High Court

Legal Reasoning

Revn-376-2019.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL REVISION APPLICATION NO. 376 OF 2019WITH APPLN/4168/2019 IN REVN/376/2019 WITHAPPLN/4169/2019 IN REVN/376/2019Akshay S/o Madhavrao Khandve,Age 24 years, Occu. Education,R/o H. No. 15/3, N-9, CIDCO,Shrikrishnanagar, Aurangabad....PetitionerVERSUSThe State of MaharashtraThrough the Police Station Cidco,Tq. and District Aurangabad.(Copy to be served on Public ProsecutorHigh Court of Judicature of BombayBench At Aurangabad)....Respondent...Advocate for Petitioner : Mr. V.D. Sapkal, Senior Counsel i/b Mr. S.R.SapkalAPP for Respondent/State : Ms. P.J. Bharad... CORAM : S.G. MEHARE, J. RESERVED ON : JUNE 27, 2024 PRONOUNCED ON : JULY 15, 2024JUDGMENT :-1.The Petitioner, who had just completed 18 years at thetime of the incident, has preferred the revision against the judgmentand conviction passed in S.C.C. No.6499/2013 passed by the learnedJudicial Magistrate First Class, (Court No.9), Aurangabad dated17.04.2019 and the learned Additional Sessions Judge-10,Aurangabad in Criminal Appeal No.102/2019 decided on 12.12.2019.2.The brief facts of the case were that on 20.04.2013, thedeceased was sitting on a fibre chair in front of her house. Her house Revn-376-2019.odt(2)was on the side of the road from Maruti Temple towards SanjayGandhi Market. At about 07.25 pm, the accused rode the motorbikewithout the registration number. He drove it rashly and negligentlyand dashed the deceased, who was sitting on the platform of herhouse. The road was 20 feet wide. The rough surface was led there infront of her house. She met with an accident. She was hospitalized.During treatment, she died. Her son/eyewitness lodged the report on07.05.2013.3.The Petitioner faced the trial for the offence punishableunder Section 304-A of the Indian Penal Code and under Sections3/181, 50(1)/177 and 3, 4/180 of the Motor Vehicles Act. Theprosecution examined the eyewitness, spot panch, and investigationofficer. The Petitioner admitted the post-mortem report. The deceasedhad suffered a head injury and died due to complications followingthe said injury.4.The learned Judicial Magistrate First Class, appreciatingthe evidence and the spot of incident held the accused guilty of theabove offences. The learned Additional Sessions Judge re-appreciatedthe evidence and maintained the judgment and order of the learnedJudicial Magistrate First Class.5.The learned senior counsel for the Petitioner hasvehemently argued that the exact place of the accident was notproven. Considering the map, the incident is improbable. Referring to Revn-376-2019.odt(3)this map, he argued that there was nothing to believe that thePetitioner drove the vehicle rashly and negligently. Since there was arough surface on the spot of the incident and the deceased wasalready suffering from some leg ailments, there was a greatprobability of falling down and sustaining an injury to her head. Hefurther argued that the head injury was not caused due to theaccident. The evidence of PW-4 Mandakini Mukund Atkare wasrelevant to believe that it was not an accidental injury but it was theinjury caused due to the tap. He has referred to the post-mortemreport and argued that unless the medical expert is examined, it isdifficult to ascertain the exact cause of death. He argued that sincethe deceased was shifted from one hospital to another hospital, therewas a great possibility of infection, and that may be the cause ofdeath. He further argued that there was an inordinate delay of 17days in lodging the F.I.R. There is a great possibility of falling thedeceased as she was not able to walk without the walker. Referring tothe spot of the incident, he raised the doubt on the eyewitness. Healso argued that only the family members were examined aswitnesses. The prosecution has skipped Independent witnesses.Hence, an adverse inference may be drawn against the prosecution.The evidence was not sufficient to prove the charges levelled againstthe Petitioner. In the alternative, he prayed that considering the age of Revn-376-2019.odt(4)the Petitioner at the time of the incident and his future, the benefit ofthe Probation of Offenders Act may be extended.6.To bolster his arguments, he relied on the case of PremChand Vs. State of Himachal Pradesh, 2017 DGLS (SC) 1396, Vijays/o Namdeorao Kute Vs. State of Maharashtra, 2007 BCI 391, NithinVs. State Rep by its Inspector of Police, Crl. R.C. No.939 of 2019decided by the Madras High Court dated 01.02.2022 and RaghunathPradhan Vs. State of Orissa, 2006 Cri. L.J. 3211.7.Per contra, learned APP has argued