Case Note & Summary
The applicant, Sambhaji Bhagwan Bade, was convicted by the Judicial Magistrate First Class, Pen, in Regular Criminal Case No.28 of 2012 for offences under Sections 279, 337, 338, 304-A of the Indian Penal Code, 1860, and Section 184 of the Motor Vehicles Act, 1988, for causing the death of a pedestrian and a bullock, and injuries to others, by driving a tempo rashly and negligently on 8 October 2011. The conviction was confirmed by the Additional Sessions Judge, Raigad at Alibaug, in Criminal Appeal No.60 of 2015. The applicant filed a criminal revision before the Bombay High Court. During the hearing, the court noticed a lacuna in the Section 313 CrPC statement as certain questions based on the evidence of PW-1 and PW-5 were not put to the applicant. The court suspended the sentence and put those questions to the applicant on 23 September 2024. The applicant's counsel argued that the identity of the driver was not established, that brake marks indicated the driver applied brakes, and that no passengers from the tempo were examined. The State argued that the act of driving was not denied, the applicant admitted his medical certificate and those of other occupants, and the evidence of PW-1, PW-4, and the investigating officer was sufficient. The court held that in revisional jurisdiction, re-appreciation of evidence is not permissible; only illegality or perversity can be examined. The court found that the trial court's findings were not perverse. The identity of the applicant was not disputed as he was exempted from personal attendance subject to not disputing identity. The brake marks indicated high speed, and the applicant did not probabilise the defence that the bullocks came suddenly. The court applied the principle of res ipsa loquitur, holding that the circumstances proved rash and negligent driving. However, considering the applicant's physical condition and the period already undergone, the court modified the sentence to the period already undergone, while maintaining the fine.
Headnote
A) Criminal Procedure Code - Section 313 Statement - Lacuna Cured by Appellate Court - The appellate court can put questions to the accused if there is a lacuna in the Section 313 statement, even if the matter is pending in revision, as per the Supreme Court's clarification. (Paras 3-5) B) Criminal Procedure Code - Section 317 - Dispensing with Personal Attendance - Identity Not Disputed - When the trial court exempts the accused from personal attendance subject to not disputing identity, the accused cannot later raise the ground of non-identification. (Para 9) C) Indian Penal Code, 1860 - Section 304-A - Rash and Negligent Driving - Res Ipsa Loquitur - The principle of res ipsa loquitur can be applied in criminal trials. The facts that the tempo gave dash to a pedestrian and bullock and then hit a tree indicate rash and negligent driving. (Paras 12, 14) D) Criminal Procedure Code, 1973 - Revisional Jurisdiction - Scope - In revision, re-appreciation of evidence is not permissible; only illegality or perversity can be examined. The trial court's finding based on proved facts is not perverse if the facts are sufficient to infer guilt. (Paras 7-8)
Issue of Consideration
Whether the conviction under Section 304-A IPC for rash and negligent driving causing death is sustainable in revisional jurisdiction, and whether the sentence can be modified considering the applicant's physical condition and period already undergone.
Final Decision
The conviction is upheld, but the sentence is modified to the period already undergone; fine remains the same. The criminal revision is disposed of.
Law Points
- Scope of revisional jurisdiction
- Section 313 CrPC lacuna can be cured by appellate court
- Res ipsa loquitur applicable in criminal trials
- Mere speed not necessarily rash and negligent
- Identity of accused not disputed when exemption granted subject to condition
