Mehmud Mohammed Chabukswar vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1998 Supreme(Bom) 324

IN THE HIGH COURT OF BOMBAY
Sahai Vishnu Das Chandrashekhara T.K., JJ.
Mehmud Mohammed Chabukswar .... Appellant.
Versus
State of Maharashtra.... Respondent.
Criminal Appeals Nos. 892 of 1984 513 of 1985, decided on 22-6-1998.
Advocates appeared :
S.G. Samant, in Cri.Appl. No. 892/1984, for appellant.
S.R. Borulkar, A.P.P., in Cri.Appl. No. 892 /1984, for respondent in Cri.Appl. No. 513/1985, for appellant.
Y.H. Menon, in Cri.Appl. No. 513/1985, for respondent.

Headnote:(1) Indian Penal Code. 1860 - Sections 304-A and 279 - Death by negligence - Rash and negligent driving - At martial time bus driven by accused had go passengers Flood - water was passing over bridge through which bus was to go - There was water upto level of five feet over bridge - All danger marks were under water - One Irani who came in motor cycle advised accused not to drive bus over bridge and deboard passengers - Accused unleaded, started driving bus and when bus came near bridge eyewitnesses passengers jumped into water and escaped - Bus went ahead for five to 10 feet and fell into Nala on account of impact of flood water and drowned - Twenty three persons died - Trial court believe eye-witnesses who escaped Conviction justified - Prosecution clearly established on account of rash and negligent driving of accused caused loss of 23 human lives – Non-examination of person who warned/ advised accused not to take bus over bridge not fatal- All passenger-eyewitnesses were independent witnesses who has no malice against accused - Plea as to bonafide error of judgment not acceptable - Conviction upheld.
       Held: Perusing the entire material on record including the evidence of the prosecution witnesses we are implicitly satisfied that the prosecution has established that on account of the rash and negligent manner in which the appellant was driving the bus 23 human lives were lost. (Para 8)
       Even if the evidence of Gulab P.W. 4 is eliminated because in her statement under section 161 Cr. P.C. she did not state that there was a lot of water over the bridge a person, came and asked the appellant not to take the bus through the water there remains the clinching evidence of Eknath, Ashok and Khanderao Raul. It should be borne in mind that all these witnesses are independent witnesses who had no malice against the appellant and the acquitted accused and in our view had not the prosecution allegations against them been true for no rhyme or reason they would not have deposed against them. (Para 10)
       We are implicitly satisfied that the evidence of the above 3 eye-witnesses clearly establishes the commission of offences punishable under sections 304A. 279 IPC and 116 of the Motor Vehicles Act, against the appellant. (Para I 1)
       The evidence discloses that there was no bona-fide error of judgment on the part of the appellant. It instead shows that his act was both grossly rash and negligent. The rashness and negligence is perse established. (Para 13)
       The evidence of Eknath Chaudhari clearly shows that in his presence Irani gave the said warning to the appellant and in such a situation the non-examination of Irani is of no consequence. (Para 15)
       The act of the appellant in our judgment was an extremely callous and reckless one. With, water of the depth of five feet flowing over the bridge and despite the warhing of Irani the appellant without any signal from the conductor chose to drive the bus resulting in its falling down in the Nala due to the pressure of the water, leading, to the loss of 23 human lives. In our view he deserves no sympathy. (Para 1 7)
       (ii) Code of Criminal Procedure- 1973 - Section 378 - Appeal against acquittal - Possibility of different view not ground to convert acquittal into conviction.
       Held: Although the Criminal Procedure Code makes no distinction between the powers of the appellate court in an appeal against conviction from those in an appeal against acquittal but the case law which has crystallized as a result of catena of decisions of the Apex court is that interference in an appeal against acquittal is to be only made if either the findings on facts are grossly unreasonable or the order of acquittal is manifestly illegal resulting in failure of justice. The Apex court, times out of number, has held that in an appeal against acquittal if the view taken by the trial court is a view which can be categorised as a possible view then the mere circumstance that had the appellate Court been the trial court it would have taken a different view would be no reason to reverse the order of acquittal. (Para 7)