that the doctrine ofres ipsa loquitur also supports the prosecution in proving the case inaddition to the direct evidence. The spot itself speaks the truth. Thedeceased was sitting far away from the main road. The road was wideenough. The force of the dash could be understood from the injuriessustained by the deceased. The defence was improbable. There is noground to disbelieve the eyewitness who was in the shop adjoining hishome. Non-examination of the independent witness does not makethe prosecution case fatal. The delay in lodging the F.I.R. isappropriately explained. Firstly, it was necessary to save the life of theinjured. Since the complications arose in her health, she was shiftedto different hospitals. The post-mortem report has been admitted tothe Petitioner. Therefore, examination of the Medical Officer is notessential. There were no suggestions to the witnesses that she died ofthe infection caused to her due to shifting her from one hospital to Revn-376-2019.odt(5)another. Her leg was twisted but not fractured. Both Courts havecorrectly appreciated the evidence. She has further argued that theprosecution has proved the case beyond reasonable doubt. Thevehicle was plied on the road without registration. This is not a fitcase to extend the benefit of the Probation of Offenders Act. Tobolster her arguments, she relied on the case of NishantHarishchandra Salvi Vs. State of Maharashtra, 2018 DGLS (Bom.)695, Thangasamy Vs. State of Tamil Nadu, 2019 DGLS (SC) 276 andSubhash Chand Vs. State of Punjab, A.I.R. 2019 SC 1133. 8.In reply, learned senior counsel for the Petitioner wouldsubmit that the compensation under the Motors Vehicle Act hasalready been granted to the dependents of the deceased. The case isimprobable. The case laws relied upon by the learned APP are notrelevant to prove the case.9.This is a revision under Section 397 r/w 401 of theCriminal Procedure Code. The revisional jurisdiction under thisprovision is limited. To invoke the jurisdiction under these provisions,the convict should satisfy the Court that there are glaring defects inthe procedure or manifest error on the point of law, and consequently,there has been a flagrant miscarriage of justice. The erroneous findingof the Trial Court would not justify setting aside the order of acquittal.The scope of revisional jurisdiction of the High Court does not extendto the re-appreciation of evidence. Under revisional jurisdiction, the Revn-376-2019.odt(6)revisional Court has limited power to examine the legality and thepropriety of the order impugned before it. In the exercise of revisionaljurisdiction, the Court can interfere with the findings if the same arecontrary to material available on record and otherwise perverse. So,the burden was on the Petitioner to satisfy the Court that the findingswere contrary to the material available on record and otherwiseperverse.10.Two Courts have concurrently held that the Petitionerwas driving the offending vehicle rashly and negligently. Both courtshave considered oral and documentary evidence. The appreciation ofevidence by both Courts clearly established that the incidenthappened when the deceased was sitting in front of her house on afibre chair. Due to the accident, she suffered an injury from the impactof a tap, which was on the spot of the incident. The offending vehiclewas recovered from the spot of the incident. There was nothing beforethe Court to believe that the Petitioner was falsely implicated in thecrime. The injuries were caused to the deceased due to the accident.There was no probability to believe the defence that she sufferedinjuries by falling on the rough surface. The prosecution has aconcrete case that she was sitting in front of her house. It was notdisputed that the son of the deceased had a shop adjoining the house.There was no material to believe the defence that he couldn't witnessthe incident. The daughter-in-law of the deceased also immediately Revn-376-2019.odt(7)came out of the house after the incident on hearing noise and noticedthat the offending vehicle dashed her. She sustained the injuries, andthe offending vehicle without a registration number was lying on thespot of the incident. Both Courts have considered the spot of theincident. It was a wide road, and after the road, there was some openspace without fencing and the deceased was sitting near the platformadjoining the house.11.Though it has been tried to raise serious doubt about thecause of death, the post-mortem report was admitted. Therefore, theCourt is of the view that in these peculiar facts and circumstances ofthe case, non-examination