Oral Judgment:
Heard Mr. Rivonkar, learned Public Prosecutor for the appellant and Mr. Mashelkar, learned Counsel for the respondent.
2. This appeal is directed against the judgment and order dated 25/11/2009 passed by the Judicial Magistrate, First Class, Panaji in Criminal Case No.102/06/D/C acquitting the respondent of the offences punishable under Sections 279 and 338 of I.P.C.
3. Briefly, the facts leading to filing of the appeal are as under:
On 19/10/2005 at about 13.10 hours at Zuari, Goa Velha on National Highway no.17, the accused drove his Maruti Van bearing registration no.GA01-T-6603 in rash and negligent manner while proceeding from Margao to Panaji and when he reached near Zuari bridge, Goa Velha on National Highway no.17 while attempting to overtake another vehicle, dashed against motorcycle bearing registration no.GA02-H-4458 driven by PW2 - Dipesh Shah causing grievous injuries to him. Both the accused and PW2 sustained injuries and they were taken to Goa Medical College and Hospital at Bambolim where the First Information Report of PW2-Dipesh Shah was recorded on the same day. Thereafter, panchanama of the scene of offence was conducted in which PW1-Nitin Nevrekar was one of the panchas. The vehicles were inspected by Assistant Motor Vehicle Inspector PW4-Francis Vaz. Investigation was carried out by PW5-Arjun Gavas. After completion of investigation, chargesheet was filed in the Court of Judicial Magistrate, First Class, Panaji.
4. In Criminal Case No.102/06/D/C, the prosecution examined five witnesses namely PW1-Nitin Nevrekar- panch witness, PW2-Dipesh Shah- the complainant, PW3- Waman Naik- the record keeper, PW4- Francis Vaz -Assistant Motor Vehicle Inspector and PW5- Arjun Gavas- the Investigating Officer. The statement of the accused under Section 313 of Cr.P.C. was recorded. The accused did not lead any evidence. The defence of the accused was that PW2-Dipesh himself was rash and negligent and was responsible for the accident.
5. It was also his case that PW2 drove his motorcycle on wrong side and came towards the Maruti Van driven by the accused and the accused applied brakes before crossing the dividing line of the road but the PW2 gave dash by his motorcycle. Learned Magistrate, upon appreciation of the evidence, held that rashness and negligence on the part of the accused, was not proved and consequently, acquitted the respondent/accused of the offences for which he was tried.
6. Mr. Rivonkar, learned Public Prosecutor appearing for the appellant submitted that the findings recorded by learned Magistrate, are perverse and are patently unsustainable in law. He further submitted that the evidence of PW2-Dipesh Shah who was driving the motorcycle is clinching and the same has not been shaken in the cross-examination and, therefore, the finding of acquittal recorded by learned Magistrate, is patently unsustainable in law. Learned Public Prosecutor further submitted that the evidence of PW2 stands corroborated by the scene of offence panchanama exhibit C-8 which has been duly proved by PW1-Nitin Nevrekar. According to learned Public Prosecutor, the evidence of these two witnesses and that of the Investigating Officer PW5-Arjun Gavas clearly establishes that it was the accused who was rash and negligent in driving the Maruti van and he came on wrong side of the road and dashed against the motorcycle which was on right side.
7. Per contra, Mr. Mashelkar, learned Counsel appearing for the respondent/ accused supported the impugned judgment and order, and submitted that the findings recorded by learned Magistrate, are borne out from the evidence on record and the evidence of PW2-Dipesh Shah contradicts the sketch. Learned Counsel, therefore, submitted that the view taken by learned Magistrate is a probable view and, therefore, having regard to the settled principles governing interference in appeal against the acquittal, no interference is warranted with the judgment and order of acquittal. In support of his submissions, Mr. Mashelkar relied upon the judgment in the case of Kalyanand Ors. Vs. State of U.P.; 2001(4) Crimes 57 (SC).
8. I have carefully considered the rival submissions, perused the record and the judgment relied upon.
9. Learned Magistrate has recorded the order of acquittal on the ground that the prosecution has not proved the point of impact which is very important in criminal case involving vehicular accident; the testimony of PW2 contradicts the sketch on record inasmuch as the sketch did not show the point of impact on the extreme left side of the road if one proceeds to Agacaim. Learned Magistrate has further held that PW2 has simply deposed that the accused came on his side and gave dash and has not deposed in what manner the accused was rash and negligent; learned Magistrate further held that since the damage was caused to the right side of the Maruti van, the version of the accused was more probable in the absence of any eye-witness.
