# NAGESHWAR SHRI KRISHNA CHOUBE v. STATE OF MAHARASHTRA

- **Citation:** [1973] 2 S.C.R. 377
- **Court:** Supreme Court of India
- **Decided:** 1972-09-19
- **Case number:** Cr. A. No. 209 Of 1969
- **Bench:** J. M. Shelat, I. D. DUA ANO K. R. KHANr;A
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nageshwar-shri-krishna-choube-v-state-of-maharashtra-5856
- **Pages:** 12

## Headnote

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Indian Penal Cocle (Act 45 of 1860) s. 304 A-Rash and negligent
clriving--Available 111aterial cvide11ce not produr.ed
by prosecu1ionReliance on
nature of c.ccident by
Courts--Propriety-Rejection by
Collrts of defence e1·ide11ce-l1npropriety of use of intetnperate language by
Courts.
The appellant was driving a bus which mounted the footpath, dashed
against an electric pole, and a person, who was near the electric pole, was
knocked down dead as a result of the pole falling on him.
Four other
persons were injured by the bus hitting them. Three of these persons were
cxamimd as prosecution witnesses, but the evidence on behalf of the prosecution did not throw any right on the prec.se circumstances in which
the bus happened to moμht the footpath.
According to the appellant, be
was driving the bus at a moderate speed when suddenly the fourth of the
injured persons, \Vho \'/as not examined as a witness, came running in
his attooipt to cross the rood. The appellant took a turn to avoid him and
also applied his brakes, but the accident happened because of circumstances
beyond his control. Ho also examined one witness on
his
behalf who
generally supported his version. The trial court passed strictures on the
defence witness and convicted the appellant under s. 304A l.P.C. On
appeal, the High Court, while emphasising on the perfunctory character
of the investigation, also passed strong strictures against the defence wit·
ness and confirmed the conviction of the appellant, on the grounds, that
:he electric pole would not have fallen unless the bus was going at a high
speed when it hit the pole, that assuming the pedestrian came running
across the road the appellant was in a position to sec him and could have
come to a complete stop if he was reasonably careful, and that the appellant must have continued to run the bus at 'full speed expecting the pedestrian to stop. The High Court wanted to examine the injured pedestrian
as a Court witness, but did not do as the defence objected.
Allowing the appeal to this Court under Art. 136 of the Constitution,
HELD : (I) The High Court should have examined the court witnc.•.
The failure to do so on the ground that the defence objected to such
e.amination was not a proper approach, because, parties cannot control
the Court's discretion to h>vc any additional evidence considered by it
to .be nece"!ary in the int?rcsts of justice. Justice ~ould fail not only by
Ulljust conviction of the rnnoccnt but also by acquittal of the guiltv for
unjustified failure to produce available evidence. [387G-H]
·
(2)
The fact that thi• was not the first \ime when
investigation iA
• case like this had been uttterly perfunctory was no
ground for cOtl-
•icting the accused. [386G-H]
(3) Asiuming that tjle High Court was right that the road at the time
was more .than normolly crowded it was still a question for consideration
ai to· from how much diotance the appellant would have been able to see
a pedestrian who was ru"ning to the road, an aspect which was not adverted to by the High Court. [386B-F]
378
SUPREME COURT RBPO!lTS
(1973] 2 S.C.R.
( 4) The jud&ffiCnt of the trial Court and of the High Court proceed
A
principally on
assumptions not fully
supportab~e on the material o~
the record.
Merely because the nature of the acctdent, prima facle requires an explan2.tion from the driver wou1d not be sufficient to sustain. his
conviction, if the truth of his explanation which was not liable to rejection outright could have been appropriately judged if the evidence left
out by the prosecution had been produced. [387 A-El
(5) Evidence which was material,
such as the
evidence
of the
B
pedestrian and the passengers in the bus had not been collected by the
investigating agency, and the reasons given for not examining the injured
pedestrian arc wholly unconvincing.
The evidence actually
produced,
1·
has not established the appellant's guilt beyond re,,.,onahle doubt. [337C-FJ
(6) The Investigating Officer has acted withou

## Text

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NAGESHWAR SHRI KRISHNA CHOUBE
v.
