V. K. Jadhav, J. - (1.) By way of this criminal revision application, the applicantaccused challenges the judgment and order of conviction passed by the J.M.F.C. Pathardi, dated 10.5.2004 in S.C.C. No. 225 of 2003 and the said judgment and order is confirmed by the I Ad-hoc Additional Sessions Judge, Ahmednagar by judgment and order dated 11.7.2005 in Criminal Appeal No. 53 of 2004.
(2.) Brief facts giving rise to the present criminal revision application are as follows:- a) The complainant Raju is resident of village Karanji and he is running a Hotel named as Samadhan, abutting to Nagar-Pathardi road at Karanji. The said hotel is situated to the southern side of Nagar-Pathardi road. On 16.6.2003 at about 3.00 p.m., the complainant was present in front of his hotel alongwith one Ashok Kshetre. At that time, he heard a loud sound and after hearing the said sound, he found that one person was lying on the road in injured condition and one truck bearing registration No. MH-20-A-6964 was proceeding towards Pathardi. Thus, the complainant Raju chased the truck on motorcycle and he was succeeded in stopping the said truck at a distance of half kilometer away from hotel Samadhan. He caught hold of the truck driver, who is the present applicant-accused. The truck was loaded with goods. Thereafter, complainant Raju had lodged a complaint Exh.18. On the basis of his complaint, crime No. 64 of 2003 came to be registered with concerned police station for the offence punishable under Section 304-A of I.P.C. The investigating officer has prepared inquest panchanama Exh.13 and also drawn spot panchanama and seizure panchanama of the truck. It has been revealed that the rear wheel of the said truck was passed over the head of the deceased and in consequence thereof, the deceased died on the spot. b) After completion of investigation, the investigating officer submitted charge sheet against the applicant-accused for the offences punishable under Sections 279, 304-A of I.P.C. and under Sections 134/177 of the Motor Vehicles Act. The learned Judge read over and explained the charge to the accused. The accused pleaded not guilty to the same and claimed to be tried. In order to substantiate the charge levelled against the accused, the prosecution has examined in all six witnesses. After completion of the evidence of prosecution witnesses, the statement of applicant-accused under Section 313 of Cr.P.C. came to be recorded. The defence of the applicant-accused was of total denial as well as that he was not driving the vehicle in rash and negligent manner. c) After hearing both sides, the learned J.M.F.C. Pathardi, by judgment and order dated 10.5.2004 passed in S.C.C. No. 225 of 2003, convicted the applicant under Section 279 of I.P.C. and sentenced him to suffer R.I. for three months and to pay fine of Rs.500/- i/d to suffer S.I. for 15 days and further convicted him for the offence punishable under section 304-A of I.P.C. and sentenced him to suffer R.I. for six months and to pay fine of Rs.3000/- i/d to suffer S.I. for three months. The amount of Rs.2000/-, out of the realized fine amount was directed to be given to the parents of deceased Sayaji Bhaurao Markad by way of compensation under Section 357 of Cr.P.C. The learned Magistrate has directed that the substantive sentences shall run concurrently. The appeal preferred by the applicant-accused bearing Criminal Appeal No. 53 of 2004 came to be dismissed by learned I Ad-hoc Additional Sessions Judge, Ahmednagar by the judgment and order dated 11.7.2005. Hence, this criminal revision application.
(3.) Learned counsel for the applicant-accused submits that there is no direct evidence in this case. The prosecution case entirely rests upon the circumstantial evidence. Learned counsel submits that the trial court as well as the appellate court considered the position of vehicle and the spot of accident and though there is no direct reference of maxim "res ipsa loquitur" so as to shift the burden on the accused, the learned Magistrate has held that it was for the accused to explain about the accident in question since the prosecution has proved the basic facts and failing therein, further held that the prosecution has proved the case against the accused. Learned counsel submits that the maxim "res ipsa loquitur" is inapplicable in criminal proceedings. It is always for the prosecution to prove the case beyond reasonable doubt against the accused. Learned counsel submits that even if the said maxim "res ipsa loquitur" is applied to the facts and circumstances of the present case, the attendant circumstances on record indicates that the said maxim cannot be attracted in the facts and circumstances of the present case. On the basis of the attendant circumstances, the inference about rash and negligent driving on the part of the applicant-accused could not have been drawn.;