10. PW2-Dipesh who was driving the motorcycle and who was admittedly injured, deposed that on 19/10/2005 at about 12.40 hours, he was proceeding on Hero Honda Splender motor cycle bearing registration No.GA-02-H-4458 from Panaji to Vasco and when he reached near Zuari, Goa, Velha he was proceeding on his side of the road, he saw a Maruti van taxi bearing registration no.GA-02-T-6603 coming in a fast speed from opposite direction and while it was overtaking a vehicle which was in his front at that time, came towards his side of the road and gave dash to motorcycle. On account of dash, he lost his consciousness and after sometime he regained consciousness and he realised that he was in the drain which was extreme left side of the road if one faces to Agacaim. He removed the helmet. People gathered at the spot. They took him out of the drain and kept him on the road. He suffered injuries on his left and right legs and he was unable to move his right leg. He identified the accused as driver of Maruti van which had given dash to motorcycle. He also stated registration number of Maruti van which was involved in the accident and deposed that after the accident, he saw the Maruti van on the kachha road on the left side, if one faces Agacaim and its two front tyres were in the drain. He and the accused were taken to Goa Medical College Hospital at Bambolim in the navy van. According to him, the accident had occurred at about 2.10 p.m. He suffered fracture at his right hand and right leg. He was operated in Goa Medical College Hospital and rod was inserted in the leg, and plate was inserted in the right hand. He was discharged from the hospital after six months. He still faces difficulty in walking. He identified the report exhibit C-10 which was recorded at the Goa Medical College Hospital, Bambolim. In the cross-examination, he denied that he was driving his motorcycle at the speed at about 70 to 80 kilometres per hour or that the Maruti van was not overtaking any vehicle, as deposed by him. He added that since he was in slow speed, he did not apply brakes. He denied the suggestion that he was responsible for the accident since he was driving the vehicle at a speed of 70 to 80 kilometres per hour. He knew Gujrati, Hindi and English. He also understood Marathi, but he could not read. He further stated that the complaint was translated in Hindi. He denied the suggestion that he was driving the motorcycle in rash and negligent manner and was responsible for the accident. He denied the suggestion that he did not apply brakes although he had seen Maruti van coming from opposite direction or that he did not sustain injuries to his right hand and head. To the suggestion that there was no slope at the spot of accident and, therefore, there was no question of the accused riding in fast speed, the witness stated that there was no slope. He denied the suggestion that he was deposing falsely.
11. PW1-Nitin Nevrekar, who was examined as panch, deposed that on 19/10/2005, he acted as panch in respect of panchanama conducted at Zuari, Goa Velha on the road proceeding from Panaji to Agacaim which was National Highway, but he did not recollect the name of second panch. He mentioned correctly the registration numbers of Maruti Van and Hero Honda Splender involved in the accident. He further deposed that the front two tyres of Maruti van and rear tyre of the Hero Honda Splender were on the left side of the road if one faces Agacaim. Measurements were taken at the spot by the police. The width of tar road was about 10 metres and there were brake marks of 7 to 8 metres which started from the road proceeding from Agacaim to Panaji extending on the road proceeding from Panaji to Agacaim. He also deposed that damage was caused to both the vehicles. The panchanama was written at the spot and signatures were also obtained at the spot. The sketch was also drawn at the spot. He produced the panchanama and sketch and admitted his signatures from point A to A on the panchanama and the sketch exhibit C-8 colly. In cross-examination, he stated that he read the panchanama before signing. The front glass of the Maruti van was damaged. Upon sketch being shown to him, he admitted that the Maruti van had applied brakes before dividing line and, therefore, it skidded and went to the right hand side. He did not see brake marks applied by the motorcycle. The distance between the motorcycle and Maruti van after the incident of accident, was more than 1 metre. He denied the suggestion that the panchanama and sketch were already written down by the police and thereafter, he signed it. He denied that he was deposing falsely.