STATE OF MAHARASHTRA
September 19, 1972
217
8
[J. M. SHELAT, I. D. DUA ANO K. R. KHANr;A, JJ.J
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Indian Penal Cocle (Act 45 of 1860) s. 304 A-Rash and negligent
clriving--Available 111aterial cvide11ce not produr.ed
by prosecu1ionReliance on
nature of c.ccident by
Courts--Propriety-Rejection by
Collrts of defence e1·ide11ce-l1npropriety of use of intetnperate language by
Courts.
The appellant was driving a bus which mounted the footpath, dashed
against an electric pole, and a person, who was near the electric pole, was
knocked down dead as a result of the pole falling on him.
Four other
persons were injured by the bus hitting them. Three of these persons were
cxamimd as prosecution witnesses, but the evidence on behalf of the prosecution did not throw any right on the prec.se circumstances in which
the bus happened to moμht the footpath.
According to the appellant, be
was driving the bus at a moderate speed when suddenly the fourth of the
injured persons, \Vho \'/as not examined as a witness, came running in
his attooipt to cross the rood. The appellant took a turn to avoid him and
also applied his brakes, but the accident happened because of circumstances
beyond his control. Ho also examined one witness on
his
behalf who
generally supported his version. The trial court passed strictures on the
defence witness and convicted the appellant under s. 304A l.P.C. On
appeal, the High Court, while emphasising on the perfunctory character
of the investigation, also passed strong strictures against the defence wit·
ness and confirmed the conviction of the appellant, on the grounds, that
:he electric pole would not have fallen unless the bus was going at a high
speed when it hit the pole, that assuming the pedestrian came running
across the road the appellant was in a position to sec him and could have
come to a complete stop if he was reasonably careful, and that the appellant must have continued to run the bus at 'full speed expecting the pedestrian to stop. The High Court wanted to examine the injured pedestrian
as a Court witness, but did not do as the defence objected.
Allowing the appeal to this Court under Art. 136 of the Constitution,
HELD : (I) The High Court should have examined the court witnc.•.
The failure to do so on the ground that the defence objected to such
e.amination was not a proper approach, because, parties cannot control
the Court's discretion to h>vc any additional evidence considered by it
to .be nece"!ary in the int?rcsts of justice. Justice ~ould fail not only by
Ulljust conviction of the rnnoccnt but also by acquittal of the guiltv for
unjustified failure to produce available evidence. [387G-H]
·
(2)
The fact that thi• was not the first \ime when
investigation iA
• case like this had been uttterly perfunctory was no
ground for cOtl-
•icting the accused. [386G-H]
(3) Asiuming that tjle High Court was right that the road at the time
was more .than normolly crowded it was still a question for consideration
ai to· from how much diotance the appellant would have been able to see
a pedestrian who was ru"ning to the road, an aspect which was not adverted to by the High Court. [386B-F]
378
SUPREME COURT RBPO!lTS
(1973] 2 S.C.R.
( 4) The jud&ffiCnt of the trial Court and of the High Court proceed
A
principally on
assumptions not fully
supportab~e on the material o~
the record.
Merely because the nature of the acctdent, prima facle requires an explan2.tion from the driver wou1d not be sufficient to sustain. his
conviction, if the truth of his explanation which was not liable to rejection outright could have been appropriately judged if the evidence left
out by the prosecution had been produced. [387 A-El
(5) Evidence which was material,
such as the
evidence
of the
B
pedestrian and the passengers in the bus had not been collected by the
investigating agency, and the reasons given for not examining the injured
pedestrian arc wholly unconvincing.
The evidence actually
produced,
1·
has not established the appellant's guilt beyond re,,.,onahle doubt. [337C-FJ
(6) The Investigating Officer has acted without the
requisite sense
oi responsibility essential ior fair and just
investigation into
serious
accidents like the present.
He had not taken photographs
of the posC
ition of the vehicle, the electric pole. and the position of the victim, but
had produced, instead, a most unsatisfactory rough sketch.
