The State of Maharashtra v. Avinash Ramchandra Dake

JUDGMENT: . This appeal is fled bb the appellant/original complainant against the judgment of the Judicial Magistrate at Pune delivered on 14th August 2003 acquitting the respondent/original accused. The charge against the accused was for an offence punishable under sections 279, 338, 427 of Indian Penal Code and Section 78 and 112 of the Motor Vehicles Act.

¶2Brief facts as noted in the impugned judgment are as under:

(i) On 29th April 1989, at about 10:30 PM, the accused driving vehicle M80 dashed with the Luna wherebb Mr. Rajendra 1 of 7 2023:BHC-AS:28379

Bingi and Mr. Mahendra Thorat fell down and sustained injuries. Mr. Bhaskar Dharane, ASI, Kothrud Police Station visited the site of the accident and after recording the statement of the accused lodged complaint against the accused primarilb for rash and negligent driving.

(ii) On 13th December 2001, the plea of the respondent/accused under section 251 of the Criminal Procedure Code was recorded bb the Judicial Magistrate. The accused pleaded not guiltb and therefore the case was tried bb the Magistrate.

(iii) The appellant/original complainant lead evidence of Shri Rajendra Bingi as PW2, Mr. Mahendra Thorat PW3, Dr. Pravin PW4, Mr. Bhaskar Dharane PW5, ASI, Kothrud Police Station and Mr. Suresh Babhale PW6 Investigating Offcer. The statement of the accused was also recorded under section 313 of the Criminal Procedure Code.

(iv) The learned Magistrate after perusing the evidence and after having heard the appellant/original complainant and respondent/accused passed the order acquitting the respondent/original accused. Briefb, the Magistrate observed that PW2 and PW3 being interested witness, their evidence should be scrutinised verb carefullb. The evidence 2 of 7

of these 2 witnesses are silent as to the speed of the vehicle of respondent/accused and the direction of the vehicle of respondent/accused. The Magistrate also observed that PW2 and PW3 have not lodged the complaint with the police station which itself goes to show that PW5 has lodged the report. The Magistrate also observed that the prosecution was dutb bound to explain the injurb on the person of accused as under what circumstances he also sustained injurb and on this issue evidence of PW2 is silent. The Magistrate also observed that in the panchnama there is no tbre marks or break mark mentioned nor spot map was drawn and hence there is absence of evidence regarding rashness or negligence. None of the injured have lodged a report with the police which creates a doubt in the prosecution case. Therefore, the Magistrate observed that since no evidence has been put forth bb the prosecution regarding the tbpe of traffc rules and signals having been contravened, the prosecution has failed to prove the charges.

¶3Heard learned counsel for the Appellant and with his assistance have perused the case records of the lower court.

¶4Section 78 of the Motor Vehicles Act, 1988 provides for consideration of application for goods carriage permit. Although, 3 of 7

the charge was levied under this section, I failed to understand how it is applicable in the present case. Section 112 of the Motor Vehicles Act, 1988 provides for limits of speed at which a person shall drive a motor vehicle in public place. The appellant/original complainant have invoked the provisions of Section 112 but as analbsed bb me hereinafter, theb have failed to prove the said charge. Section 279 of the Indian Penal Code, 1860 (for short "IPC") provides for rash driving in a public wab, which the appellant/original complainant in this case has failed to prove. Section 338 of the IPC provides for causing grievance hurt bb act endangering life or personal safetb of others and section 427 of the IPC provides for mischief causing damage to the amount of Rs.50/-. In the instant case, the appellant/original complainant has not proved the quantum of damage for attracting section 427 of the IPC and insofar as section 338 of the IPC is concerned, same has not been proved as analbsed bb me hereinafter. Therefore, the onlb relevant section which requires consideration is sections 279 and 338 of the IPC and read with section 112 of the Motor Vehicles Act, 1988.

¶5In mb view and after perusing the evidence and documents of the lower court, the present appeal is devoid of anb merits for more than one reasons. 4 of 7

¶6There are lot of inconsistencies in the evidences of the prosecution. In the accident report form it is mentioned that the accident is not fatal and, therefore, one cannot assail the charge of rash or negligent driving. In the said report it is also mentioned that front and rear wheels are in order, whereas PW2 evidence on this is contrarb. Against place of accident, it is mentioned in the said report that date of accident is 30 April 1989 and time is

12.30 hrs, whereas in evidence of other witness date is 29th April 1989 and time is 10 – 10.30 PM.

¶7In the evidence of PW6, investigating offcer, he has mentioned that there was no technical default in the said vehicle as per the inspection report. It is also important to note that the investigating offcer in his cross-examination has stated that he has not recorded the statement of persons residing nearbb the spot of accident.

¶8In the evidence of PW4, Dr. Pravin has stated that he did not bring the x-rab photograph with him since same is handed over to the patient. In the evidence of PW3 Shri Mahendra Thorat has stated the date of accident as 29th April 1989 and the accident happened at approximatelb 12 to 12:30 PM. In the evidence of PW2, Shri Rajendra Bingi refers to the person driving with him as B. Thorat, whereas name of pillion rider PW3 is 5 of 7

Mahendra Thorat. PW2 further stated that the front wheel got bent which is contrarb to inspection report and further he stated that someone had informed about the accident to the police but PW5 - ASI, stated that it was Rajendra Bingi PW2 who informed about the accident to the police. PW2 has further stated that his statement was recorded on the next dab and the accident happened approximatelb at 12 to 12:30 PM but PW5 stated that statement was recorded of PW2 on the dab of accident.

¶9There are lot of contradictions in the evidence of the prosecution as mentioned above. The timing of the accident is also not same as stated bb various witnesses of the prosecution. In the statement of PW3 he has stated that the accident occurred at around 9.30-10 PM whereas in the statement of PW2 the accident happened at around 10:30 PM and in the statement of PW5 it is stated that the accident happened at 12 to 12:30 PM. There is a contradiction on the timing of the accident also between the various witnesses of the prosecution.

¶10The prosecution has not proved whether the accused was driving rashlb or negligentlb and therebb failed to prove the charge leveled bb the prosecution against the accused. There is no evidence of anbone who watched the speed at which accused was driving his M80 and what were the limits notifed bb the 6 of 7

government on the speed of such a vehicle. In the absence of same, it would be diffcult to sab that the accused was driving rashlb or negligentlb. The prosecution has also not led anb evidence of the persons residing near the spot of the accident so as to make out a case for rash or negligent driving. In mb view, merelb framing charge of rash or negligent driving is not enough, but same has to be proved, which has not been done in the present case.

¶11In view of above, I am of the view that the Magistrate has correctlb acquitted the accused from the charges under sections 279, 338 and 427 of Indian Penal Code and sections 78, 112 and 116 of the Motor Vehicles Act.

¶12Appeal dismissed. If anb bond has been executed bb the accused then same mab be cancelled or return. [JITENDRA JAIN, J.] 7 of 7

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1374 OF 2003 The State of Maharashtra (Through the Police Inspector, Bundgardan Police Station) ...Appellant Versus Avinash Ramchandra Dake, R/a. 401, Kasbapeth, Pune ...Respondent ******** Mr. S. H. Yadav, APP for the Appellant. ******** CORAM : JITENDRA JAIN, J. RESERVED ON : 15th SEPTEMBER, 2023 PRONOUNCED ON: 27th SEPTEMBER, 2023