of the Medical Officer is not fatal to theprosecution. The facts have been proved and correctly appreciatedthat since there were complications in her health, she was shiftedfrom one hospital to another. The post-mortem report mentions thespecific cause of death. The prosecution proved beyond reasonabledoubt that the deceased died of the injuries sustained in the motorvehicular accident. The explanation for the delay in lodging the reportwas probable. Examining both judgments, the Court is of the viewthat they have correctly held that the ingredients of Section 304-Ahave been proved. The doctrine of res ipsa loquitur also supports theprosecution. None of the judgments impugned before the Courtappears perverse, illegal or improper. The sentences imposed upon thePetitioner were also proportionate and just. Revn-376-2019.odt(8)12.The question is, Could the benefit under Section 4 of theProbation of Offenders Act be extended to the Petitioner? The Hon'bleApex Court, in the case of Prem Chand supra extended the benefit ofthe Probation Act to the convict for the offences punishable underSections 279, 337 and 338 of the I.P.C., holding that the accused wasfirst time offender and had no antecedents. In the case of RaghunathPradhan (supra), the Orisa High Court extended the benefit of Section4 of the Probation of Offenders Act for the offence punishable underSections 279, 304-A of the Indian Penal Code. The facts of the casewere that the old lady was slightly hard of hearing. She wasproceeding on her left side, and the bus dashed against her frombehind. The driver of the bus blew the horn only from a littledistance. After the horn was blown, the victim went to the extremeleft side, being more conscious of coming to the bus from herbackside. Even then, the accident happened. The driver of theoffending vehicle was a young man and only bread winner of hisfamily. Under these premises, the Hon'ble Supreme Court extendedthe benefit of Section 4 of the Probation of Offenders Act. 13.In the case of Vijay Namdeorao Kute (supra), this Courtdealt with the issue of an application under Section 4 of the Probationof Offenders Act in favour of the accused held guilty for the offencepunishable under Section 304-A of the Indian Penal Code. In thatcase, the case of Aitha Chander Rao Vs. State of A.P., 1981 SCC 637, Revn-376-2019.odt(9)was relied on, in which it was held that the offence under Section304-A of the Indian Penal Code comes within the purview of theprovisions under the Probation of Offenders Act and the benefit wasaccordingly extended.14.The prosecution has strongly opposed extending thebenefit of the Probation of Offenders Act to the Petitioner. She reliedon the case of Nishanth Harishchandra Salvi (supra) in which theBombay High Court held that the provisions of the Probation ofOffenders Act must be applied with discretion. In that case, the caseof Dalbir Singh Vs. State of Haryana, A.I.R. 2000 SC 1677 wasreferred to in which the Hon'ble Supreme Court had laid down thelaw that the benefit of the Probation of Offenders Act should notnormally be avoided in respect of the offences under Section 304-A ofthe I.P.C. when it involves rash or negligent driving. In the case ofNishant (supra), the case of State of U.P. Vs. Kishan, 2005 Cr.L.J. 333was also referred to, and certain observations were reproduced. TheHon'ble Supreme Court, in that case, observed that 'undue sympathyto impose inadequate sentence would do more harm to the justicesystem to undermine the public confidence in the efficacy of law andsociety could not long endure under such serious threats. It is,therefore, the duty of every Court to award proper sentence havingregard to the nature of the offence and the manner in which it wasexecuted or committed etc.' Referring to this judgment, the tone of Revn-376-2019.odt(10)the argument of the learned APP was that since the offence is serious,such type of offences are mushrooming in the society. Many innocentsare losing lives. Hence, it would be inappropriate to extend thebenefit of the Probation of Offenders Act to the Petitioner.15.Further, in the case of Thangasamy (supra), which wasrelied upon by the learned APP, the Hon’ble Apex Court has observedreferring to the case of State of Karnataka Vs. Murlidhar, (2009) 4SCC 463 that wherein, for rash and negligent driving, the respondentcaused an accident resulting in the demise of a 16-year-old boy whileanother person sustained grievous injuries. The Trial Court sentencedthe respondent to six months imprisonment and a fine of Rs.1,000/-with a default stipulation for the offence under Section 