There was co
evidence of rekvant factors such as the height of the kerb, the state of
traffic on the road, the condition of the brakes. and of the probable speed
of the bus which could have been ascertained by measuring the tyre marks
on the road. [3830-H; 386A-C]
(7) Assuming the testimony of the defence witness did not impress
th(' c011rt~ belo"v they should have expressed their opinion in temperate
bnguage with judicial restraint.
[3880]
CIVIL APPELLATE JURISDICTION : Cr. A. No. 209 Of 1969.
Appeal by special leave from the judgment and order dated
August 14, 1969 of the Bombay High Court in Criminal Appeal
No. 552 of 1968.
H. R. Pardivala, D. N. Mishra and J. B. Dadachanji, for the
appellant.
S. K. Dho/akia and B. D. Sharma, for the responde!lt.
The Judgment of the Court was delivered by
DuA, J.-This is an appeal by special leave under Art. J 36
of the Constitution from the judgment of the Bombay High Court
upholding on appeal the appellant's conviction by the Presidency
Magistrate, 12th Court, Bandra, Bombay under s. 304A, l.P.C.
and sentence of rigorous imprisonment for 18 months and fine of
Rs. 1,500/-, in default further, rigorous imprisonment for four
months.
According to the presecution, on July 2, 1967, at about 4.15
p.m. the appellant was driving a B.R.S.T. motor bus bearing no.
BHQ 1019 along the southern side of Tilak Road from east to
west. When the bus suddenly mounted the southern footpath and
dashed against an electric pole feiling it fell 0 down, the bus stopped. A person .who was near the electric pole was knocked dcwn
dead as a result of the electric pole falling on· him.
His right
hand was severed, his head crushed with the brain matter sticking
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NAGESHWARA I', MAHARASHTRA (Dua, J.)
379
on to the wall near the electric pole. It was a double decker
bus. One Harbansing Ramsingh (called bhaiya) also sustained
injuries as a result of having been hit by the bus.
According to the appellant, he was driving the bus at a moderate speed from east to west along the southern side of Tilak
Road when suddenly a bhaiya, in his attempt to cross the road,
came m:ar the right wheel of the bus. He was noticed by the appellant when he was about 3 ft. away from the front right portion
of the bus. In order to avoid him the appellant applied his brakes
and took a tum to the left, thereby mounting the southern footpath and it was in these circumstances that he struck against the
electric pole. The accident, according to his plea, occurred because of circwnstances beyond his control.
The
Presidency
Magistrate did not believe the defence version and observed;
"According to the accused he was going at a speed
as if he was approaching a bus stop.
If that were so
and if Harbansing was crossing the road from north to
south as alleged by the defence and if the accused applied his brakes after seeing the bhaiya, then it is hard
to see how the bus did not stop there and then.
The
bi.; however went on to the southern footpath and dashed against the electric pole with such a force that it
was uprooted. The fact that the accused was not able
to halt the bus there and then show that the bus was in
good speed.
The accused could not control its speed
in time. If therefore hold that the pros~ution has established its case against the accused."
On this reasoning, finding the accused guilty, the trial court convicted and sentenced him, as already noticed. ,,1.t may be pointed
out that the accused was also charged under~~- 273 and 338,
I.P.C. but the court did not consider it proper to impose separate
icntcnccs under these sections ..
On appeul to the High Couft''thc learned Chief Justice, after
considering the arguments urged before him. observed that in the
circumstances of the case it was impossible that Harbansing could
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come within 3 ft. of tlie bus in question before the accused first
saw him. Even after the accused had realised the dnneer he could
have, according to the learned Chief Justice, avoided climbing
on to the footpath and injuring the pedestrians there, after knocking down the electric pole, had it not been for the speed of the
bus which prevented him from controlling the vehicle. The
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learned Chief Justice considered it unimaginable that the electric
pole would be completely uprooted unless the bus was in consider_ ..,ble speed when it hit the pole, the heavy nature of the vehicle
notwithstanding.
This by itself, the High Court observed, was
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SUPREME COURT REPOATS
[1973) 2 S.C.R.
one of the factors which establish the rashness and negligence of
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the accused.
The High Court opined that it must have taken
quite some time for the bhaiya to cross 35 ft. of the road (the
road was stated to be 35 ft. wide) even though he was running.
