Sunday 19 April 2015

Whether rash and negligent driving can be presumed on the basis of high speed of vehicle?



  In the present case, except the bare words of 2 
witnesses, who are interested witnesses, that the bus was in 

high speed, there is no evidence to show that the bus was 
driven rashly and negligently by the applicant.     The Courts 
below   ought   to   have   extended   benefit   of   doubt   to   the 
applicant.   Accordingly, the said benefit is extended in favour 
of   the   applicant   and   the   Judgment   and   the   Order   of 
conviction dated 03/04/1996 passed by the learned J.M.F.C., 
and the Order of conviction dated 01/02/2002 passed by the 
learned   Additional   Sessions   Judge,   Nanded   in   Criminal 
Appeal 33/1996 are hereby quashed and set aside.                                                                            
          IN THE HIGH COURT OF JUDICATURE AT BOMBAY   
                                BENCH AT AURANGABAD
      
CRIMINAL REVISION APPLICATION NO. 45 OF 2002
Gundappa Madolappa Samangave

                  
V E R S U S

The State of Maharashtra
                          
         CORAM  : V.M.DESHPANDE, J.
       DATE OF JUDGMENT : 12 th JANUARY, 2015 
     Citation;2015 ALLMR(CRI)1060

 The applicant, a S.T. Driver, on 02/02/1995 was 
driving   S.T.   Bus   bearing   registration   No.   MH­20/D­1744. 

He was plying the said bus from Kinwat to Latur.   On State 
High­way   of   Bhokar   –   Nanded   near   village   Tatkalwadi, 
accident   took   place.     In   the   said   accident   Ashok   Narayan 
Wagadkar succumbed to the injuries as mentioned in Exh. 31, 
the postmortem report.  
The   applicant   –   driver   was   prosecuted   for   the 
2.

offences punishable u/ss 279 and 304­A of the Indian Penal 
Code   in   Crime   No.   27/1995.       In   a   criminal   case   bearing 
S.C.C.   No.   171/1995,   the   learned   J.M.F.C.,   Bhokar   framed 
Charge against the present applicant.   The applicant abjured 
his guilt and claimed for his trial.  In order to bring home the 
guilt,  the  prosecution   has  examined  in   all   7  witnesses  and 
also relied on various documents.  
3.
The learned  J.M.F.C., Bhokar vide its Judgment 
and   order   dated   03/04/1996   recorded   a   finding   of   guilt 
against   the   applicant   and   sentenced   him   to   suffer   Simple 
Imprisonment  for 3 months  and  also ordered to pay fine of 
` 1,000/­ [Rupees One Thousand only], in default   to suffer 
Simple Imprisonment for 15 days for the offences punishable 
u/ss 279 and 304­A of the Indian Penal Code.  

The applicant carried Appeal before the learned 
4.
Sessions Judge, Nanded.   The said Appeal was registered as 
Criminal   Appeal   No.   33/1996   and   the   learned   Additional 
Sessions Judge, Nanded on 01/02/2002  dismissed  the  said 
Appeal   and   thereby   confirmed   the   order   of   conviction. 
Hence, this Revision.  
Heard Mr. H.M.Salve, the learned counsel for the 

5.
applicant   and   Mr.   V.H.Dighe,   the   learned   A.P.P.   for   the 
respondent – State.   With their able assistance, I have gone 
through the record and proceedings.  
6.
Undisputedly,  Ashok Narayan Wagadkar died in 
the accident.     It is also not in dispute that at the relevant 
time   the   applicant  was  driving   the   ill­fated  bus.    The   only 
question that has to be answered by this court is, whether it 
was a pure accident and whether the accident occurred due 
to the rash and negligent driving on the part of the present 
applicant ?  
7.
The F.I.R. (Exh.  18) which  is  filed by Narayan 
Sitaram   Wagadkar,   the   father   of   the   deceased,   specifically 

mentions about the standing of truck on the State High­way. 
He   also   pointed   out   in   the   F.I.R.   that   the   deceased   was 
standing near the said truck.   From the evidence of the other 
prosecution   witnesses   also,   it   is   clear   that   the   existence   of 
standing of truck is not in dispute, though the same is not 
mentioned in the Spot Panchanama (Exh.20).  
  Important   to   note   is   that   in   the   Spot 

8.
Panchanama, there is recital about application of the brakes 
by the driver of said S.T. bus.   This particular aspect is very 
lightly brushed aside by both the Courts below.  We can not 
forget that the S.T. bus is a heavy vehicle and it is impossible 
to apply brakes suddenly and due to the sudden application 
of the brakes, the vehicle will not stop then and there only. 
Further it is admitted position that the accident has occurred 
on the State High­way.  Mere speed is not the sole criteria to 
reach to the conclusion that the driver was driving the vehicle 
rashly   and/or   negligently.     While   reaching   to   such 
conclusion, the Courts are under obligation to verify the other 
attending   circumstances.       If   the   accident   is   occurred   in   a 
bazar, then the speed of 30 Km. per hour will also termed as 
high speed, whereas 60 Km. per hour speed on a High­way 

may not be  termed as high  speed.     High speed itself is a 
relative   term.     Bare   words   from   the   prosecution   witnesses 
that   the   bus   was   in   high   speed,   can   not   be   accepted, 
especially when the accident has occurred on the middest of 
the State High­way.  
All these aspects are not properly considered by 
9.

any   of   the   Court   below.       The   learned   counsel   for   the 
applicant has rightly pointed out to me the decision of the 
Apex Court reported in the case of Mahadeo Hari Lokre  Vs. 
The State of Maharashtra, AIR 1972 Supreme Court 221, 
wherein the Apex Court has observed as under, :
“     If a person suddenly crosses the road  
the Bus Driver, however, slowly he may be  
driving, may not be in a position to save  
the   accident.       Therefore,   it   will   not   be  
possible to hold that the Bus Driver was  
negligent. ”
10.
In the present case, even the recital of the F.I.R. 
clearly shows that the deceased was standing in front of the 
truck on a High­way.     Further, this Court, way back in the 
year 1972, has ruled that there can not be any presumption 

unless and until there is a cogent evidence to show that the 
driver   was   driving   the   vehicle   negligently   and   rashly   as 
observed in the case of  Tukaram Sitaram Gore   Vs.   The 
State of Maharashtra, AIR 1971 Bombay 164. 

11.
In the present case, except the bare words of 2 
witnesses, who are interested witnesses, that the bus was in 

high speed, there is no evidence to show that the bus was 
driven rashly and negligently by the applicant.     The Courts 
below   ought   to   have   extended   benefit   of   doubt   to   the 
applicant.   Accordingly, the said benefit is extended in favour 
of   the   applicant   and   the   Judgment   and   the   Order   of 
conviction dated 03/04/1996 passed by the learned J.M.F.C., 
and the Order of conviction dated 01/02/2002 passed by the 
learned   Additional   Sessions   Judge,   Nanded   in   Criminal 
Appeal 33/1996 are hereby quashed and set aside.
Bhokar in S.C.C. No. 171/1995 together with the  Judgment 
12.
The   present   Criminal   Revision   application   is 
allowed. The applicant Gundappa S/o Madolappa Samangave 
is acquitted for the offences punishable u/ss 279 and 304­A 
of the Indian Penal Code.   The applicant is on bail.  His bail 

bonds stand cancelled.  
 [V.M.DESHPANDE, J.]




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