LexNAGESHWAR SHRI KRISHNA CHOUBE versus STATE OF MAHARASHTRA
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It A 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 c D E F G H Indian Penal Cocle (Act 45 of 1860) s. 304 A-Rash and negligent clriving--Available 111aterial cvide11ce not produr.ed by prosecu1ion- Reliance 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 pro- secution 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 appel- lant must have continued to run the bus at 'full speed expecting the pedes- trian 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 ad- verted 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 req- uires 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 rej- ection 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 pos- C ition of the vehicle, the electric pole. and the position of the victim, but had produced,
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