If,· therefore, the man stated running from the northern end of
the road the vehicle must have been at least 50 or 60 ft. away
from the point of impact. The driver of the bus, had he been
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reasonably careful, could have brought the bus to a complete stop
m a distance of about 50 or 60 ft. and avoided the collusion oven
assuming the bhaiya was running fast.
This is
another factor
which, according to the learned Chief Justice, reftected the negligence on the part of the accused person.
The defence witness
(K. G. Joshi) deposed that the accused had not blown any horn.
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This ver:ion ~!so, in the opinion, of the High Court, lent some
'upport to ti;e negligence on the part of the accused.
The High
•Court in the end observed :
"Though no doubt the l:urden of proof in a criminal
trial is upon the prosecution, the facts
pertaining
to
the accident in the present case are so eloquent
and
glaring that they speak for themselves.
Even assuming
that !Jarbansing came running from the north to the
south across the road a·> the accused says, he was in a
position to have se~n him start running and to have
brought his bus under control within sufficient time to
avoid the accident but he was in a hurry to reach his
destination within time and so the accused continued
to run his bus at the same speed full well knowing that
if the pedestrain contir~ued to cross the road he would
do so at his peril and therefore expecting him to stop.
It is that attitude of mind which has led to this accid~nt and amounts to rashness or negligence on the part
of the accused.
Even taking into account the explanation which the accused has given, I am unable to sec
how the accused cannot be held to have driven rashly
or negligently."
The High Court was on the whole satisfied upon the evidence that
the conviction was justified.
In this· Court Shri Pardiwala has, in an elaborate argument.
taken us through the entire record of the case and has submitted
that in a case of rash and negligent driving the prosecution has ta
prove by evidence beyond reasonable doubt that the accused wa1
rash and negligent and the mere fact that the accident has taken
place in a manner which does not seem to be normal is not by
itself sufficient to cast on the accused person the onu; of estab-
.fohing his in1vxc:''·"-'·
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NAGESHWARA v. MAHARASHTRA (Dua, J.)
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In cases of road accidents by fast moving vehicles it is ordinarily diflicult to find witnesses who would be in a position
t•1
affirm positively the sequence of vital vents during the few moments immediately preceding the actual accident, from which its
true cause can be ascertained. When accidents take place on the
road, people using the roaJ or who may happen to be in close
vicinily would normally be busy in their own pre-occupations and
in th~ normal course their attention would be attracted only hy
the noise or the disturbance cau;;cd by the actual impact resulting from the accident itself. It is only then that they would look
towaras the direction of the noise and see what had happened. It
is seldom-and it is only a matter of coincidence-that a person
may already be looking in the direction of the accident and may
for that reason be in a position to see and later describe the sequence of events in which the accident occurred. At times
it
may also happen that after casually witnessi11g the occurrence
those persons may feel disinclined to take any further interest in
the matter, whatever be the reason for this disindination. If.
however, they do feel interested in going to the spot in their
curiosity to know something more then what they may happen to
see there, would lead them to form some opinion or impression
as to what in all likelihood must have led to the accident. Evidence of such persons, therefore, requires close scrutiny for finding out what they actually saw and what may ,be the result of
their imaginative inference.
Apart from the eye-witnesses,
the
only person who can be considered to be truly capable of satisfactorily explaining as to the circumstances leading to accidents like
the present is the driver himself or in certain circumstances to
some extent the person who is injured. In the present case the
person who died in the a,ccident is obviously not available for
giving evidence.
The bhaiya (Harbansing) has also not been
produced as a witness.
Indeed, failure to produce him in
this
case has been the principal ground of attack by Shri Pardiwala
and he has questioned the bona fides and the fairness of the prose·
cution as also the trustworthiness of the vetsion given by
the
other witnesses.
Six witnesses have been produced by the prosecution in support of its case.
We are going into that evidence which is normaUy not done in appeals unc!~r Art. 136 of the Constitution because in this case it was urged by Shri Pardiwala that there is
abs,olutely no evidence showing rashness or negligence
on the
part of the appellant and that the evidence \1ith regard to the
exact position in which the bus was actually found vis-a-vi~- the
dead body, soon after the accident, is also not trustworthy.
