for the offence punishable under Section 304-A, 279, 338, 427 of the Indian Penal Code. Accused came to be arrested. After the completion of investigation charge sheet was filed.
3 After the accused appeared before the learned Magistrate, ::: Uploaded on - 12/06/2020 ::: Downloaded on - 13/06/2020 09:03:49 ::: 4 Cri.RevnAppln_29_2020 particulars of offence were framed and read over to the accused. He pleaded not guilty. Prosecution has led evidence. After the incriminating evidence was transpired, statement of accused under Section 313 of Cr.P.C. came to be recorded. After perusing the evidence on record and hearing both sides the learned Magistrate held that the offence has been proved against the accused beyond reasonable doubt. Hence, he has sentenced the accused with simple imprisonment for one month and fine of Rs.1,000/- for the offence punishable under Section 279 of the Indian Penal Code. Further, he was sentenced to suffer simple imprisonment for one month and fine of Rs.2,000/- each for the offences punishable under Section 304-A and 338 of the Indian Penal Code. In default, punishment has also been awarded. Further, out of the fine amount, amount of Rs.2,500/- each was directed to be paid to the injured as compensation and also to the legal heirs of the deceased Vikram Sambhaji Bhagwat.
4 As aforesaid, the said conviction was challenged by the revision applicant in Criminal Appeal. However, after hearing both sides the learned Additional Sessions Judge has dismissed the appeal. Hence, this revision. 5 Heard learned Advocate Mr. S.S. Gangakhedkar holding for learned Advocate Mr. S.D. Munde for revision applicant and learned APP Mr. P.G. Borade for respondent.
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5 Cri.RevnAppln_29_2020 6 It will not be out of place to mention here, that though the application has been filed on behalf of the revision applicant for suspension of sentence, by order dated 14.02.2020 it was clarified by this Court that since the conviction, that was awarded, is of simple imprisonment for one month and it was submitted that the revision applicant is in jail since 04.02.2020, it was proposed to decide the matter finally at the stage of admission itself and accordingly the matter was heard on 21.02.2020 and it was reserved for Judgment. However, in view of 25.03.2020 lock-down from 25-03-2020 due to Pendamic Covid-19 and the working of Courts was restricted to extreme urgent matters only, the Judgment could not be pronounced. Under such circumstances, in fact, now the revision applicant has already undergone the sentence and he might be out of jail, it would be decided in view of the evidence and the argument, as to whether he was correctly convicted or not by the Courts below. Another aspect to be equally borne in mind is that the revision has been filed under Section 401 of Code of Criminal Procedure. The scope of the section is limited. Unless those circumstances are shown which necessitate the interference by this Court; this Court would be slow in disturbing the concurrent findings given by both the Courts below.
7 It has been vehemently submitted on behalf of the revision ::: Uploaded on - 12/06/2020 ::: Downloaded on - 13/06/2020 09:03:49 ::: 6 Cri.RevnAppln_29_2020 applicant that both the Courts below have not appreciated the evidence properly. Informant is the Police Officer, who was admittedly not present when the accident took place. Though the prosecution has examined and proved the spot panchnama through both panchas, yet, the testimony of the panchas would show that they have not given much details regarding situation at the spot. PW 3 Balasaheb Suryawanshi is the pillion rider on the motorcycle and an eye witness to the accident. However, he has not clearly stated his examination-in-chief as to the manner in which the accident took place and how the bus driver was negligent. If we consider the First Information Report Exh.27, it says that the motorcycle was under the process of overtaking the truck going ahead of it, and during that act of overtaking, it had dashed the bus. That means, the motorcycle driver had not taken proper precautions and had not taken note of the bus coming from opposite side. The exact place of impact on road between the bus and the motorcycle has not been stated by the eye witness. It cannot be gathered from the spot panchnama. Therefore, when the basic ingredients/ factors attracting the rash and negligent driving are not disclosed by the eye witness, it was wrong on the part of both the Courts below to come to conclusion, that the accused was rash and negligent in driving the bus. The alleged high speed of the bus cannot be the sole criteria to hold the bus driver rash and negligent. The tyre marks are noted in the spot panchnama. In fact, the S.T. bus is a heavy ::: Uploaded on - 12/06/2020 ::: Downloaded on - 13/06/2020 09:03:49 ::: 7 Cri.RevnAppln_29_2020 vehicle and it is impossible to apply brakes suddenly, in order to stop it. Every effort was done by the applicant to avoid the accident. The situation at the spot does not invoke doctrine of res ipsa loquitur. The cross-examination of the eye witness would show that the place, where the accident took place, is a busy road and the bus stop was hardly at a distance of 500 feet. There is a chowk ahead of the spot, and therefore, it can be definitely said that after the bus had started from the bus stop its speed might not have been more and since he was supposed to cross the chowk, he could not have got that momentum, which we can now say, amounting to rash and/or negligent driving. When both the Courts have erred in appreciating the evidence and making the correct law applicable to the facts of the case, the power of this Court under Section 401 of Cr.P.C. require interference. Learned Advocate for revision applicant prayed for allowing the revision application and setting aside conviction awarded to the revision applicant. 8 The learned Advocate for the applicant has relied on following authorities.