JUDGMENT - SAHAI VISHNU, J.:---Two persons viz. Vasant Khanderao Bade and Mehmud Mohammed Chabukswar were tried for offence punishable under section 304, Part II read with sections 34, 279 read with sections 34, 337 read with section 34, Indian Penal Code, section 89 read with section 112 and section 116 of the Motor Vehicles Act, by the IVth Additional Sessions Judge, Thane, in Sessions Case No. 323 of 1982. Vide judgment and order dated 21-9-1984, the learned Judge, acquitted Vasant Khanderao Bade, but convicted and sentenced Mehmud Mohammed Chabukswar in the manner stated hereinafter :

(i) Under section 304-A, Indian Penal Code to R.I. for 2 years and to pay a fine of Rs. 50/- in default to undergo 7 days R.I.

(ii) Under section 279, I.P.C. to 6 months R.I. and to pay a fine of Rs. 50/- in default to undergo 7 days R.I.

The substantive sentences were directed to run concurrently.

Criminal Appeal No. 892 of 1984 has been filed by Mehmud Mohammed Chabukswar against his aforesaid convictions and sentences.

Criminal Appeal No. 513 of 1985 has been preferred by the State of Maharashtra against the acquittal of Vasant Khanderao Bade for the offences, referred to above.

2. In short the prosecution case runs as under:

Appellant Mehmud Mohammed Chabukswar and acquitted accused Vasant Khanderao Bade were working as driver and conductor respectively in Maharashtra Road Transport Corporation, On 4-8-1980. At about 6.45 a.m. that day, they took a bus from Dahanu to Bordi. The said bus was being driven by the appellant and acquitted accused was its conductor. At about 9.45 a.m. it reached Gholwad where constable Eknath Choudhari P.W. 1 and Head Constable M.K. Gaikwad, along with accused Ramu Raza Khurada boarded it. There were about 10 to 12 passengers in the bus. The bus used to stop on every bus stop and some passengers used to alight from it and some board it. At about 10.30 a.m. it came near Kankradi Nala Bridge. At that time there were 30 passengers in it. Appellant Mehmud Mohammed Chabukswar who was driving the bus stopped the same. At that time flood water was passing over the bridge and the danger signs on the bridge were under water. There was water up to the level of five feet over the bridge. One Irani (not examined) came on a motor cycle from Masoli side and told the appellant not to take the bus from the bridge as there was lot of water over the bridge. He further told him that the passengers sitting in the bus be advised to proceed via the railway bridge. The appellant did not listen to the advice of Irani, started the bus and took turn towards the bridge. Thereafter the acquitted accused Vasant Khanderao Bade rang the bell twice which was a signal to start the bus. The bus came under water near the bridge. At that time the road was not visible. Consequently, Eknath Ghoudhari along with the accused Ramu Raza Khurada opened the exit door of the bus, jumped inside the water and came on the road. The bus went ahead for about 5 to 10 feet and thereafter fell in the Nala on account of the impact of the flood water. The passengers, excepting five, who came out from the emergency door of the bus also fell down in the Nala. Twenty three of them died.

3. The F.I.R. of the incident was lodged by Dattatraya Ramkrishna Rao, P.W. 7, Deputy Superintendent of Police, some times after 11 a.m., the same day at Dahanu Police Station.

4. The investigation was conducted in usual manner by Dattatraya Ramkrishna Rao, P.W. 7, and after completing it he charge-sheeted the appellant and the acquitted accused.

5. The case was committed to the Court of Sessions in due course. In the trial Court the appellant and acquitted accused were tried for offences mentioned in para 1. They pleaded not guilty and claimed to be tried.

During trial, the prosecution examined 7 witnesses; four of them viz. Eknath Chaudhari, Ashok Apte, Khanderao Raut and Gulab Nayak, P.Ws. 1 to 4 respectively, were examined as eye-witnesses. In defence no witness was examined.

The learne

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