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Judgment
This revision is against the judgment of trial Court and also the judgment of first appellate Court. The applicant was tried for the offences punishable
under Sections 279, 337, 338, 304ÂA and 427 of the Indian Penal Code. Learned Judicial Magistrate First Class, Khamgaon by judgment dated 12Â‐
4Â2006 convicted the applicant for the offence punishable under Sections 279, 337, 338 and 304ÂA of the Indian Penal Code and sentenced him as
follows :Â
(a)Â For the offence punishable under Section 279 of the Indian Penal Code, to suffer Rigorous Imprisonment for one month, and to pay a fine of Rs.
100/Â indefault to suffer Simple Imprisonment of 3 days.
(b)Â For the offence punishable under Section 337 of the Indian Penal Code, to suffer Rigorous Imprisonment for one month and to pay fine of Rs.
100/Â in default to suffer Simple Imprisonment of three days.
(c)Â For the offence punishable under Section 338 of the Indian Penal Code to suffer Rigorous Imprisonment of 06 months and to pay fine of Rs.
200/Â indefault to suffer Simple Imprisonment of 6 days.
(d)Â For the offence punishable under Section 304ÂA of the Indian Penal Code, to suffer Rigorous Imprisonment for one year and to pay fine of Rs.
200/Â in default to suffer Simple Imprisonment for 6 days.
Against the judgment of conviction, applicant preferred appeal before the Sessions Court, Khamgaon. Learned Additional Sessions Judge,
Khamgaon vide judgment dated 22Â10Â2012 dismissed the said appeal and confirmed the judgment of conviction passed by learned Judicial
Magistrate First Class, Khamgaon.
2. The case of the prosecution in short against the applicant is as under :Â
(i)Â On 11Â2Â2003 at about 5.00 p.m., taxi was driven by deceased Gopal Manohar Ghumare. In the said taxi, he was carrying 15 passengers. Said
taxi was proceeding from Nandura to Khamgaon. One truck No. MTTÂ6574 was proceeding from Khamgaon to Nandura and there was collusion
between these two vehicles near Labela Hotel. Truck bearing No. MTTÂ6574 was driven by the present applicant. Said truck was in high speed and
dashed to taxi. Two passengers and taxi driver died on the spot. PSI Shri Bayaskar went to the spot of incident and prepared spot panchanama in
presence of panchas. He himself lodged report, Exhibit 41 and registered crime vide printed FIR, Exhibit 42. PSI Shri Bayaskar investigated crime and
after complete investigation, filed chargeÂsheet before the Judicial Magistrate First Class, Khamgaon.
(ii)Â Charge was framed by the Judicial Magistrate First Class at Exhibit 2 for the offences punishable under Sections 279, 337, 338, 304ÂA and 427
of the Indian Penal Code against the applicant. Prosecution has examined 10 witnesses. After hearing the prosecution and defence, learned trial Court
convicted the accused/applicant as stated above.
3. Heard learned Counsel Shri Sirpurkar for the applicant. He has pointed out evidence of P.W. 5 Sk. Sattar Sk. Hasan, P.W. 6 Talimunnisa
Sharifkha and P.W. 7 Khairunbee Yusufkha and submitted that their evidence clearly show that there was collusion in between taxi and truck. There
is no specific evidence to show that accident took place due to rash and negligent driving of applicant himself only. On the other hand, evidence shows
that taxi driver was also driving his taxi rashly and negligently. It is a case of contributory negligence on the part of taxi driver and truck driver
(accused/applicant), therefore, he cannot be held liable, hence, prayed to allow the revision and acquit the applicant for the offences charged against
him.
4. Heard Shri Doifode, learned Additional Public Prosecutor for the State/nonÂapplicant. He has supported the impugned judgment and submitted
that conviction recorded by the trial Court is perfectly legal and correct, hence, revision is liable to be dismissed.
5. Perused the evidence of P.W. 1 Nitesh Gawande. He has stated in his examinationÂinÂchief itself that there was collusion of truck and taxi
near Labela Hotel.
6. P.W. 5 has specifically admitted in his crossÂexamination that 15 passengers were travelling in the taxi. He was on last seat in the taxi. Accident
took place due to collusion of two vehicles. The speed of taxi was high. P.W. 6 has stated in his crossÂexamination that he was travelling in said taxi.
More than 15 passengers were travelling in the taxi. Taxi was driven by its driver in high speed.
7. P.W. 7 has stated in his crossÂexamination that more than 15 passengers were travelling in the taxi. He was sitting in a middle seat of taxi.
The truck was proceeding towards right side of Nandura Khamgaon Road.
8. Evidence of P.W. 1 clearly shows that there was collusion of two vehicles i.e. truck driven by the applicant and the taxi driven by deceased
Gopal. Admission of P.W. 5 and P.W. 6 clearly show that taxi driver was driving taxi in a high speed. He was carrying more than 15 passengers in his
taxi. There was collusion of two vehicles and, therefore, accident took place. From the evidence of prosecution witnesses, it is clear that taxi driver
and truck driver (applicant), both were driving their vehicles in high speed and in rash and negligent manner. It appears that deceased taxi driver was
driving his vehicle in high speed. There is no evidence to show that the applicant was only responsible for the accident. Learned trial Court not taken
into consideration the material evidence of P.W. 1, P.W. 5, P.W. 6 and P.W. 7. P.W. 5 and P.W. 6 have specifically admitted that taxi was carrying
more than 15 passengers. Driver of taxi was driving his vehicle in a high speed. P.W. 6 also given the same admissions. Therefore, it is doubtful as to
whether the applicant was the only person who was responsible for the said accident.
9. It is settled principle of law that when there is any doubt created in the evidence of prosecution then benefit of doubt should go in favour of
accused. Evidence on record clearly show that it is not clear because of exclusive fault of accused/applicant, accident took place. Learned trial Court
as well as first appellate Court not taken into consideration the material evidence on record. Hence, following order.
ORDER
(i)Â The revision is allowed.
(ii)Â Impugned judgments are hereby quashed and set aside.
(iii)Â The applicant is acquitted of the offences charged against him.
(iv)Â Fine amount, if paid, be refunded to the applicant.
(v)Â R & P be sent back to the trial Court.