1) Albert Pinto vs. State of Maharashtra, 1977 U.C.R. (Bom)
271.
2) Paul Peter D'mello vs. State of Maharashtra, 1975 U.C.R. (Bom) 123.
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3) Nageshwar Sh. Krishna Ghobe vs. State of Maharashtra, AIR 1973 Supreme Court 165.
4) Tukaram Sitaram Gore vs. State, AIR 1971 BOMBAY 164.
5) State of Haryana vs. Sher Singh, AIR 2009 Supreme Court
823.
6) State vs. Ian Joseph Salazar, 2011 BCI 84 (Bombay High Court).
7) Gundappa Madolappa Samangave vs. State of Maharashtra, 2015(4) Bom.C.R. (Cri.) 224.
8) Mahendra Madhukar Jagdale vs. State of Maharashtra, 2019(2) Bom.C.R.(Cri.) 401.
9) Sudhir Kalidas Deshmukh vs. State of Maharashtra, 2019(3) Bom.C.R. (Cri.) 60.
9 Per contra, the learned APP has supported the reasons given by both the Courts below. It was specifically submitted that when the eye witness in this case has given the clear picture regarding the manner in which the accident took place, there is least scope to have any other interpretation. The ratio laid down in the decisions relied by the learned Advocate for the revision applicant are not applicable to the facts of the case, as those decisions were based on the facts of the case in each of the matters. It was ::: Uploaded on - 12/06/2020 ::: Downloaded on - 13/06/2020 09:03:49 ::: 9 Cri.RevnAppln_29_2020 not necessary for the prosecution to multiply the witnesses only on the point of the manner in which the accident took place. The best witness in this case was PW 3 Balasaheb Suryawanshi. The eye witness has stated that the accident had taken place due to the negligence on the part of the bus driver. His testimony stood supported by the spot panchnama, which has been got proved through the panch witnesses. When in fact, it is admitted fact that Vikram died during the treatment for the injuries caused due to the said accident, it was in fact, not necessary to examine the Medical Officer, who had conducted autopsy. All those documents in the form of Inquest Panchnama, Post Mortem Report clearly show, that Vikram died due to the accidental injuries. Accused has not led any evidence in defence. Therefore, both the Courts were justified in convicting the accused and upholding the said conviction respectively. The scope of this Court under Section 401 of Cr.P.C. has been now narrowed down in view of the concurrent findings. Learned APP, therefore, prayed for dismissal of the revision application. 10 At the outset, it can be certainly stated that unless Courts appreciate the evidence properly they will not be able to make out, as to whether any offence has been made out or not and whether it has been proved beyond reasonable doubt or not. The cardinal principle has been laid down by the Hon'ble Apex Court that a ratio in one criminal case is not ::: Uploaded on - 12/06/2020 ::: Downloaded on - 13/06/2020 09:03:49 ::: 10 Cri.RevnAppln_29_2020 binding on another case, unless the facts are identical. The legal position on this point can be seen from few decisions of Apex Court. In the case of Prakash Chandra v/s. State of U. P. [AIR 1969 SC 195], the Apex Court has observed thus -
"Decisions even of the highest Court on questions which are essentially questions of fact, cannot be cited as precedents governing the decision of other cases which must rest in the ultimate analysis upon their own particular facts." Similarly in the case of Amritsar Municipality v/s Nazara Singh [ AIR 1975 SC 1083] it is observed that, "Even though obiter dictum of the Supreme Court should be accepted as binding precedent, but statements on matters other than law have no binding force since on facts no two cases are similar. The Supreme Court's decisions, which are essentially on questions of fact, cannot be relied upon as precedents for decision in other cases. A three Judges Bench of the Hon'ble Supreme Court in the case of State Financial Corporation v/s. M/s. Jagadamba Oil MIlls [2002 AIR SCW 500] has observed thus :
"Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of the Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for the judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper."
