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2012 DIGILAW 1763 (BOM)

State of Goa v. Nishant Surlekar

2012-09-14

A.P.LAVANDE

body2012
Judgment Heard Mr. Lawande, learned Additional Public Prosecutor for the appellant and Mr. J. Mulgaonkar, learned Counsel for the respondent. 2. By this appeal, the appellant takes exception to the judgment and order dated 14/05/2009 passed by the Judicial Magistrate, First Class, Panaji in Criminal Case No.39/07/C by which the respondent/ accused has been acquitted of the offences punishable under Sections 279 and 304-A of I.P.C. and Section 134(a) and (b) of the Motor Vehicles Act, 1988. 3. Briefly, the prosecution case is as under: On 15/01/2006 at about 4.30 p.m. near Reshma General Stores at Neura, the accused, who was proceeding on scooter bearing no.GA01-Y 3981 from Pillar to Old Goa along with pillion rider Ms. Shama Parab, resident of Shiroda, drove the scooter in rash and negligent manner endangering the human life. When he reached at Piquen Neura, the accused lost control of his motorcycle on the speed breaker and the pillion rider was thrown off and dashed against the electric pole and sustained grievous injuries, and succumbed to the injuries. The accused left the spot without informing the Police and without giving medical aid to the injured. 4. The incident was informed to Agacaim Police Station. The investigation was carried out and chargesheet was filed against the accused for the offences punishable under Sections 279, 304-A of I.P.C. and Section 134(a) and (b) of the Motor Vehicles Act,1988. 5. In Criminal Case No.39/2007, the prosecution examined 13 witnesses. The evidence of the accused was of total denial and false implication. Learned Magistrate, upon appreciation of the evidence, held that the offences were not proved beyond reasonable doubt against the accused and consequently, acquitted the accused for the offences in respect of which the accused was facing the trial. 6. Learned Magistrate held that two eye-witnesses examined by the prosecution namely PW2-Gurunath Naik and PW4-Gajanan Priolkar could not be believed as an eyewitnesses. According to learned Magistrate, nothing was brought on record to justify that they had seen the accident on 15/01/2006. Learned Magistrate further held that there were inter se versions in the testimonies of two witnesses. PW12-Kamal Barge and PW13-Rupesh Gawas and in any case their evidence was at variance with the eyewitnesses. Learned Magistrate further held that the Investigating Officer ought to have held test identification parade inasmuch as the accused was not known to the two eyewitnesses. 7. Mr. PW12-Kamal Barge and PW13-Rupesh Gawas and in any case their evidence was at variance with the eyewitnesses. Learned Magistrate further held that the Investigating Officer ought to have held test identification parade inasmuch as the accused was not known to the two eyewitnesses. 7. Mr. Lawande, learned Additional Public prosecutor submitted that the findings recorded by learned Magistrate are totally perverse and, therefore, interference is warranted with the impugned judgment and order. According to him, PW2 and PW4 are natural eye-witnesses and the testimonies of the eye-witnesses, have not been shaken in cross-examination and the defence taken by the accused is that he was not driving the scooter, cannot be believed. Therefore, the accused deserves to be convicted for the offences for which he was tried. According to learned Additional Public Prosecutor, the evidence of PW12 and PW 13 also lends corroboration to the prosecution version that it was the accused who was driving the vehicle in rash and negligent manner on account of which the pillion rider Shama was thrown out at the speed breaker resulting in grievous injuries to her and family in her death. Mr. Lawande further submitted that the impugned judgment and order of acquittal deserves to be quashed and set aside and the accused convicted for the above referred offences. Mr. Lawande further submitted that considering that two eye-witnesses had seen the accused for quite sometime, there was no need to hold test identification parade and, therefore, the finding recorded by learned Magistrate that test identification parade ought to have been held, is unsustainable in law. Mr. Lawande placed reliance upon the judgment of the Apex Court in the case of SheoShankar Singh Vs. State of Jharkhand and another; (2011)3 SCC 654 . 8. Per contra, Mr. Mulgaonkar, learned Counsel for the accused submitted that the view taken by learned Magistrate is a probable view and having regard to the settled law that unless the findings recorded by learned Magistrate are perverse, no interference is warranted in appeal against acquittal, no case has been made out by the appellant for interference with the impugned judgment and order by this Court. Mr. Mr. Mulgaonkar further submitted that the finding given by learned Magistrate that test identification parade was required, cannot be said to be totally perverse and there is absolutely no evidence on record as to how the investigation officer came to know that PW2 and PW4 were the eye-witnesses to the incident, more particularly having regard to the fact that their statements were recorded on the next date i.e. on 16/01/2006. Mr. Mulgaonkar further submitted that no case has been made out for interference by this Court with the impugned judgment and order since the view taken by learned Magistrate is a probable view. In support of his submission that the test identification parade was a must, Mr. Mulgaonkar placed reliance upon the following judgments: (i) SambhajiHindurao Deshmukh Vs. State of Maharshtra; (2008)11 SCC 186 . (ii) SiddankiRam Reddy Vs. State of Andhr Pradesh; (2010)7 SCC 697 . (iii) KrishanKumar Malik Vs. State of Haryana; ACR 2011 (II) 134 SC. 9. I have carefully considered the rival submissions, perused the record and the judgments relied upon. 10. The prosecution in order to prove the case against the accused examined 13 witnesses namely PW1-Luis Dias, PW2-Gurunath Naik, PW3-Dr. Girish Kamat, PW4Gajanan Priolkar, PW5-Prajaktha Vengurlekar, PW6-Chetan Naik, PW7-Deepak Pednekar-PSI, PW8-Sampurna Tilve, PW9-Yeshwant Naik, PW10-Salim Shaikh-PI, PW11-Nilesh Shirodkar, PW12-Kamal Barge, PW13-Rupesh Gawas. 