338 I.P.C. andto rigorous imprisonment for one year with a fine of Rs.5,000/- with adefault stipulation for the offence under Section 304-A I.P.C.However, the High Court waived the custodial sentence and only fineswere imposed. This Court referred to the principles related to theoffence under Section 304-A of I.P.C. as also the problems associatedwith the road traffic injuries and found absolutely no reason that theHigh Court waived the custodial sentence awarded to the respondent.Accordingly, the judgment of the High Court was set aside.16.To counter the argument of the learned APP, the learnedsenior counsel for the Petitioner has referred to the case of Nithin(supra) in which the case of Dalbir Singh and a few other cases of Revn-376-2019.odt(11)granting benefit of the probation to the convict for the offence underSection 304-A has been referred to. After an elaborate discussion, theMadras High Court extended the benefits of the Probation ofOffenders Act. In that case, the case of State Vs. Sanjeev Nanda(2012) 8 SCC 450 was referred to in which six persons were killedand one was injured. The accused was punished for the offencepunishable under Section 304 Part II of the Indian Penal Code. In para22 of that judgment, it has been observed that 'there may also besituations where an offence is punishable under Section 304-A I.P.C. inan accident "where mens rea remains absent" and refusal to release aconvict on probation in such a case may be too harsh an approach totake. An absolute principle of law that, in no case, falls under Section304-A I.P.C. should a convict be released on probation cannot be laiddown. This is certainly not to say that in all cases falling underSection 304-A I.P.C., the convict must be released on probation-it isonly that the principles laid down in Sections 360 and. 361 of theCriminal Procedure Code and the Probation of Offenders Act shouldnot be disregarded but should be followed and an appropriatedecision, depending on the facts of the case, be taken in each case. Sofar as the ratio laid down in the case of Dalbir Singh (supra), it hasbeen observed that 'that decision, in a sense, was a precursor to astricter application by this Court of the provisions for releasing a Revn-376-2019.odt(12)convict on probation and went contrary to the grain of earlierdecisions of this Court.'17.Reading the above case laws, one could understand thatthe provisions of the Probation of Offenders Act should not bedisregarded but should be followed and an appropriate decision,depending on the facts of the case, be taken in each case. There wasno absolute bar extending the benefit of Section 4 of the Probation ofOffenders Act to the convict who has been held guilty for the offencepunishable under Section 304-A of the Indian Penal Code. Thepeculiar facts and circumstances of this case were that the Petitionerhad just completed 18 years. He was a teenager, and in theexcitement and happiness, he might have driven the new vehicle forthe first time and lost control. In the ordinary course, he had noreason to take the vehicle away from the road and cause an accident.His age and the way in which the accident happened are the peculiarfacts to be considered in this case. He has a bright future. He isapprehensive about the stigma of conviction that may ruin his future.The mens rea is absent in such cases. He was a first-time offenderand had no antecedents. Therefore, without disregarding theProbation of Offenders Act, this Court is of the view that in the factsand circumstances of the case, it is expedient to release him onprobation under Section 4 of the Probation of Offenders Act to thePetitioner. Hence, the following order : Revn-376-2019.odt(13)O R D E R(i)Criminal Revision Application is partly allowed.(ii)Petitioner, who is held guilty for the offence punishableunder Section 304-A of the Indian Penal Code andSection 3/181, 50(1)/177 and 3, 4/180 of the MotorVehicles Act is maintained. (iii)However, instead of sentencing the Petitioner at once toany punishment, he is released on entering into a bondwith one surety for one year to receive the sentence whencalled upon during the above period and, in themeantime, maintain peace and good behaviour. (iv) Fine paid for the offence punishable under the provisionsof the Motor Vehicles Act should be forfeited to theGovernment. (v)The fine amount for the offence punishable under Section304-A of the Indian Penal Code be paid to the legal heirsof the deceased.(vi) The surety stands discharged, and the surety bond standscancelled.(vii) R and P be returned to the Trial Court. (S.G. MEHARE, J.)Mujaheed//