Bombay High Court
MR. PARMESHWAR MAHADEO NAVATREversusTHE STATE OF MAHARASHTRA
- Decided
- Disposal
- Disposed Off
- Bench
- MADHAV JAMDAR
Holding
The conviction under Section 304A IPC was unsustainable as the evidence did not conclusively establish rash or negligent driving and the benefit of doubt must be given, leading to quashing of the judgment.
Summary
Arjun, a BEST bus driver, was convicted under Section 304A IPC for the death of a cyclist's brother and sentenced to six months' rigorous imprisonment. He appealed, arguing that the sole eyewitness, PW‑2, was not identified through a test identification parade and that the evidence did not prove he was driving rashly or negligently, especially since the bus had just left the stop and was moving slowly. The prosecution relied on PW‑2’s testimony, a panchnama, and other witnesses to show rash driving. The High Court held that the prosecution evidence was inconclusive, the benefit of doubt was not considered, and therefore the conviction could not stand. Consequently, the Court quashed the trial court’s order and the appellate confirmation, granting the revision.
Issues considered
- Whether the conviction under Section 304A IPC is sustainable in the absence of a test identification parade for the sole eyewitness.
- Whether the evidence establishes that the accused drove the bus in a rash or negligent manner.
- Whether the benefit of doubt should be given to the accused under criminal law principles.
Legislation cited
- Indian Penal Code, 1860 — s. 279, 304A
Subjects
- Section 304A IPC
- Section 279 IPC
- rash and negligent driving
- benefit of doubt
- test identification parade
- criminal revision
- conviction quashed
Judgment
04-REVN-300-2003.doc
Arjun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.300 OF 2003
Digitally
signed by Parmeshwar Mahadeo Navatre …Applicant
ARJUN
ARJUN VITTHAL
VITTHAL KUDHEKAR
KUDHEKAR Date:
Versus
2026.01.09
20:38:57 The State of Maharashtra …Respondent
+0530
_______________________________________________________________
Mr. Veerdhawal Deshmukh, appointed for the Applicant.
Ms. R. V. Newton, APP, for the Respondent-State.
_______________________________________________________________
CORAM: MADHAV J. JAMDAR, J.
PRONOUNCED ON: 08 JANUARY 2026
UPLOADED ON: 09 JANUARY 2026
JUDGMENT:
1. Heard Mr. Deshmukh, learned Counsel appointed to represent the
interest of the Applicant and Ms. Newton, learned APP for the
Respondent-State of Maharashtra.
2. By the present Criminal Revision Application, the challenge is to
the legality and validity of the Judgment and Order dated 27th
September 2002 passed by the learned Additional Chief Metropolitan
Magistrate, 24th Court, Borivali, Mumbai in Case No.346/P/1995 as
also the Judgment and Order dated 16th January 2003 passed by the
learned Additional Sessions Judge, Greater Bombay in Criminal Appeal
No.167 of 2002.
3. By the impugned Order dated 27th September 2002 of the
learned Additional Chief Metropolitan Magistrate, the Applicant has
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been convicted for the offence punishable under Section 304A of the
Indian Penal Code, 1860 and sentenced to suffer rigorous imprisonment
for 6 months and to pay a fine of Rs.5,000/- in default to suffer rigorous
imprisonment for 3 months. The said Order has been confirmed by the
learned Appellate Court.
4. It is the submission of Mr. Deshmukh, learned Counsel appointed
to represent the interest of the Applicant that, except PW-2 there is no
other eye-witness. As far as PW-2 is concerned, he is not known to the
Accused and, therefore, it was necessary to conduct a Test Identification
Parade. He submits that admittedly no Test Identification Parade was
conducted by the prosecution and, therefore, the evidence of PW-2
cannot be relied upon. He further submits that there is no evidence to
show that the Applicant was driving the bus in a rash and negligent
manner. He further submits that the bus had left the bus stop and that
the incident occurred immediately thereafter, when the distance
between the bus and the bus stop was only 42 feet. He points out the
statement of the Applicant under Section 313 and submits that the
Applicant has specifically stated that since the bus had just left the bus
stop and the incident had taken place immediately thereafter at a
distance of 42 feet, the bus was moving at a very slow speed. He further
submits that, at least in the facts and circumstances of the case, benefit
of doubt should have been given to the Applicant.
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5. On the other hand, Ms. Newton, learned APP, submits that the
evidence on record clearly shows that the learned Trial Court has rightly
convicted the Applicant and the said conviction has been confirmed by
the learned Additional Sessions Judge. She submits that PW-2 is an
eyewitness to the incident and that his evidence, along with the
Panchanama, clearly corroborates the case of the prosecution that the
Applicant was driving the bus in a rash and negligent manner. She
therefore submits that the Criminal Revision Application be dismissed.
6. Before considering the rival contentions, it is necessary to set out
the prosecution case. The prosecution case is set out in Paragraph No.2
of the learned Trial Court’s Order, which reads as under :-
“2. The accused who is facing the trial under sections 279
and 304-A of the I.P.C. is the BEST bus driver from Mumbai.