12. Upon close scrutiny of the evidence of the above two witnesses, discloses that the version of PW2-Dipesh who was admittedly injured in the accident that he was on the right side of the road i.e. on the left side of the road as one proceeds from Panaji to Agacaim, has not been shaken in cross-examination. Perusal of the sketch discloses that the width of the road on which the accident occurred was 9.85 metres and the brake marks of the Maruti Van driven by the accused are near the dividing line of the road proceeding from Agacaim to Panaji and brake marks have crossed the dividing line to the extent of 7.20 metres. The sketch further discloses that after the accident, the Maruti Van as well as Hero Honda Splender were found in a ditch at a portion of kachha road on extreme left side of the road proceeding from Panaji to Agacaim. From the evidence of PW2-Dipesh and that of PW1-Nitin the only conclusion that can be drawn is that the version of PW2-Dipesh that the accused was attempting to overtake the vehicle in front of him, appears to be more probable. In my view, the evidence of PW2 does not contradict the sketch as has been held by learned Magistrate. From the evidence of PW2-Dipesh and the panchanama alongwith sketch which have been duly proved by PW1-Nitin, the version of PW2-Dipesh that the accused was driving his Maruti van in a very fast speed and while attempting to overtake tempo in front of him, suddenly came on right side of the road and dashed against the motorcycle driven by him, appears to be more probable. The version of the accused that PW2 came on his side on the road and gave dash against the Maruti Van driven by the accused, appears to be highly improbable, having regard to the panchanama and the sketch which have been proved by PW1. No doubt the prosecution has not produced any document to prove the point of impact. But this fact by itself is not fatal to the prosecution case in view of the cogent evidence of PW2-Dipesh which stands corroborated by the panchanama and the sketch. In my view, the reasons given by learned Magistrate for recording the order of acquittal, are patently unsustainable in law. Learned Magistrate has absolutely not given any reason as to why she disbelieves the version of PW2-Dipesh, who claimed that he was driving the motorcycle on his side. May be that while proceeding from Panaji to Agacaim he was not on extreme left side of the road. From the sketch it is clear that there is dividing line on the road having width of 9.85 metres and the Maruti van driven by the accused had even crossed the dividing line towards the road proceeding from Panaji to Agacaim. In the cross-examination, PW1- Nitin admitted that the Maruti van had applied brakes before dividing line and, therefore, it was skidded and went to right hand side. This fact coupled with the fact that the brake marks were to extent of 7.20 metres clearly proves that the accused was driving his vehicle in fast speed and had applied the brakes by which his vehicle went to right hand side and dashed against the motorcycle driven by PW2-Dipesh. In my view, therefore, rashness and negligence on the part of the accused, is clearly made out. In my opinion, the reasons given by the learned Magistrate for recording the order of acquittal, are patently unsustainable in law. The Magistrate has misconstrued the cogent evidence led by the prosecution against the accused.
13. The evidence of these two witnesses also stands corroborated by the evidence of PW5-Arjun Gavas, Investigating Officer and PW4- Francis Vaz who was Assistant Motor Vehicle Inspector, who had inspected both the vehicles involved in the accident. The evidence of PW4 discloses that both the vehicles had sustained major damage and both the vehicles were not in driving condition.
14. Learned Magistrate has held that the prosecution has not proved that the medical record of PW2-Dipesh at Goa Medical College Hospital inasmuch as the said documents were not proved since PW3- Waman Naik was only the Medical Record Officer. I do not find any infirmity in the approach of the learned Magistrate. However, there is absolutely no reason to disbelieve the version of PW2 that he had sustained fracture on account of the accident and he was hospitalised for a period of six months, which was not shaken in his cross-examination.
15. Therefore, in my view, the prosecution has been able to prove beyond reasonable doubt that the accident occurred on account of rash and negligent driving on the part of the accused on account of which grievous injuries were caused to PW2-Dipesh. Therefore, in my view, the prosecution has been able to establish both the offences beyond reasonable doubt against the accused.
16. The judgment in the case of Kalyan (supra) relied upon by Mr. Mashelkar, learned Counsel for the appellant, is of no help to the accused, having regard to the factual matrix in the said case and in the present case.
17. Coming to the sentence, Mr. Rivonkar, learned Public Prosecutor appearing for the appellant submitted that appropriate sentence be imposed on the accused and he may be ordered to pay substantial compensation in favour of the injured in view of the fact that he had sustained grievous injuries on account of the accident.
18. Per contra, Mr. Mashelkar, learned Counsel for the accused submitted that the accused is a professional driver and he has no criminal record and as such, benefit of provisions of Probation of offenders Act, 1958, be extended to him.
19. In my view, having regard to the fact that number of accidents are on rise not only in the State of Goa but all over the country and having regard to the nature of injuries suffered by the injured, this is not a fit case in which benefit of the provisions of Probation of Offenders Act, 1958 deserves to be given to the accused.
20. For the reasons aforesaid, the acquittal of the respondent for the offences punishable under Sections 279 and 338 of I.P.C., is set aside and the respondent/ accused is convicted for the offences punishable under Sections 279 and 338 of IPC. The accused is sentenced to undergo simple imprisonment of one day i.e. till rising of the Court and to pay compensation of Rs.10,000/- (Rupees ten thousand only) and in default, to undergo Simple Imprisonment for a period of 2 months for the offence punishable under Section 338 of I.P.C. The accused is also ordered to pay compensation of Rs.10,000/- (Rupees ten thousand only) and in default, to undergo Simple Imprisonment for a period of 1 month for the offence punishable under Section 279 of I.P.C.
21. The accused shall deposit the compensation in the Court of Judicial Magistrate, First Class, Panaji within four weeks. Upon deposit, learned Magistrate shall pay the compensation to PW2-Dipesh Shah. In case the accused fails to deposit the compensation within four weeks, learned Magistrate shall take appropriate steps to take the accused into custody to serve in default sentences imposed on him.
22. The appeal stands disposed of in aforesaid terms.