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2005 DIGILAW 1092 (BOM)

State of Goa v. Nirmala D'Mello

2005-08-24

N.A.BRITTO

body2005
JUDGMENT N.A.Britto, J.-This is State's Appeal against the acquittal of the accused under Sections 279 and 337, IPC by virtue' of the judgment/order dated 15.1.2004 in C.C. No. 112/03/E. 2. There is no dispute that the accident took place on 5.2.2003 at 9.15 hours at Porvorim on the National Highway and at a place where there is another road proceeding towards Pundalik Nagar as one goes from Panaji to Mapusa between motor cycle No. GA-1-Y -2950 driven by PW 1/Sriram Dhargalkar and Maruti Car bearing No.GA-01-S-1544 driven by the accused. The road/highway at that place is about 16 meters wide and was divided by road dividers. The lane from Mapusa to Panaji on which the accident took place after the accused took a turn' into the said lane therefore, ought to be about half of that width. 3. The case of the prosecution was that the accused crossed the Panaji/Mapusa lane that is to say one way road without taking any precautions and entered the other lane and dashed against the motor cycle of PW 1/Sriram Dhargalkar which was proceeding towards Panaji direction as a result of which the motor cycle rider, namely. PW 1/Sriram Dhargalkar and his wife PW 2/Anjali Dhargalkar sustained simple injuries. On the other hand, it was the case of the accused that she had taken the right turn to go to Pundalik Nagar and the motor cycle driven by PW 1/Sriram Dhargalkar came in a fast speed and dashed against her car at a time when she was almost on the edge of the road and in the process of entering the Pundalik Nagar road. The prosecution had examined the motor cycle driver, namely. PW 1/Sriram Dhargalkar and his wife PW 2/Anjali Dhargalkar who was the pillion rider and PW 3/Seema Ram Chimulkar who was an eye-witness and who was waiting for the bus at the nearby bus stop. PW 4/Krishanand Sawant. Head Constable had drawn the panchanama and sketch which he produced through his evidence and under Section 294 of the Code of Criminal Procedure 1973 (Code for short). The reports of examination of both the vehicles as well as the a Medical Certificates of PW 1/Sriram Dhargalkar and PW 2/Anjali Dhargalkar were also produced through the same witness and under Section 294 of the Code. The accused also produced certain photographs of the car driven by her through PW 4/Krishnanand Sawant. Head Constable. The reports of examination of both the vehicles as well as the a Medical Certificates of PW 1/Sriram Dhargalkar and PW 2/Anjali Dhargalkar were also produced through the same witness and under Section 294 of the Code. The accused also produced certain photographs of the car driven by her through PW 4/Krishnanand Sawant. Head Constable. 4. The learned J.M.F.C., Mapusa, after assessing the evidence of the prosecution witnesses came to the conclusion that the prosecution had failed to prove that the accused was rash and negligent in driving the car on the relevant day and, therefore, proceeded to acquit the accused. 5. At the hearing Ms. Shreya Naik the learned Counsel of the accused has submitted that the panchanwna and the sketch were not proved by the prosecution by examining the panch witnesses and therefore, what is stated in the said panchanama and the sketch could not be taken against the accused. The learned Counsel has also placed reliance on the case of Jit Singh v. State of Punjab AIR 1976 SC 1421 . In this case, it was observed by the Apex Court that the notes on the site plan prepared by the Investigating Officer in accordance with the various situations pointed out to him by the witnesses are statements recorded by the Police Officer in the course of investigation, and are hit by Section 162 of the Code. These notes can be used only for the purpose of contradicting the prosecution witnesses concerned in accordance with the provisions of Section 145, Evidence Act, and for no other purposes and, therefore, where the witnesses were not confronted and contradicted with the record, the notes on the site plan cannot be used to contradict the account given by the witnesses in Court in regard to the distances from which they saw the occurrence. 6. In my view, the said observation cannot be applied to the facts of this case. Firstly, it must be noted that the panchanama/sketch is a record also made by PW 4/Krishnanand Sawant himself on seeing the scene of accident and before coming to any conclusion as to which driver was rash and negligent. 6. In my view, the said observation cannot be applied to the facts of this case. Firstly, it must be noted that the panchanama/sketch is a record also made by PW 4/Krishnanand Sawant himself on seeing the scene of accident and before coming to any conclusion as to which driver was rash and negligent. Moreover as noted in the evidence of PW.4/Sawant, Head Constable the said document were taken in evidence under Section 294 of the Code without any murmur or demur on the part of the accused and therefore today the accused cannot be heard to say that the contents of the said documents were not proved by the prosecution. The first submission therefore has got to be rejected. 