On 23.2.1995 at about 8.45 hours he was driving his BEST
bus No. MH-01-H-8886 on the public road which is known as
Marve Road situated at Malad (W), Mumbai-64. The
complainant and his elder brother Lalji Lamna Mourya
(deceased) were going on the bicycle in order to attend their
daily work at the Bangle factory. It was on 23.2.1995 at about
08.15 hours they were proceeding on their bicycle. The
complainant was riding the bicycle and his elder brother was
sitting behind him on the carrier and they came nearby one
Citizen Bank, at Orlem, Marve Road, Malad (W). There was a
left turn for which the complainant had slowed down his
speed. It is alleged that the accused who was driving the BEST
bus came fast from behind and gave dash to the cyclist- the
complainant and his brother and as a result of which the elder
brother of the complainant who was sitting behind the bicycle
fell on the road. It is alleged that the accused was rash and
negligent in driving the bus who could not control the speed
and the rear side wheel of the bus went on the head of the
brother of the complainant. The head of the complainant's
brother was crushed on the spot and the death was caused by
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the accused due to his rash and negligent act. The
complainant lodged the complaint to Malad Police Station.
The investigation was set in motion. The investigating officer
recorded the statements of eye witnesses who were present at
the time of the accident. He also recorded the panchnama of
the scene of offence and after the investigation was
completed, the charge-sheet is filed against the accused under
sections 279 and 304-A of the I.P.C.”
7. The prosecution has examined total 4 witnesses. PW-1 is having a
shop nearby the place where the incident took place. PW-2 is the
brother of the deceased. He was riding the bicycle and Deceased - his
elder brother was sitting behind him on the carrier. PW-3 is one more
eyewitness examined to prove that the Applicant was driving the bus at
the relevant time. PW-4 is the Investigating Officer.
8. Although both the Courts have described PW-1 as an eyewitnes,
his evidence clearly shows that he heard noise and immediately
thereafter saw that the bus had dashed the deceased and PW-2. Thus,
he has not seen the manner in which the incident took place.
9. PW-2, the Complainant, was actually riding the bicycle and the
deceased was sitting behind him. The relevant part of oral deposition of
PW-2 is set out herein below for ready reference :-
“On 23/2/95 at about 8.15 a.m. I was going to Orlem Church
for work alongwith my brother Lalji Mourya on one cycle. I
was running the cycle. My brother was sitting behind me. At
about 8.45 a.m. we reached near Citizen Bank on Marve
Road. As I wanted to take turn at left side, the speed of cycle
was reduced by me. One double-decker BEST bus came from
behind and gave dash to our cycle. I fell at the front side,
while my brother fell on the spot. The front side wheel of the
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bus went over his head and he died on the spot. I sustained
injury to my right elbow. Our cycle was lying there. The
accused before the court was driving the said bus. I went to
Malad Police Stn. and I was sent to Cooper Hospital for
treatment. Police recorded my complaint.”
(Emphasis added)
10. In this background, it is necessary to set out Paragraph No.9 of
the learned Trial Court’s Order where the contents of the Panchanama
has been set out. The said Paragraph No.9 reads as under :-
“9. The prosecution has brought on record the panchnama
dated 23.2.1995. The Ld. Advocate for the accused has given
consent to this panchnama which is marked Ex. P-3. I have
gone through the panchnama carefully in order to ascertain
whether it transpires any rashness or negligence on the part
of the accused. The panchnama Ex.P.3 highlights following
aspects which we can see to contribute the act of the accused
for the rashness and negligence.
a) As per panchnama dated 23.2.1995 the dead body
of the deceased brother of the complainant was
lying only at a distance of 5 feet from the
compound wall of the Citizen Bank. This indicates
that while taking left turn the bicycle was being run
by the extreme left side of the road. That is why the
dead body was lying only at 5 feet distance from the
compound wall. On the other hand, we can say that
the bus had gone to the extreme left inspite the bus
could have been driven to the middle portion of the
road and the accident should have been avoided.
b) The distance of the bus stop is shown at 42 feet
away from the dead body of the brother of the
complainant.”
11. Thus, what is seen from the Panchanama is that the dead body of
the deceased was lying at a distance of only 5 feet from the compound
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wall of Citizen Bank and on the basis of this the learned Trial Court has
observed that the bus had gone to the extreme left side of the road,
when the bus could have been driven on the middle portion of the road
and the accident could have been avoided. However, it is required to be
noted that even the Panchanama also records that the bus stop was only
42 feet away from where the dead body of the deceased was lying.
Thus, it is very clear that the bus had just left the bus stop and therefore
the bus was on the extreme left side of the road.
12. In these circumstances, there is substance in the contention of Mr.
Deshmukh, learned Counsel appointed to represent the Applicant that
that the evidence on record do not conclusively show that the Applicant
was driving the bus in a rash and negligent manner, and further that, at
least, the benefit of doubt should have been given to the Applicant.
13. This is a case where, admittedly, as recorded by the learned Trial
Court, compensation has been paid to the family of the deceased
pursuant to the Order of the learned Motor Accident Claims Tribunal.
14. Perusal of the both the Judgments and Orders of the learned Trial
Court as well as the learned Appellate Court, do not show that the
aspect of benefit of doubt has been taken into consideration.
15. Thus, in the facts and circumstances, the Judgment and Order
dated 27th September 2002 passed by the learned Chief Metropolitan
Magistrate, 24th Court, Borivali, Mumbai in Case No.346/P/1995 as
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also the Judgment and Order dated 16th January 2003 passed by the
learned Additional Sessions Judge, Greater Bombay in Criminal Appeal
No.167 of 2002 are quashed and set aside, by giving the benefit of
doubt to the Applicant.
16. The Criminal Revision Application is disposed of accordingly.
17. This Court places on records its appreciation for the assistance
rendered by Mr. Veerdhawal Deshmukh, learned Counsel appointed to
represent the interest of the Applicant.
[MADHAV J. JAMDAR, J.]
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