11. The prosecution has heavily relied upon the two eye-witnesses i.e. PW2-Gurunath Naik and PW4-Gajanan Priolkar to establish the offences against the accused. PW2Gurunath Naik claimed that on 15/01/2006, at about 4 p.m. he left Panaji to proceed towards Dongari on his scooter and at Pillar, he noticed that some program was going at Father Agnel College. When he reached at Dhakte Neura where there was slope, he noticed one scooter overtaking him which was driven by a boy with a lady pillion rider in a fast speed and when he reached the speed breaker, the scooter jumped and lady pillion rider was flung off the scooter and dashed on the electric pole which was on the left side of the road ahead of the speed breaker. She sustained head injury and she fell unconscious. The said scooterist was unaware of the said fact and he proceeded ahead and after sometime, immediately came back taking U turn. He saw him and the girl and ran away towards Pillar side. He identified the accused as the same person. She sustained head injury and she fell unconscious. The said scooterist was unaware of the said fact and he proceeded ahead and after sometime, immediately came back taking U turn. He saw him and the girl and ran away towards Pillar side. He identified the accused as the same person. He stated that the scooter was bearing registration No.GA01-Y-3981. Thereafter, many people gathered. Some students from Pillar college also came. Later on, he came to know the name of the girl as Shama Shirodkar. On the next day, he identified the accused at Police Station. Thereafter, the girl succumbed to injuries. In cross-examination, he stated that the speed breaker at the spot was a single speed breaker and not rumbled. He was confronted with the police statement wherein he had not stated that the accused went ahead and thereafter came back taking U turn. The witness could not give any explanation for the said omission. He denied the suggestion that the scooter was not driven in fast speed. He denied the suggestion that he was not present at the time of incident or that to oblige the police, he deposed falsely. He admitted that he did not know the accused, but he had seen him at the time of incident for the first time and thereafter at the Police Station. 12. PW4-Gajanan deposed that he was residing at Dhakte Neura at about 4.30 p.m. and was standing outside the gate. At that time, he noticed one boy coming in fast speed from Pillar side on Vespa scooter bearing registration No.GA01-Y-3981 along with lady pillion rider and when he reached the speed breaker at Dhakte Nerua, the scooter jumped and the lady pillion rider was flung off the said scooter. Her head hit the electric pole which was by the side of the road. The boy went ahead, took U turn and came at the spot. He looked at the injured pillion rider and sped away with his scooter. He identified the accused as scooter rider. He stated that he did not approach the girl as he was scared. On 16/01/2006, he was called at Agacaim Police Station and his statement was recorded. He claimed that on the day of accident itself, he came to know the name of the girl, who had expired as Shama Shirodkar and the scooterist as Nishant Surlekar. He stated that he did not approach the girl as he was scared. On 16/01/2006, he was called at Agacaim Police Station and his statement was recorded. He claimed that on the day of accident itself, he came to know the name of the girl, who had expired as Shama Shirodkar and the scooterist as Nishant Surlekar. In cross-examination, he was confronted with the statement in which he did not state that he was standing near the gate. He further stated that the distance between his house and Dhakte Bhat was about 2 Kilometres. He denied all the suggestions put that he was deposing falsely and he had not witnessed the incident or that he had not seen the accused on the date of the incident and he identified him in the Court as he was sitting in the dock as accused. He admitted that no identification parade was held by the police. 13. The prosecution also relied upon the statements of PW12-Kamal Barge and PW13Rupes Gawas. PW12-Kamal Barge deposed that in the year 2006, she was student of Goa College of Music, Altinho, who new Shama, who was junior student in the same college. She deposed that on 15/01/2006, there was a programme at Pillar and she was present along with Shama along with the other students and the teacher. She saw Shama. At the time when we were waiting for lunch, she saw the accused beside Shama who told her that he was her cousin brother. She identified the accused as the said person. After lunch, they went to Pandal at about 3.30 to 4 p.m. Shama informed the teacher that she was going home with the accused. After sometime, the accused came running and started searching someone and asked her as to where was the teacher and Shama had met with an accident. He did not tell her where the accident had taken place, but he was nervous and scared. Thereafter, she