Bombay High Court
Jayprakash Laxman Tambe vs State Of Maharashtra on 11 June, 2003
Author: J.G. Chitre
Bench: J.G. Chitre
JUDGMENT
1. The petitioner is hereby assailing correctness, propriety and legality of the judgment and order conviction and sentence passed against him by Metropolitan Magistrate, 17th Court, Mazgaon, Mumbai passed in case No. 88/P/1988, whereby the learned Magistrate convicted the present petitioner for an offence punishable under Section 304A of Indian Penal Code and sentenced him to undergo rigorous imprisonment for 9 months and to pay fine of Rs. 5,000/-, in default to suffer further rigorous imprisonment for two months. The learned Magistrate directed that after realisation of fine, amount of Rs. 1000/- be paid to legal heirs of each deceased, and Rs. 500/- be given to the heirs of each injured person. The petitioner is also challenging the correctness, propriety and legality of the order of the Additional Sessions Judge, Greater Mumbai, who confirmed the said order of conviction and sentence by dismissing Criminal Appeal No. 70 of 1995 filed by the petitioner in the said Court.
2. The facts, which can be mentioned are as mentioned hereunder. On 12/9/1987 at about 1.30 a.m. the complainant Lallan was driving a taxi and was going towards Bhendi Bazaar from Dadar by driving the said taxi on Dr. Babasaheb Ambedkar Road. When he was passing through the said road and was near Jayhind Cinema, Chinchpokali, a Municipal Van bearing No. MRO-6763 (B.M.C. Truck driven by the present petitioner), was coming from opposite direction. IT is the prosecution case, that the said truck was in high speed. On account of high speed, as per prosecution case, driver of the said van (present petitioner) lost the control and said van crossed the divider of the road and came on eastern side of the said road, on account of which there was a collision between the said van and the said taxi of the complainant and another. In the said collision two passengers and driver of another taxi were injured. Unfortunately, the driver and one passenger expired, Lallan Jiteram Parmar, P.W.1, the driver of the taxi which collided from the opposite direction lodged FIR, against the present petitioner. His taxi was damaged but another taxi was crushed and was heavily damaged. The driver and one passenger travelling by the said taxi died. That taxi was ahead of the taxi which was driven by P.W.1 Lallan. Lallan became unconscious after sustaining injuries on account of the said accident. The present petitioner was prosecuted and tried before the learned Magistrate. The trial ended in conviction and sentence and that order of conviction and sentence is being assailed by this revision petition.
3. In the present case, the trial Court examined one Shahaji Baburao Patil, who was at the relevant time attached to the Regional Office of R.T.O situated at Tardeo as Inspector of Motor Vehicles. His evidence shows the mechanical condition of said van which was being driven by the present petitioner. It gives description as to how frontal wheels and rear side wheels were situated.
4. Shri Baadkar, Counsel appearing for the petitioner, submitted that the evidence of Shahaji Patil assumes importance in this case, because, according to his evidence it is very well possible that after getting a jerk on account of some object on the road, big vehicle like van, which was being driven by the present petitioner can get a jerk and on account of that jerk, the rod connecting the frontal wheel and rear wheel may get bent and on account of that driver may find it impossible to stop the vehicle. Shri Baadkar submitted that in the present case, the speed of van, which present petitioner was driving at the relevant time cannot be said to be high because, it was night time and the road was nearly deserted. He submitted that it may be in some more speed but that by itself cannot be a ground to come to the conclusion that petitioner was driving the said vehicle in rash and negligent manner. He submitted that on the contrary, it shows that the petitioner could not stop his vehicle immediately and could not avoid dash with the said taxi, which was being driven by P.W.1 Lallan. He submitted that it strengthens the defence taken by the present petitioner that there was a manhole and on the said manhole a big stone was kept and that big stone obstructed the tyre of the front wheel of the said van and on account of obstruction, the van which present petitioner was driving jumped up and on account of that frontal rod got a bent and the present petitioner could not stop the said van and unfortunately, the said accident took place, for which the present petitioner cannot be said to be responsible at all.
5. Shri Baadkar submitted that the learned trial Court and the appellate Court lost sight of this important aspect of this case and landed in error of recording an order of conviction and sentence against the present petitioner. It being an accident beyond the control of the present petitioner, he was not responsible and petitioner needs to be acquitted by setting aside the two judgments and orders of conviction and sentence. he further submitted that both the courts seem to have been more influenced by the loss of lives of two persons and that must have been also a ground for recording an order of conviction and sentence. Shri Baadkar prasad that the present petition be allowed and the said judgments and orders of conviction and sentence be set aside and petitioner be acquitted.
6. Shri Shrinagarpure, A.P.P. appearing for the prosecution pointed out that there is nothing on record to show that there was really a manhole having a lid thereon and there was a big stone kept which obstructed frontal wheel of the van of the petitioner. He submitted that in the absence of any material on record, submissions advanced by Shri Baadkar for the petitioner cannot be accepted. He submitted that the said van must have been in excessive speed and on account of that he could not have been able to stop the said van after noticing the taxi coming from the opposite side and on account of rash and negligent driving on the part of the petitioner the said accident took place, which caught another taxi also in the said accident and accounted for the death of the driver of the said taxi and one passenger travelling in it.