This legal principle will have to be borne in mind."
11 In all those cases relied by the learned Advocate for the revision ::: Uploaded on - 12/06/2020 ::: Downloaded on - 13/06/2020 09:03:49 ::: 11 Cri.RevnAppln_29_2020 applicant here, it can be observed that upon the appreciation of evidence in each of the cases it was held that those facts do not disclose the rash and negligent driving. Certain categories or acts can be stated as rash and negligent act and especially when it comes to driving; since the accidents occur in fraction of seconds. Sometimes it is difficult for even the eye witness to explain, as to how the accident had taken place. All those circumstances are required to be narrated, which resulted in accident as well as surrounding circumstances then prevalent. Therefore, in this case, it is necessary to see as to what the eye witness has stated. PW 3 Balasaheb Suryawanshi has deposed that he along with Vikram were proceeding towards Shivoor. He has absolutely not stated that a truck was going ahead of their motorycle, in his examination-in-chief. The interesting part is that even in cross-examination it was not extracted from him by the accused and not even a suggestion has been given, that just before the accident Vikram had started the act of overtaking the said truck. Therefore, even if we find such type of recital in the FIR, we will have to ignore it, for the simple reason, that the FIR in this case is filed by a person, who was not an eye witness. Though he has been examined, it is not extracted from him, from where he had gathered that information about overtaking. PW 3 Balasaheb has further stated, that when they were near Shivoor Bangla, at that time, the bus having board Nashik- Paithan came in rash and negligent manner and after coming to their side, it ::: Uploaded on - 12/06/2020 ::: Downloaded on - 13/06/2020 09:03:49 ::: 12 Cri.RevnAppln_29_2020 dashed the motorcycle. Thus, he wanted to say that the motorcycle was driven from the left side of its road, but the bus had come towards their side of the road. No doubt, in the examination-in-chief he has not stated the exact place of impact, but he was clear enough to say, that the bus had come to its wrong side before giving dash. Surprisingly, in his cross-examination it has come; rather it has been extracted, that the bus had come to their left side. That means, the motorcycle was at the left side and towards that left side the bus had come. This extraction in the cross-examination was rather supporting the examination-in-chief. Further, he has stated that the speed of the motorcycle was around 50-60 k.ms. per hour, whereas the bus was around 80-90 k.ms. per hour. Since this fact has been extracted in the cross, we cannot brush it aside, on the ground that it is an improvement. No doubt, he has stated that the said road remains busy for the traffic all the time, there is a chowk ahead of the spot. Inspite of these facts we cannot presume that the bus was in slow speed, when the approximate speed of the vehicle has been extracted in the cross. Speed of 80-90 kmph would be high, if there is traffic on the road. Thus, it can be seen that the cross-examination of the eye witness has not shaken his examination-in-chief. When the bus would have been driven in such a speed in traffic, then we can presume that the driver of the bus was negligent.
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13 Cri.RevnAppln_29_2020 12 Further, the prosecution has tried to seek corroboration by examining PW 4 Gajanan Nikam as eye witness. He has stated that after he heard the big noise, he went to the spot and saw that the bus has given dash to the motorcycle. The bus was proceeding from Vaijapur-Aurangabad, that means, from West to East. He has stated that the accident had taken place to the right side of the bus. He has further clarified it, that the spot was towards the right side while going from Vaijapur-Aurangabad, that means, he wanted to say that towards Southern side. Southern half was the correct side of the motorcycle, as the motorcycle was proceedings towards East-West. Though his testimony clearly shows, that he has not seen the actual accident, but he was the person who reached the spot, immediately after the impact. His said statement, that the spot of the accident was towards the Southern side of the road, has not been negativated in his cross-examination. Further, there is absolutely no suggestion to him also regarding overtaking theory. Under such circumstance, if the motorcycle was going from its left side unless the bus would have come to its wrong side the accident would not have taken place. Therefore, the testimony of PW 3 Balasaheb finds support in the testimony of PW 4 Gajanan. PW 6 Dr. Sachin Saoji, is the Medical Officer, in whose hospital Balasaheb was admitted. It appears that even Vikram was also admitted, but then for the proof of Medico Legal Certificate of Balasaheb this witness has been examined. He has proved the MLC of both. He has ::: Uploaded on - 12/06/2020 ::: Downloaded on - 13/06/2020 09:03:49 ::: 14 Cri.RevnAppln_29_2020 noted the injuries on the person, who had fracture to right hand and right leg etc.. A suggestion has been given in the cross, that such kind of injuries are possible if a person drives motorcycle under the influence of liquor and gets injured in accident. Mere suggestion is not sufficient in this case, as there is no other evidence on record to show that Vikram was under the influence of liquor, at the relevant time. No such suggestion was put to pillion rider in his cross.
