1980 Supreme(Bom) 232

IN THE HIGH COURT OF BOMBAY
P.S. Shah, J.
Ashok Mahadeo Mahajan .... Petitioner.
Versus
State of Maharashtra .... Respondent.
Criminal Revision Application No. 414 of 1980, decided on 30-9-1980.
Advocates appeared :
R.M. Agarwal, for petitioner.
S.S. Parkar, P.P., for State.

The prosecution must prove the contents of a panchanama by examining either the panch witness or the Investigating Officer, and the provisions of section 294 of the Code of Criminal Procedure, 1973, cannot be used to circumvent the provisions of the Evidence Act.

Headnote:

RASH AND NEGLIGENT DRIVING - PANCHANAMA - ADMISSIBILITY - SECTION 294 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - INTERPRETATION - CIRCUMSTANTIAL EVIDENCE - APPRECIATION.

Fact of the Case:

The petitioner, a State Transport driver, was convicted by the trial court and the appellate court for causing the death of a girl by rash and negligent driving under sections 304-A of the Indian Penal Code and 116 of the Motor Vehicles Act. The prosecution relied on the evidence of two eyewitnesses, a panchanama of the scene of the offence, and the testimony of the Head Constable who recorded the panchanama.

Finding of the Court:

The High Court held that the panchanama was not admissible in evidence as the prosecution failed to examine any of the panchas or the Investigating Officer to prove its contents. The Court also held that the circumstance that the petitioner did not stop the bus when the eyewitnesses raised their hands to request him to stop was not an incriminating circumstance as the bus was not supposed to stop at that bus stop and the eyewitnesses were on the opposite side of the road. The Court further held that the fact that the bus had travelled hardly 100 feet after a sharp turn supported the defense's case that the petitioner was not driving at a fast speed.

Issues: 1. Whether the panchanama was admissible in evidence without examining any of the panchas or the Investigating Officer? 2. Whether the circumstance that the petitioner did not stop the bus when the eyewitnesses raised their hands to request him to stop was an incriminating circumstance? 3. Whether the fact that the bus had travelled hardly 100 feet after a sharp turn supported the defense's case that the petitioner was not driving at a fast speed?

Ratio Decidendi: 1. The Court held that the panchanama was not admissible in evidence as the prosecution failed to examine any of the panchas or the Investigating Officer to prove its contents. The Court relied on the decision of the Division Bench of the High Court in Ganpat Raoji Surayavanshi v. State of Maharashtra, which held that section 294 of the Code of Criminal Procedure, 1973, which dispenses with the formal proof of certain documents, cannot be used to circumvent the provisions of the Evidence Act, particularly the provisions relating to the proof of certain facts which can only be done by examining witnesses. 2. The Court held that the circumstance that the petitioner did not stop the bus when the eyewitnesses raised their hands to request him to stop was not an incriminating circumstance as the bus was not supposed to stop at that bus stop and the eyewitnesses were on the opposite side of the road. The Court also noted that there was no evidence that the eyewitnesses tried to tell the driver by raising shouts that the girl was crossing the road. 3. The Court held that the fact that the bus had travelled hardly 100 feet after a sharp turn supported the defense's case that the petitioner was not driving at a fast speed. The Court noted that the petitioner applied the brakes after the impact and not earlier, as he may not have noticed the presence of the girl towards the eastern side of the road.

Final Decision: The High Court allowed the petition, set aside the impugned orders of the courts below, and acquitted the petitioner.