In
deed, according. to the learned counsel, both the trial court am!
382
SUPREME COUllT ltBPORTS
(1973] 2 S,C,R.
the High Court have been influenced more by the tragic conseA
quences resulting from the accident than the evidence on the ·
record.
P.W. 5 Kisan Appa Kasbe is the ma,n who is said to have
made. the report to tlle police about this accident. He appeared
in court on March 20, 1968 and stated that on July 2, 1967 at
3.45 p.m. white walking along the northern footpath from east
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to west towards Kodabad Circle he heard noise of impact of a:
vehicle and turning that side he saw a B.E.S.T. bus stationary on
ihe southern footpath and a bent electric pole. After pr<?ceeding
in that direction he saw a dead body under electric pole whose
hand was broken, and was lying near the pole. His skull was
also broken and brain matter was visible. The front portion of
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the bus and the wind screen were damaged with splinters on the
footpath.
He saw four injured persons.
Those injured persons .
were taken to the hospital in a single decker bus. He was contacted by the police at 8.30 p.m. on the same day at his residence
where his statement was recorded. This statement has been described by M. S. Patil, S.I. (P.W. 6) as first information report.
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Quite plainly that statement could not
~ the F.l.R. for the
simple reason that investigation had admittedly started on receipt
of information at 4.40 p.m. as sworn by P .W. 6. The statement
made by P.W. 5 at 8.30 p.m. at his residence would accordingly
fall under~. 161, Cr, P.C. and could only be utilised as provided
by s. 162, Cr. P.C. for contradicting him. OCthe four inj11red
persons mentioned by P.W. 5 three have appeared in court,
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namely, Shriman Yadav (P.W. 2), Mohan Rama (P.W .. 3} and
Bhondibai Babu (P.W. 4). P.W. 2 merely says that while he and
Mohan Rama (P.W. 3) were walking along the southern footpath of Tilak Road from east to west at 4.30 p.m. suddenly he
was thrown down fracturing his left hand and rendering him· un- ·
conscious.
He has not said
anything · more.
Mohan· Rama
F . ·
( P.W. 3) has deposed that he and Shriman Yada~ were walking ·
along the southern footpath when a B.E.S.T. bus came from behind and struck Shriman Yadav, thereby throwing him down.
Mohan Rama also fell down as a result of Shriman's impact.
Mohan Rama then took Shriman, who was μnconscious, tq the
hospital, where he was admitted as an indoor patient. Mohan
Rama was, however, treated and allowed to go· home. Mohan
llama had not seen the bus mounting the footpath. He only saw
the electric pole falling on the deceased. According to him, the
front left wheel of the bus was on the footpath and the front right
wheel was touching its kerb. The electric pole was not uprooted
but was cut at the base. Quite obviously, the evidence of these
two witnesses does not throw any helpful light on the precise circumstances in. which the bus happened to mount the footpath.
Dhondibai Babu (P.W. 4) has stated ·thai he was walking along
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NAGESHWARA l'. MAHARASHTRA (Dua, J.)
38 3
t~c southern footpath east.to wes_t at about 4 p.m. when suddenly
a B.E.S.T. bus knocked him down unconscious.
According to
him, the left front portion of the bus struck him. He has said
nothing more. If he became unconscious, it is doubtful if he
could reliably state that the left front portion of the bus had .
struck him.
The statement of Kisan Appa Kasbe (P.W. 5) has
-already been adverted to.
But he too, as one would
normally
expect a witness to such accidents, only looked in the direction of
the accident, when his attention was attracted as a result of noise
of the impact of the bus in question. There is thus no evidence
as to what compelled the driver to turn left which caused the bus
to mount the footpath and .. strike against the electric pole, thereby
causing injuries to the several persons, one of whom died at the
spot. Manohar Sadashiv, S.I., appearing as P.W. 6 has deposed
that at about 4.40 p.m. ou July 2, 1967 information was received
from the control room about the accident and that he then went
to the scene of the occurrence. He saw a double decker bus
. no. 03 stationary on the southern footpath with the front portion
of the bus damaged and the wind screen broken. He saw one
dead body lying below the electric pole with one hand severed
lying nearby and also b-roken skull with brain substance visible
:md lying on the road. · He drew up a panchanama and also a
rough sketch (Ex. PB). He sent the dead body to the City
Morgue and arrested the accused and sent him to the police
station. He then contacted the four injured persons in the hospital and the complainant, (meaning thereby P.W. 5) at his residence as late as 8.30 p.m. on the same day and recorded what he
describes to be, the first information report. Harbansing, one of
the four injured persons had, according to this witness, left Bombay the same night with the !esult that his statement could not be
recorded. In cross-examination he has explained that Ha1:bansing
was reluctant to make any statement because he wanted to go to
his native place where he was stated to be on the date of the
examination of P.W. 6 in court, which was March 20, B68.
