Dismissed

State v. Mohd. Makbul Mod. Ismile v Mahamad Makbul Mahamad Ismile.

Bombay HC18 Oct 2004APEAL/135/1989

Case brief

AI extract

What is this about?

The High Court holding that due to absence of site map or photographs essential for understanding case nature and topography, the Trial Courts rightly acquitted the accused driver and驳回the State's appeal against the acquittal under Section 304-A IPC.

What did the court decide?

The criminal appeal was dismissed with no order as to costs.

State vs. Mohd. Makbul Mod. Ismile Vs Mahamad… — Criminal Trial and Appeal | Bombay HC (2004)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.135 OF 1989

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The State of Maharashtra

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...Appellant

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Vs.

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Mohamad Makbul Mohamad Ismile

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...Respondent

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Mr.D.S.Mhaispurkar A.P.P.

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Mr.T.E.Mane for Respondent

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CORAM: SMT.RANJANA DESAI & A.S.OKA,JJ. DATE : OCTOBER 18, 2004.

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ORAL JUDGMENT : (PER ABHAY S.OKA,J.)

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1.	By	this	Appeal	agai	nst	acquittal,	the	State	of Ma	harshtra
has	taken	exc	eption	to	the	Judgment	and	Order	dated	31st
October		1988	passed	by	the	learned		Judicial	Magistrate	First
Class,		Madha,	Dist	rict		Solapur		by	which	the

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Respondent-accused was acquitted of the offence punishable

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under Section 304-A of the Indian Penal Code.

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2.	The	Respo	ndent-ac	cused	is	the	driver	of	Truck	No.ABT
1202.	On	3rd	June	1986	at	10.00	a.m.	the	deceased	Sahebrao
Changdeo	and	M	ahadeo	Cha	ngdeo	Sawant	we	re travelli	ng b	y a
motor	cycle	bea	ring	the	CND	5417	on	national	highway	No.9.
When	the	motor	cycle	was	near	the	bus	stop	of T	elangwadi,
Taluka	Madha,	D	istrict	So	lapur,	the		Respondent	who	was
driving	the	truck	in	a	rash	and	ne	gligent	manner	dashed

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against the said motor cycle. As a result of injuries sustained in the accident, both the persons travelling on motor cycle died. The case of the prosecution is that the Respondent by doing a rash and negligent act not amounting to culpable homicide has committed an offence punishable under Section 304 A of the Indian Penal Code. By the impugned Judgment and Order the learned Judicial Magistrate acquitted

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the Respondent of the offence punishable under Section 304-A

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of Indian Penal Code.

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3.		Shri	Mhaispurk	ar lear	ned A	.P.P.	fo	r the		S	t	a	te		su	bmitted
that	there	was	no r	eason	to dis	card	the	testimo	ny			o	f		P.	W.No.1
Vishwa	srao	D	attatraya	Kachare	and	P.W.	No.5	Navna	th				W	ag	ag	who
were	eye	witnes	ses to	the	incident	.	He	submi	tted				t	ha	t	before
the	accident	the	motor	cycle	was	ahead	of	the	truc	k				d	riven	by
the	Res	pondent.	W	hile a	ttempting	to	take	turn	th	e				d	rive	r of
the	motor	c	ycle	had give	n signa	l by	h	and.			I	g	no	rin	g	the
signal	g	iven	by the	driver	of	the	motor	cycle		t	h	e			Res	pondent
drove	his	t	ruck	in rash	and	negligent		manner			a	n	d			dashed
against		the	motor	cycle	thereby	causi	ng	serious	i	n	j	ur	ie	s		to
both	the	per	sons on	the	motor	cycle	whic	h resu	lted				in			their
death.	H	e	submitted	that	if	the	evi	dence	o	f					all	the

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witnesses is considered, guilt of the Respondent was

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established.

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4. Shri	Mane	the	learned	Couns	el appearing	for	the
Respondent	submitted	that	the	learned	Magistrate	has	recorded

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cogent		reasons	fo	r disca	rding	the	evide	nce	on	record.	He
submitted		that	the	acciden	t	took	place	due	to	negligence	on
the	part	of	the	driver	of	the	motor	cycle	and	there	is no
evidence		against		the	Re	sponden	t.	He,	the	refore,	submitted

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that no interference is required in an Appeal against the

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acquittal.

