Full Judgment
Oral Judgment:
1. Heard Mr. Menezes, learned Counsel appearing on behalf of the petitioner and Ms. Gomes e Pinto, learned Additional Public Prosecutor appearing on behalf of the respondent.
2. This petition, which was admitted on 01/02/2012, is filed against the judgment and order dated 09/11/2011 passed by the learned Sessions Judge, South Goa at Margao ('Sessions Court') in Criminal Appeal No. 34/2011, by which the Judgment and Order dated 31/03/2011 passed by the learned Judicial Magistrate, First Class, Margao (J.M.F.C.) in Criminal Case no. 50/S/2006/E, has been upheld, with slight modification. The petitioner was the accused in said Criminal Case No. 50/S/2006/E and shall, hereinafter, be referred to as the accused.
3. A charge sheet was filed by Colva Police against the accused before the learned J.M.F.C. for offences punishable under Sections 279 and 304-A of the Indian Penal Code (I.P.C.) alleging that on 01/08/2005 at 15.20 hours, the accused drove Mahindra Pick-up bearing registration no. GA-02/U-9944 in a rash and negligent manner from Colva towards Betalbatim and when reached near Mendes Shop at Gaundalim, Colva, dashed against the oncoming motorcycle bearing registration no. TN-02/L-1028 ridden by one Ashwin Timmaya and caused his death. Criminal Case No. 50/S/2006 was a culmination of the said charge sheet.
4. The prosecution had examined in all eight witnesses, namely Shri Joe Fernandes, one of the panch witnesses to the panchanama of scene of accident and sketch (Exhibit 9-colly), as PW1; Eulegio Gomes, an eye witness as PW2; Shri Hilarino Cotta, one of the the panch witnesses for inquest panchanama (Exhibit 15) as PW3; Shri Nelson Albuquerque, the then Police Sub-Inspector of Verna Police Station, who conducted the inquest panchanama as PW4; Dr. Avinash Pujari, who conducted the postmortem examination on the dead body of deceased Ashwin as PW5; Shri Shiva Kale, the then Head Constable, who lodged the complaint (Exhibit 21) against the accused on behalf of the State and conducted the panchanama of scene of accident and sketch as PW6; Shri Pralhad Dessai, the Assistant Director of Transport, who conducted the inspection of both the vehicles as PW7 and Shri Prabhakar Dessai, the then Sub-Inspector of Colva Police Station, who filed charge sheet after completing the investigation, as PW8.
5. The case of the accused was that the deceased was himself at fault. He examined himself as DW1 and one Camilo Fernandes as DW2.
6. The learned J.M.F.C., upon consideration of the evidence on record, held the accused guilty of the offence punishable under Sections 279 and 304-A of IPC. The accused was sentenced to undergo Simple Imprisonment for a period of one month and to pay fine of Rs.1,000/-, in default to undergo Simple Imprisonment for a further period of 15 days for the offence under Section 279 of IPC. He was sentenced to undergo Simple Imprisonment for a period of one year for the offence under Section 304-A of IPC. The sentences were ordered to run consecutively.
7. Aggrieved by the judgment, order and sentence imposed by the J.M.F.C., the accused preferred Criminal Appeal No. 34 of 2011 before the Sessions Court, South Goa at Margao. By judgment and order dated 09/11/2011, the appeal was dismissed and the judgment, order and sentence imposed by the J.M.F.C. has been upheld with only modification that both the sentences shall run concurrently. It is against this judgment that the present appeal has been filed.
8. Mr. Menezes, learned Counsel appearing on behalf of the accused submitted that the point of impact which is shown in the sketch was not at all proved. He further submitted that the evidence of PW2 did not at all prove any rashness or negligence on the part of the accused. He submitted that the evidence of DW1, the accused himself and DW2, an eye witness sufficiently proved that there was no fault on the part of the accused and that the deceased was himself at fault. He submitted that the panchanama and the sketch did not show the correct position and that there was no dispute that at the spot of accident, there was a coconut tree which was bent towards the road and that on both sides, there were houses with compound walls. He pointed out from the accident report forms that the left hand side cabin top of the Pick-up was dented and the rear body hood was also damaged. He submitted that the panchanama itself showed that the vehicle of the accused had not completely turned turtle, but had fallen on its side and since the damages are to the top, it can be believed that the said top of the vehicle had dashed the bent coconut tree. He submitted that the judgment of both the Courts below are perverse and, therefore, call for interference from this Court.
9. On the other hand, Mrs. Pinto, learned Additional Public Prosecutor submitted that the evidence of PW1, the panch witness had not been specifically denied in the cross-examination and, therefore, the point of impact as shown in the sketch was duly proved. The learned Additional Public Prosecutor further submitted that the evidence of eye witness, namely PW2 sufficiently proved the rashness and negligence on the part of the accused and the same had support of the panchanama of the scene of accident and sketch. She pointed out that there was no dispute that the deceased died as a result of haemorrhage and shock due to damage to lungs and liver with multiple fractures. The learned Additional Public Prosecutor submitted that according to DW1, there was pot hole, but DW1 does not speak about any pot hole. She further submitted that, according to DW1, CBZ motorcycle was overtaking another vehicle and had banged on the laterite stones but according to DW2, it had dashed against the compound wall. She, therefore, submitted that DW1 and DW2 had not corroborated each other due to which the defence evidence was not reliable. She submitted that there are concurrent findings of two Courts and that the scope of revision is limited and considering the impugned judgments, there is no scope for interference.