P.W. l is the doctor who held the post-mortem examination on
the dead body. His evidence is not material for our purpose.
This is all the prosecution evidence led in the case.
We cannot
help expressing our surprise and regret at the manner in which
the investigation has been conducted.
The investigating officer
unfortunately did not care to have the photographs taken of the
position of the vehicle, the electric pole and the persons injured
and dead as a result of the accident. He did not care even to
take the measurement' of the height of the kerb, which in our
view, was a very relevant factor.
Nor did te care to get the
vehicle examined by a mechanic for the purpose of ascertaining
if its mechanism wa< in order and particularly if its brakes were
working properly. The rough sketch prepared by him is a highly
384
SUPREME COURT REPORTS
(1973] 2 S.C.R.
unsatisfactory document as it only gives us an extremely rough
idea of the position this is of little
assistance in determining
the question of the appellant's guilt in the criminal trial.
Kanu
Girdharlal Joshi, an LL.B: student, appeared as
D.W. 1.
He
claims to have seen the bus and the bhaiya immediately prior to
the actual accident. The bhaiya was crossing the road running.
The witness on seeing the bhaiya shouted to him to stop but the
bhaiya continued running: The bus then took a tum to its left,
mounting the footpath and causing the accident in question.
The learned Presidency Magistrate,. who tried and convicted
the appellant, and the High Court, which heard and dismissed
his appeal, have both held the appellant guilty almost exclusively
on the nature of the ac.cident and on the appellant's inability to
stop the bus on seeing the bhaiya who was attempting to cross
the road.
Both these courts. disbelieved D. W. t
They passed
strictures against him in very strong language and cast aspersions
even on his knowledge of law.
Shri Pardiwala complained that
the trial court had misread the prosecution evidence and the High
Court was influenced by a number of assumptions which cannot
be sustained on the material on the record, some of those assumptions being even contradictory, and this has resulted in grave miscarriage of justice. The condemnation of D.W. 1, K.G.
Joshi;
by the courts below in strong language is also unjustified and unfair to the witness, contended the counsel.
Stress was also laid
by the appellant's learned counsel on the opinion of the High
Court emphasising the utterly perfunctory character of the investigation and the false statements made by S. I. Patil, (P.W. 6), the
investigating officer.
Our attention was drawn to the following
observations in the judgment of the High Court :-
"Tilak Road at that hour of the day is more than
normally crowded.
In that crowded locality there are
shops on both sides and hundreds of people move about
on the footpaths.
There were. also several passengers
in the bus .and .the bus conductor. Yet this sub-Inspector has not cared to make any enquiry to find out from
anyone of , the persons round about, from anyone of
the pas~ngers or any one of the shopkeepers round
about how the accident occurred, with the result that
the prosecution has been able to give evidence only of
three persons who were injured and who in their very
statement say nothing about how the
accident took
place and of Kisan Appa Kasbe.
Even Kisan Appa
Kasbe's attention it appears was attracted towards the
incident by the sound of the impact of the bus with the
pole.
Notwithstanding this statement of each one of
these witnesses it is surprising that the
Sub-Inspector
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NAGESHWARA v. MAHARASHTRA (Dua, J.)
385
should not have pursued further investigation but
should have put up the case upon such evidence. What
is still worse is that one important person whose evidence was available and could have been examined was
not examined.
He is the injured person Harbansing.
He.was removed to the K.E.M. Hospital and was
under treatment there for a Jong time.