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5.	We	have	considered	the	r	iv	al	submiss	ions.	A	t	the	outset,
it is	t	o	be noted	that	the		prose	cution	has	not	p	laced	on
record	any	map	showing	the	sit	e	of	the	a	ccident.		Con	sidering
the n	ature	of	the	case		m	ade	out		by t	he	pros	ecution,
production	of	the	map	was	abso	lu	tely	essen	tial	with	a	view	to
understand		the	topography	and	lo	c	ation	of	the	road	ne	ar	the
site	of	the	accident.		The		learn	ed M	agistr	ate	has		rightly
criticised	the	Inve	stigating	Officer		f	or	not	dra	wing	a	map	or
for	not	taki	ng photog	raphs	of		the	scene	of	occurr	ence.		In
absence	of	any	sketch	or	ma	p	of	the	spot	of	inci	dent,	we

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found it difficult to appreciate and understand the evidence

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led by the prosecution.

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6. P.	W.No.1	a	nd	P.W.n	o.5 a	re	the only	e	ye	witnesses.
P.W.No.1	Vishwas	s	tated	that	the		motor cycle	of	the	deceased,
a bus	of	the	State	Ro	ad Tran	sp	ort Corporation	and	the	truck
were c	oming	from	the	direc	tion of		Pune. There	is	a	road for
approaching	the		village		Telangwa	di	from the	highw	ay.	He
stated	that	the	driver	of	the	m	otor cycle had	giv	en	a signal
by his	hand	fo	r takin	g	a right		turn. He	stated	that	S.T.Bus

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behind		the	motor cycle	stopped	a	t the	bus	stop	and	th	truck
driven	by	the	Respondent	which	was	behind	the	bus	gav	e	a dash
to	the	mot	or cycle.	P.W.No.	5	Navnath	also	depo	sed	that	the
accident		took	place w	hen the		motor	cycle	was	turn	ing	towards
village		Telangw	adi. He	claims	to	be	working	by	the	side	of

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Highway at a distance of 200 feet away on the western side of

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S.T.Bus stop of Telangwadi at the time of accident.

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7.	Exc	ept the			aforesai	d two		witnesses	there	ar	e	n	o	eye
witnesses.		It	is		pertin	ent t	o	note	here	that		bot	h	the
witnesses		have		not	dep	osed th	at	the	Resp	ondent	was			driving
the	truck	in		rash	and	negligent		manner	or	in a		very		high
speed.		The c	as	e	of	both th	e	witness	es is	that		the		motor
cycle	was	taki	ng	a	righ	t turn		at the	tim	e of	the			accident.
According	th	e said		witne	sses	there		was a	S.T	.Bus	ahea	d	o	f the
truck	a	nd the		incid	ent	occurred		after	the	S.T.Bu	s	sto	ppe	d on
the	left	side of		the	road	near	t	he Bus	Stop	.	If	this		is the
only	eviden	ce whi	ch		is	brought		on	reco	rd,	it	i	s	very
difficult	to	record		a	find	ing th	a	t the	Re	spondent		was		driving
the tru	ck	in rash		and	negl	igent m	a	nner.	This	is	not		the	case

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where any negligence on the part of the Respondent is

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established on evidence.

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8.		Perusal	of	the	Judgment	and	Order	of the	Tr	ial	Court
shows		that	the	entire	evidence	on	record	has	been	cons	idered
by	the	Trial	Court.	T	he Trial	Court	has	accepted	the	case	of
the		Respondent		that	the offence	was	not	establish	ed	and	it

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was	purely	an	accide	nt	which	has	taken		place	while	the	motor
cycle	was	taking	a	rig	ht	turn.	Af	ter	exami	ning	the	evidence
on	record,	it	is	impo	ssible	to	come	to	the	concl	usion	that
there	was	a	rash	or	neg	ligent	driving	on	the	part	of	the

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Respondent. No other view is possible to be taken on the

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basis of the evidence on record.

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Hence, there is no merit in the Appeal. The Appeal is

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dismissed with no order as to costs.

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( SMT.RANJANA DESAI,J. )

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( ABHAY S.OKA,J. )

State v. Mohd. Makbul Mod. Ismile v Mahamad Makbul Mahamad Ismile.

Case brief

What is this about?

What did the court decide?

State v. Mohd. Makbul Mod. Ismile v Mahamad Makbul Mahamad Ismile.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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