10. I have gone through the original records and proceedings. I have considered the arguments advanced by the learned Counsel for both the parties.
11. PW1, who acted as a panch witness to the panchanama of the scene of accident and sketch, which are at Exhibit 9 colly, deposed in his cross-examination that one Head Constable had shown to him the accident spot. However, PW5, the Head Constable, who drew the said panchanama and the sketch, deposed that the accident spot was shown by Ryan Pinto. Thus, there was no corroboration between PW1 and PW5. There was nothing at the point which was shown as 'point of impact' on the sketch, to say that that was the point of impact. A point is simply marked as '*' on the sketch saying that it is the accident spot. Said Ryan Pinto, who allegedly showed the point of impact, was not examined by the prosecution. Since PW2 was the eye witness, it was incumbent upon the Investigating Officer to have called PW2 to show the place of accident as well as point of impact. It can, therefore, be certainly said that the point of impact was not at all proved by the prosecution. This material aspect was not considered by the lower Courts.
12. PW2 deposed that Mahindra four wheeler vehicle was coming from Colva to Betalbatim and the driver of the same applied brakes and the Jeep turned turtle and dashed against the CBZ motorcycle bearing registration no. TN-02/L-1028. However, he did not at all explain as to why suddenly the accused had to apply brakes and as to how exactly the accident took place. He did not state that the said Pick-up was driven at a fast speed or in rash and negligent manner or that it came on the wrong side. The fact that, according to PW2, Mahindra Jeep had turned turtle itself showed that he was not a truthful witness. According to PW1, the panch witness, the Jeep had fallen sideways on the road. Even the panchanama, which is part of Exhibit 9-colly mentions and the sketch shows that the Jeep had fallen sideways on the road and had not completely overturned or turned turtle. PW2 did not state as to where exactly on the road, the dash was given.
13. In the circumstances above, I wonder as how on the basis of the testimony of PW1 and PW2, the lower Courts could conclude that the accused was rash and/or negligent. Except the evidence of PW1 and PW2, there was nothing on record to prove as to how the accident had taken place. Since the evidence of PW1 as well as PW2 did not at all prove the point of impact, the question of holding that the prosecution had proved that the accused was rash and negligent, did not arise. It is pertinent to note that as per the accident report form, which is at Exhibit 23, proved by PW7, the Assistant Director of Transport, who inspected the said Mahindra Pick-up, there were damages to the cabin top and rear body hood. These damages are consistent with the case of the accused that his Jeep had given dash to the coconut tree, which was leaning on the road. Since the Jeep had fallen sideways and if it had not dashed the coconut tree as deposed to by DW1 and DW2, damages to the top of the said Jeep were not possible. The sketch does not show that the top part of the Jeep had dashed anywhere.
14. The evidence of PW6, Shiva Kale, the Head Constable, who conducted the panchanama of the scene of accident, proved that there existed compound walls of the residents on both sides of road. However, the sketch, which is part of exhibit 9 colly did not show the said compound walls.
15. It was stated by DW1, the accused, that he was proceeding from the internal road from Colva Church to Mazorda and that there was rain and the road was narrow and he suddenly saw one coconut tree which was bent towards the road and in order to avoid the said tree, he took a diversion due to which his vehicle went into a pot hole and hit on the said bent coconut tree and tilted towards the right hand side and fell on the road. He stated that there was darkness due to rain. According to him, from the opposite side i.e. from Betalbatim to Colva side, one young person was coming on CBZ motorcycle and was overtaking another vehicle and he suddenly saw the turned vehicle and applied brakes and skidded and fell on right hand side of the road and banged on the laterite stones, which were kept on the left hand side of the road.
16. DW2-Camilo stated that on 01/08/2005, when he reached at Gaundalim, he saw Mahindra Jeep which had fallen on the road in which there were tins of colour paints, tiles and other articles, which were also thrown on the road. He deposed that he parked his vehicle at the spot and heard people saying that the said Mahindra Jeep had dashed on the coconut tree which was leaning on the road and it was raining. He stated that at that time, he saw one motorcycle which was coming from Betalbatim side on the right side of the road at a fast speed and upon applying brakes suddenly, he skidded on the road and dashed against the compound wall near the road. In his cross-examination, even DW2 stated that there was slight darkness on that day.
17. Considering the evidence on record and comparing the prosecution evidence with the defence evidence, I am of the view that the prosecution had miserably failed to prove the guilt of the accused.
18. It is true as contended by the learned Additional Public Prosecutor that there are limitations in exercise of revisional jurisdiction and ordinarily findings on appreciation of evidence relating to facts by the trial Court should not be disturbed, more particularly when the findings are upheld by the Appellate Court. However, as discussed above, the evidence on record as is found discussed in the judgments itself reveals that the prosecution had miserably failed to prove the guilt of the accused. The accident spot itself had not been proved and, therefore, the foundation on which the judgments of the lower Courts were based, was shaky.
19. In view of the above, the Revision Application is allowed.
(a) The Impugned Judgment and order dated 09/11/2011, passed by the Sessions Judge in Criminal Appeal No. 34/2011 and the Judgment and order dated 31/03/2011, passed by the J.M.F.C. in Criminal Case No.50/S/2006, are quashed and set aside.
(b) The conviction of the petitioner for offences punishable under Sections 279 and 304-A of IPC is quashed and set aside.
(c) The petitioner is acquitted of the said offences.
(d) Fine, if any, paid by the petitioner shall be refunded back to him.
20. Revision Application stands disposed of accordingly.