This is established upon the evidence of Dr. Kole P.W. L He had
a fracture of the jaw bone and six other injuries, and
being admitted to the hospital on 2nd July 1967 was dischargetl from the hospital on the 23rd August 1967
according to the evidence of Dr. Kole, Sub-Inspector
Patil was asked why Harbansing's statement was not
recorded and this is what he has stated Harbansing
Ramnarayan one ol the 4 injured left Bombay on the
same night.
His statement therefore would not be recorded'. Jn the face of the evidence of Dr. Kole it is
clear that this evidence of Sub-Inspector Patil is utterly
false bccnuse Harbansing was in no condition to move.
He was in hospital and remained in the hospital till
23rd August 1967 for almost a month and 26 days
after the accident and yet it is surprising to see this
·esponsible police officer saying that he could not record his statement because he left Bombay on the same
night.
One begin~ to wonder whether this Sub-Inspector made any enquiries at all about the whereabouts of
Harbansing.
In his cross-examination he has further
given a different reason.
He has stated 'Harbansing
was reluctant to make any statement as he wanted· to
go to his native place. He is at his
native place'.
Even this reason does not appear to me a satisfactory
reason at all. Even if he had gone away to his native
place, Harbansing could well have been contacted and
his statement recorded."
Shri Pardiwala submitted that on this observation alone the prosecution case should have failed.
We find there is considerable
force in this submission. The High Court has also observed that
no attempt had at all been made "to ascertain the probable
speed of the bu> by measuring the tyre marks on the road though,
according to the witnesses, the brakes were jammed and there was
a screaming sound as the bus came to a halt", adding, that even
the elementary precaution of having the bus tested for the efficiency of its brakes was not taken.
Though according to Shri
Pardiwala the observation ')f the High Court, that, the brakes
were jammed and there was a screaming sound, was not supported by evidence, in our opinion, assuming this observation to
SUPREME COURT REPORTS
[1973] 2 s.c.R.
be supported by evidence, it only senies to fortify the view of the
High Court that the investigation h~ bee~ C?nducted in a very
casual and superficial manner. The mvesugatmg officer seems to
have. acted without the requisite sense of responsibility essential
for fair and just police investigatiOJ,l into serious accidents like
the present, with the result that important evide!1ce
whi~h was
available and should easily have been forthcommg has not been
brought before the court for wholly inadequate-if not flimsyreasons. Examination of the marks of wheels on the road would
have been very useful in appreciating other evidence.
What is
more surprising is that even evidence on the state of the traffic on
the road at the relevant time and on the height of the kerb has
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not been produced by the prosecution. This evidence would have c
clearly helped the court in having a clearer picture of the position -
and in more satisfactorily appreciating the circumstances in
which the accident occurred. If there was meagre traffic, then,
there was a greater likelihood of the appellant being able to see
the. running bhaiya more clearly, whereas if .traffic was heavy
then there was a chance of the bhai);a emerging from behind
some vehicle. unnoticed by the appellant. Similarly the height of
the kerb was a relevant factor to be considered in fom1ing an
opinion about the likely speed of the bus. The prosecution failed
to appreciate the importance of these aspects and did not care to
adduce any evidence on them. This reflects a high degree of in·
effidency on the part of the
investigating agency.
The High
Court has, however, observed (perhaps on the basis of personal
knowledge of the learned Chief Justice who decided the appeal in
the High Court) that the road at that time was more than normally crowded. If that was so then it was a question for con·
sideration as to from how much distance was the appellant able
to see the bhaiya running, in his anxiety, to cross the road. The
High Court did not advert to this aspect at all.
Indeed, at one
place the High Court has observed that the appellant would hav~
noticed the bhaiya when he was running to cross the road. This
<:ould be possible only on the assumption that the traffic on the
road was not very heavy and it did not block the
appellant's
vision. The High Court has also observed that this was not the
first time when an investigation in a case where the public motor
vehicle belonging to a public body was involved in an accident
had been utlerly perfunctory. The fact that this was not the firsl
occasion of inefficient and perfunctory investigation in such cases.
could not, in our view, serve as an argument for placing premium
on the inefficiency of the investigating agency and for convicting
the accused which could only be done if the evidence had established- his guili beyond reasonable doubt.