7. Shri Shringarpure submitted that if the submissions advanced by Shri Baadkar are to be considered, even then on account of excessive speed the petitioner could not stop his van, as he was not able to see the said stone and lid on the manhole. He submitted that this also amounts to negligence and rashness on the part of the petitioner and it can safely be said that he was responsible for the said accident and accidental death of two persons. Shri Shringarpure, justified the order of conviction and sentence passed by the learned Magistrate, which was confirmed by the Additional Sessions Judge, Mumbai.
8. The words, "negligence" and "rashness" used in Section 304A of I.P.C. have to be understood in proper sense and in proper spirit. Negligence indicates total negligence on the part of the driver. It means that he was driving the vehicle in such a negligent way which would stamp his driving by only word "negligence". Rashness indicates that he drives the vehicle in such a way while driving he knows that by such driving he is likely to invite an accident but hopes that such accident may not occur. With these meanings indicated by these two words the act which has been alleged against the present petitioner will have to be judged.
9. The petitioner must have driven the said van in more speed. It may be high speed. But by that itself cannot be said that he was driving the said vehicle negligently or rashly. A person may drive the vehicle correctly, neatly, safely, though he may drive it in high sped. He may drive a vehicle in high speed but may be alert in noticing incoming objects from the opposite direction and may be capable of avoiding them well in advance without causing damage to them or himself, to their vehicles or his vehicle. So far as high speed is concerned, time, place and situation present on the road play important role. If a person drives vehicle in high speed in a crowded road, he would be inviting being touched by the words negligent and rashness. But if he drives the vehicle in high speed if the road is deserted, he would not be blamable by using the words negligence and rashness. He would be neither negligent nor rash if he drives the said vehicle alertly, cautiously, carefully and in a reasonable way, which would not endanger any person, pedestrian, any object, vehicle on the road or those coming from the opposite direction on the road.
10. If a person drives the vehicle in high speed but in a zig zag way unnecessarily, he would be driving it negligently and rashly, because by such driving he is likely to endanger the human beings, likely to endanger vehicles on the road as well as coming from the opposite side or travelling along with him. Therefore, such a driving would be negligent and rash.
11. In the present case, the vehicle seems to have been driven in high speed. If the petitioner wanted to take defence as indicated by him in his statement recorded by the Court, in view of Section 313 of Code of Criminal Procedure, 1973 (hereinafter referred to as Code for convenience), he should have brought the material on record by cross-examination of the prosecution witnesses or by examining the defence witnesses that there was a manhole in existence at that time on the said spot and it was having a lid on it and a big stone was kept on it. He should have brought the material on the record to show that by some impact, the said big stone was moved from the said lid of the manhole. If his plea is taken to be true, by such impact given by the van which was driven by the petitioner, the said stone could be moved from the said spot in an indisciplined way, but the petitioner has not done so, for the reasons best known to him. Apart from that, there is nothing on record to show that there was really a manhole in existence, which was having a lid and there was big a stone as suggested by the petitioner. Had that been so, it would have been mentioned in the panchanama of the spot offence. But so far as the present case is concerned, the spot panchanama does not mention the presence of all those articles.
12. In some cases it does happen that the Police Officer or officer drawing the panchanama in presence of panch witnesses may forget to record some things in panchanama. It may happen on account of for getfulness or casualness in indifference on the part of such police officer and panch witnesses. If such an accused is delegant enough to bring such things on record by way of cross-examination of prosecution witnesses or by examining defence witnesses on the point, the Court may consider such attempts on the part of the accused in the interest or justice. The Courts are there to administer the justice and Courts would take cognizance of such things brought on record. It is accepted principle of law that one who avers a fact has to prove it. In criminal trial if the accused avers a special fact, he has to bring some material on record at least to take to the point of true by preponderance of probability. He is not required to prove it beyond reasonable doubt. Therefore, if it is the plea of the accused that some situation was in existence but was not mentioned in panchanama, it is his duty to bring in on record existence of such situation by the cross-examination of prosecution witnesses. If not, by examining necessary defence witnesses. But if the accused fails in doing so both the ways, the Court would not assure the existence of such situation without there being any material on record to justify.
13. If the accused raises a specific plea, a basis has to be created in that context in the cross-examination of prosecution witnesses, it has to be referred to in the answers given in the examination of the accused in view of provisions of Section 313 of Code of Criminal Procedure, 1973. If the situation demands, such an accused has to led defence evidence also to prove that situation at least to the point of preponderance of probability. All these things have to be done by the accused in respect of special plea and the things which have not been mentioned in the papers of investigation or which have not been embodied in the prosecution case itself. In this case the petitioner has failed to discharge his duty.
14. Thus, the submissions advanced by Shri Baadkar for the petitioner are hereby dismissed keeping in view the limits of revisional jurisdiction of this Court. Keeping in view the revisional jurisdiction, the petition stands dismissed. The order passed by the learned Magistrate which has been confirmed by the Additional Sessions Judge stands confirmed. His bail stands cancelled and he is to surrender the bail. He is directed to surrender before the trial Court, which should send him to appropriate prison for undergoing sentence inflicted by it within two weeks. If he does not attend the Court within two weeks, then the trial Court should send a non-bailable warrant for his arrest.
Parties concerned to act on a simple copy of this order, duly authenticated by the Court Stenographer /Sheristedar of this Court.