along with her friends informed the teacher and went to the spot and saw Shama. She was covered with white cloth. In the cross-examination, she stated that her statement was recorded as per her say, but she did not know the accused person. There was no identification parade held to identify the accused. She did not know whether the accused was cousin of Shama. She was covered with white cloth. In the cross-examination, she stated that her statement was recorded as per her say, but she did not know the accused person. There was no identification parade held to identify the accused. She did not know whether the accused was cousin of Shama. She denied the suggestion that she had falsely identified the accused to be cousin of Shama as he was present in the Court on that day. She further stated that Shama had approached the teacher, but she neither knew whether she had taken permission of the teacher nor she knew the conversation between the teacher and Shama. She was confronted with the police statement in which it was not recorded that the accused came running and asked where the teacher was. She denied the suggestion that the accused came running and enquired about the teacher and/or that he was scared and nervous. 14. PW13-Rupesh Gawas deposed that he was student of Goa College of Music, Altinho in the year 2006 and he knew Shama Shirodkar as she was his batch mate. On 15/01/2006, there was Goa Yuva Mahotsav at Pillar. At about 4 p.m., he saw Shama leaving the pandal and he enquired from her as to where she was going and she replied that she was going with her cousin. After about 5 to 10 minutes he came to know that accident had occurred. He along with her friends proceeded to spot and found that head of Shama was smashed and she was dead and at the spot he saw the accused, who was holding Shama's bag in his hand. He asked the accused as to how he had the bag of Shama in his hand and whether he was with her. The accused was sad and nervous. The accused handed over the bag to him. There were many more students present. In cross-examination, he stated that he knew PW12-Kamal. He claimed that he had reached the spot first and thereafter, PW12-Kamal had come. He did not know the accused prior to the accident. He admitted that no identification parade was held by the police. He denied the suggestion that he had falsely identified the accused since he was sitting in the dock. He claimed that he had reached the spot first and thereafter, PW12-Kamal had come. He did not know the accused prior to the accident. He admitted that no identification parade was held by the police. He denied the suggestion that he had falsely identified the accused since he was sitting in the dock. He also denied the suggestion that he had not seen the accused holding Shama's bag and that he was scared and nervous or that he had handed over the bag to him. He was confronted with the police statement in which it was not stated that he questioned the accused regarding Shama's bag. He denied the suggestion that he had not visited the spot of incident or that he had deposed falsely. 15. Insofar as the two eye-witnesses namely PW2-Gurunath Naik and PW4-Gajanan Priolkar are concerned, no doubt both of them claimed that they had seen the accused driving the scooter on which there was a female pillion rider and that at the speed breaker at Dhakte Neura, the scooter jumped off and the girl was flung and her head dashed against electric pole by the side of the road. Insofar as PW2-Gurunath Naik is concerned he has categorically stated that the accused was shown in the police station on 16/01/2006. Moreover neither PW2-Gurunath nor the Investigating Officer has deposed as to how investigating officer came to know that PW2 and PW4 were the eye-witnesses to the incident. Considering the circumstances of the case, more particularly, having regard to the fact that several persons had gathered at the spot, where the dead body of Shama was lying after some time of the accident, when the police had arrived, it was necessary for the Investigating Officer to state as to how he came to know that PW2 and PW4 were the eye-witnesses. In the absence of any such explanation, I find it difficult to place reliance upon the testimonies of PW2 and PW4 in support of the prosecution case that they had seen the accident on 15/01/2006, as claimed by them. Moreover, insofar as PW2-Gurunath is concerned he candidly admitted that the accused was shown at the Police Station on 16/01/2006. In the case of Krishan Malik (supra), the Apex Court has held that once the accused is shown prior to the identification in the Course, identification parade becomes meaningless. Moreover, insofar as PW2-Gurunath is concerned he candidly admitted that the accused was shown at the Police Station on 16/01/2006. In the case of Krishan Malik (supra), the Apex Court has held that once the accused is shown prior to the identification in the Course, identification parade becomes meaningless. No identification parade can be held in the Police Station. The Apex Court more than half a century back in the case of RamkrishnaSharma Vs. State of Bombay; AIR 1955 SC 104 , held that the test identification parade cannot be held by the police even in the presence of panch witness and such an identification is hit by Section 162 of the Code of Criminal Procedure. Yet, in spite of the clear ratio laid down by the Apex Court, in the present case, the accused was identified in the police station thereby rendering the prosecution evidence suspicious. 