13 The panchnama of the spot has been proved through both the panchas PW 1 and PW 2 as well as PW 8 PSI Misal, who had carried out the same. The contents of the spot panchnama Exh.15 would also clearly show, that there were 30 feet brake marks of the bus from the spot, where blood stains were found. The width of the tar road is 18 feet and it had 10 feet margin on the Southern side, whereas 7 feet on the Northern side. The blood stains can be seen towards much extreme edge of the Southern side. Though the distance thereof is not mentioned but what is apparent is that those blood stains were on the side margin and not on the tar part of the road. Nothing has been extracted in the cross-examination of PW 1 or PW 2 showing that in fact, the place of impact was on the tar portion of the road. If the bus had gone to the extreme edge of the Southern side, that too on the side margin from which the motorcycle was being driven, then definitely the doctrine of ::: Uploaded on - 12/06/2020 ::: Downloaded on - 13/06/2020 09:03:49 ::: 15 Cri.RevnAppln_29_2020 res ipsa loquitur is required to invoke in this case. There was clear act of rashness and negligent on the part of the revision applicant. 14 As aforesaid, though the ratio laid down in the decisions relied by the learned Advocate cannot be disputed, yet, they cannot be made applicable to the facts of the case, as the appreciation of the evidence in this case leads us only to the conclusion, that the revision applicant was rash and negligent while driving the bus. In fact, when the learned Magistrate had come to the conclusion, that the offence under Section 304-A of the Indian Penal Code has been proved beyond reasonable doubt, then the quantum of sentence, that has been, imposed for the loss of life in that accident, appears to be too meagre. The observations in Dalbir Singh vs. State of Haryana and others, AIR 2000 SC 1677 are important. Though those observations are made in respect of, whether to make the provisions of Section 3 of Probation of Offenders Act applicable to Section 304-A of Indian Penal Code and the answer that was given is in the negative, yet, those observations are important while imposing a sentence for the offence punishable under Section 304-A of Indian Penal Code.
"While considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his ::: Uploaded on - 12/06/2020 ::: Downloaded on - 13/06/2020 09:03:49 ::: 16 Cri.RevnAppln_29_2020 working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles."
In fact, learned Magistrate ought to have kept these observations in mind, while imposing sentence. It is the duty of the Courts to impose adequate sentence on any accused, after he/ she is found guilty of committing any offence. Courts can not be too lenient nor they can should be too harsh. In Jameel v/s. State of Uttar Pradesh [(2010) 12 SCC 532], Apex Court reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, the Court observed thus: -
"15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. It is the duty of every court to award proper sentence ::: Uploaded on - 12/06/2020 ::: Downloaded on - 13/06/2020 09:03:49 ::: 17 Cri.RevnAppln_29_2020 having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."
Further, in Gopal Singh vs. State Of Uttarakhand [CRIMINAL APPEAL NO. 291 OF 2013 (Arising out of S.L.P. (Crl.) No. 9897 of 2012) decided on 8 February, 2013 it is observed that, "Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties ::: Uploaded on - 12/06/2020 ::: Downloaded on - 13/06/2020 09:03:49 ::: 18 Cri.RevnAppln_29_2020 and attractability of the doctrine of bringing the convict to the value- based social mainstream may be the guiding factors. Needless to emphasize, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a strait-jacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalized judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a Court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment". Therefore, though the sentence that has been imposed by the learned Magistrate in this case is too meager and had not taken care to award adequate sentence, yet when there is no appeal filed by State, this Court can not deal with the said point. ::: Uploaded on - 12/06/2020 ::: Downloaded on - 13/06/2020 09:03:49 :::
19 Cri.RevnAppln_29_2020 15 Both the Courts below have correctly appreciated the evidence, and therefore, there is absolutely no necessity to invoke the powers of this Court under Section 401 of Cr.P.C. to set aside those findings. There is absolutely no merit in the present revision applicant, it deserves to be dismissed. Accordingly it is dismissed.
( Smt. Vibha Kankanwadi, J. ) agd ::: Uploaded on - 12/06/2020 ::: Downloaded on - 13/06/2020 09:03:49 :::