No doubt when an accident like the present takes place one
naturally expects the driver concerned to explain the circum0
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NAGESHWARA v. MAHARASHTRA (Dua, J.)
387
stances in which he was obliged to take the bus on to ihe footpath
and to strike against the electric pole with such force,
thereby
killing one human being and injuring several others.
The satbfactory nature of the explanation to absolve him of his criminal
liability for the accident has, in such circumstances, to be
appraised in the light of the entire evidence on the record. The
onus of course remains on the prosecution and does not shift to
the accused. The evidence of the bus, however, having mounted
on to the footpath, which, in the normal course, does not happen, is admissible and has to be duly taken into account in understanding and evaluating the entire evidence led in the case and in
appraising the value of tlie explanation given by the accused for
his compulsion which resulted in the accident. The appellant's
explanation, even though not conclusive, does, in the absence o[
the testimony of the bhaiya and of at least some out of the
passengers said to have been travelling in the bus, who might
have been able to throw some helpful light on the relevant circumstances, seem to leave fair scope for reasonable doubt about
his guilt.
Whether the failure on the part of the investigating
agency to contact persons who would have given useful material
evidence. relevant for finding the truth was due to inefficiency or
was deliberate having been inspired by some other motive is nm
for us to speculate on the existing record. Suffice it to say that if
it appears as ii does in this case, that material evidence has n'1l
been collected by the investigating agency for reasons which arc
wholly unconvincing and the evidence actually produced, leave'
a serious lacuna in bringing hi~ guilt home to the appellant, th~n.
merely because the nature of the ~ccident prima facie requires an
explanation from the driver would not be sufficient to sustain hi'
conviction, if the truth of his explanation, which is not liable to
rej.ection outright, could have been appropriately judged if the
evidence left out by the prosecution had been produced. The
learne<;1 Chief . J u.stice. on appeal did advert to the possibility of
recorclmg bhaiya s evidence at that stage.
The idea was, however,. dropped because t~e ap~llant's counsel did not agree to
~xam.me him.
In our view, this was hardly a proper approach
m this case. Though we feel that in August, 1969, two year;
n!ter the .occurrence of July 2, 1967, the statement of Harbansmg, bhazya, who ~ad. never been interrogated by the investigatmi; agency was unhkely to be very helpful, nevertheless if tl:ii!
~1~ Court felt tha~ his evidence was ·necessary in the interest of
JUStlce, then, the witness could and should have been examined
as a court witness, the defence objection notwithstanding Parties
co~ld not. c?ntrol the c?urt's discretion to have before it further
ev1den~ 1f It was considered necessary for finding the truth for
pr?motJng t~e. cause of j~stice. Justice would fail not only by
un1ust conv1~t10~ of th.e mnocent but also by acquittal of the
guilty for un1ust1fied fa!lure to produce available evidence.
On
388
SUPREME COURT REPORTS
[1973] 2 S.C.R.
the existing record we find the evidence to be inadequate and unsafe for convicting the appellant. This, however, i§ entirely due
to the faulty and inefficient investigation, for which no justification is forthcoming.
On the view that we have taken it is un-
~ecessary to refer to the decisions cited at. the bar on the question of onus of proof in criminal cases generally.
This appeal is of course before us under Art., 136 of the
Constitution but the judgments of the trial court and of the. High
Court proceed principally on ussumptions not fully supportable
on the material on the record. That is why we have considered
it just, fair and proper to examine the evidence ourselves.
We
find there is a serious lacuna in the case wholly due to the inefficient
and
perfunctory investigation
by
the investigating
agency.
Before concludir.g we cannot help observing that the adverse
remarks made against K. G. Joshi, P.W. 1, are hardly fair or
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just. Assuming his testimony did not impose the courts below.
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they should have expressed their opinion in temperate language
usually associated with and reflecting the impersonal diginity of
judicial rc,traint. The strong language used in condemning him
and otherwise casting aspersions on him which were um1ecessary
is, in our opinion, uncalled for and we cannot approve of those
nhservations.
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The result is that this appeal succeeds and allowing the same
11c acquit the appellant.
V.P.S
Appeal allowed.
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