7. There is no doubt that every driver of a motor vehicle is required to drive his vehicle with due care and caution. The care and caution required depends upon the time and the place including the condition of a road where a particular vehicle is driven. The responsibility of a driver certainly becomes all the more greater whilst entering another road wherein there is a flow of traffic and in such a situation the driver is required to take greater care and caution to ensure that he has time and space to cross the road without coming a in the way of the other vehicles. In this case, there was evidence of 3 witnesses which. in my view, has been rejected by the learned trial Court on conjectures and surmises for example PW 1/Sriram Dhargalkarhad clearly stated that he was driving his motor cycle and when he reached near the bus stop at Pundalik Nagar the Maruti Car blue in colour, came from Panaji towards Mapusa and came towards his right side. He stated that the car came suddenly on the road at the time of the accident there were very few vehicles on the road on which he was proceeding and dashed on his motor cycle as a result of which he fell down due to the impact. In cross-examination he has stated that although otherwise it is a busy road on which he was proceeding. PW 1/Sriram Dhargalkar further stated that the car driven by the accused took a right turn to proceed towards Pundalik Nagar and for that purpose the accused was to cross the road on which he was proceeding. In cross-examination he has stated that although otherwise it is a busy road on which he was proceeding. PW 1/Sriram Dhargalkar further stated that the car driven by the accused took a right turn to proceed towards Pundalik Nagar and for that purpose the accused was to cross the road on which he was proceeding. He further stated that the impact of the vehicle of the accused was on the front left hand side. He further stated that the road was straight at that place. He also stated that the vehicle of the accused banged her car on the motor cycle on the right hand side and further stated that he could not avoid the accident as the accused came suddenly. PW 2/Anjali Dhargalkar also stated that when they reached near Pundalik Nagar the accused came from Panaji and then took a right turn towards Pundalik Nagar and whilst crossing the road the accused suddenly banged upon them and they fell down due to the impact which was on the right side of the motor cycle. In cross-examination, she stated that the front portion of the car of the accused dashed against the right side of their motor cycle. She also stated that there were vehicles on the road at the time of accident but not too many. She denied the suggestion that her husband was driving the vehicle in a fast speed. 8. PW 3/Seema Ram Chimulkar, stated that she was standing at the bus stop and at that time one blue Maruti Car came from Panaji direction and took a right turn to come to Pundalik Nagar and without stopping went and dashed against a motor cycle which was proceeding from Mapusa to Panaji direction as a result of which the motor cycle driver and the lady who was the pillion rider fell on the ground and the tyre of the Maruti Car went over the chest of the rider of the motor cycle. She also stated that it is the front portion of the car which dashed against the motor cycle the bus stop was not corroborated either by PW 1/Sriram Dhargalkar or PW 2/Anjali Dhargalkar. In fact, PW 2/Anjali Dhargalkar had clearly stated in her cross-examination that she came to know PW 3/Seema Ram Chimulkar only after the accident. She also stated that it is the front portion of the car which dashed against the motor cycle the bus stop was not corroborated either by PW 1/Sriram Dhargalkar or PW 2/Anjali Dhargalkar. In fact, PW 2/Anjali Dhargalkar had clearly stated in her cross-examination that she came to know PW 3/Seema Ram Chimulkar only after the accident. That was as it should have been for it was not expected either for PW 1/Sriram Dhargalkar or for that matter PW 2/Anjali Dhargalkar to have noticed as to which persons were standing at the bus stop when they themselves were involved in the accident. The learned trial Court has also observed that PW 1/Srirarn Dhargalkar and his wife were a proceeding to their respective work place and therefore naturally they were in a hurry to reach their destination before 9.30 a.m. I fail to understand as to how such observation could have been made without there having been any foundation in their cross-examination. The evidence of PW 1/Sriram Dhargalkar, PW 2/Anjali Dhargalkar and PW 3/Seema Ram Chimulkar is very clear on the aspect that the accused drove the car across the divider and came unto the other lane all of a sudden and dashed the right hand side of the motor cycle. The photographs produced as well as the reports of inspection clearly go to corroborate the version given by the said 3 witnesses and which b show that it is the left front corner of the car which dashed on the light of the motor cycle. It was certainly the duty on the part of the accused to have ensured that there were no other vehicles coming on the lane meant for the traffic coming from Mapusa to Panaji and there was sufficient time and place for her to cross the said lane on the way to the road Pundalik Nagar. The accused does not appear to have taken any care in that regard and, therefore, was negligent in crossing the said lane without having any regard to the oncoming traffic on the said lane. It was expected of the accused to have exercised reasonable and proper care whilst entering the said Mapusa-Panaji lane so as to avoid injury either to the public or to PW 1/Sriram Dhargalkar who was coming on the said lane which the accused failed to exercise. It was expected of the accused to have exercised reasonable and proper care whilst entering the said Mapusa-Panaji lane so as to avoid injury either to the public or to PW 1/Sriram Dhargalkar who was coming on the said lane which the accused failed to exercise. The simple injuries sustained by PW 1/Sriram Dhargalkar and PW 2/Anjali Dhargalkar were proved by the production of the Medical Certificates. 10. As a result of the above discussion, the appeal deserves to succeed. The judgment/order of the learned J.M.F.C., Mapusa is hereby set aside and the accused is convicted under Sections 279 and 337, IPC. 11. After hearing both the parties, the accused is directed to pay a fine of Rs. 1000/- under Section 279 IPC and Rs. 500/- under Section 337, IPC and in default to undergo SI for one month. A sum of Rs. 1500/- each shall be paid to PW 1, Sriram Dhargalkar and PW 2, Anjali Dhargaikar respectively by way of compensation. The fine to be deposited by the accused before the trial Court within thirty days. Appeal allowed.