16. Insofar as the identification parade is concerned, I do not deem it necessary to refer threadbare all the authorities relied upon by Mr. Mulgaonkar. Insofar as the identification parade is concerned, the law is settled that if the accused is not known to a witness it is necessary for the Investigating Officer to hold test identification parade in order to lend assurance to the evidence of such a witness in the Court. No doubt, the test identification parade by itself is not substantive evidence and it is a part of investigation, but the same is vital in order to lend assurance to the identification of the accused by a witness in the Court. In the present case, what is fatal to the prosecution case is that there is no evidence forthcoming from the prosecution as to how the Investigating Officer came to know that PW2 and PW4 were the eye-witnesses to the incident. If it was the case of the prosecution that these two witnesses were present at the spot and they had claimed to be eye-witnesses, it was expected of the Investigating Officer to record their statements forthwith. It is settled law that the statements of the eyewitnesses are expected to be recorded at the earliest. 17. Moreover, both these witnesses have claimed that the their statements were recorded on 16/01/2006 at the police station. There is absolutely no evidence on record to justify their going to the police station on the next day. It is settled law that the statements of the eyewitnesses are expected to be recorded at the earliest. 17. Moreover, both these witnesses have claimed that the their statements were recorded on 16/01/2006 at the police station. There is absolutely no evidence on record to justify their going to the police station on the next day. The Investigating Officer did not state that he had called two witnesses for recording their statements in the police station on 16/01/2006. 18. It is settled law that when the crime is investigated by the Investigating Officer, he has to give details of the investigation carried out by him. But perusal of the evidence of Investigating Officers i.e. PW7-Deepak Pednekar-PSI and PW10-Salim Shaikh-PI discloses that except for a formal deposition, all the details of the investigation carried out by them, have not been deposed by them. 19. Moreover, there is no cogent evidence to prove that deceased Shama had left with the accused on a scooter. This was necessary to lend assurance to the prosecution case. Insofar as the evidence of PW12-Kamal is concerned, she was confronted with the police statement that after Shama left the festival place, where the festival being held, the accused came running and asked as to where their teacher was. Even if the statement made by PW12-Kamal that Shama had met with an accident is accepted, the same by itself is not sufficient to come to the conclusion that it was the accused who was driving the scooter on which Shama was pillion rider. Insofar as the evidence of PW13-Rupesh Gawas is concerned, I find it extremely difficult to place reliance upon the testimony inasmuch as he claimed that he went to spot first and he saw the accused holding Shama's bag, and the accused handed over the bag to him. It is the case of the prosecution that after the accident, the accused had fled from the spot and, therefore, the evidence of PW13-Rupesh goes contrary to the prosecution case itself. I, therefore, find it difficult to place reliance upon the testimony of PW13. 20. PW9-Yeshwant Naik, who was examined to prove that the scooter involved in the accident was belonging to him and that he had allowed the accused to use it on 15/01/2006 in the afternoon, turned hostile. No doubt, he admitted that the said scooter was belonging to him. 20. PW9-Yeshwant Naik, who was examined to prove that the scooter involved in the accident was belonging to him and that he had allowed the accused to use it on 15/01/2006 in the afternoon, turned hostile. No doubt, he admitted that the said scooter was belonging to him. However, he flatly denied the suggestion that he had given the said scooter to the accused on the date of accident. He was confronted with the police statement to establish that he had given the scooter to the accused on that day but nothing tangible has been brought on record in the cross-examination of PW9Yeshwant. As such, his evidence is of no use to the prosecution. 21. There is no serious dispute that deceased Shama died on account of injuries suffered in vehicular accident. The same is proved by the prosecution through PW3-Dr. Girish Kamat who conducted postmortem on the dead body of Shama. His evidence clearly discloses that Shama died on account of craniocerebral injury and damage to face as a result of blunt force impact. However, in the absence of any cogent evidence to establish that it was the accused who was driving the scooter on which Shama was pillion rider, the evidence of PW3-Dr. Kamat does not advance the case of the prosecution. 22. It is well settled law that in an appeal against acquittal, the Appellate Court would interfere only if the findings recorded by the Magistrate are totally unsustainable in law and perverse. Although all the reasons given by the Magistrate are not sustainable in law, the view taken by learned Magistrate for acquitting the accused cannot be said to be totally perverse warranting interference by this Court in appeal. In my view, the view taken by learned Magistrate, though for different reasons, appears to be probable. Therefore, in my view, no interference is warranted with the impugned judgment and order. 23. For the reasons aforesaid, I do not find any merit in the present appeal. Consequently, the appeal is dismissed. 24. The bail bond executed by the accused stands discharged.