Research › Search › Judgment

Bombay High Court · body

2012 DIGILAW 1934 (BOM)

State of Goa v. Dinesh Raikar

2012-10-09

A.P.LAVANDE

body2012
Judgment Heard Mr. Lawande, learned Additional Public Prosecutor for the appellant and Mr. Kamat, learned Counsel for the respondent. 2. By this appeal, the appellant takes exception to the judgment and order dated 30.09.2009 passed by the learned Judicial Magistrate First Class, Canacona in Criminal Case No. 41/S/07, acquitting the respondent of offences punishable under Sections 279, 304-A of the Indian Penal Code and Section 134(a) and (b) of Motor Vehicle Act. 3. The respondent was prosecuted on the allegation that on 24-05-2007 at 11:45 hours at Saleri, Cola, near fish market, the accused was driving the rickshaw bearing No. GA02 U-1090 which was proceeding from Canacona to Cola side and on reaching at Saleri, Cola, drove the rickshaw in a rash and negligent manner and dashed against a pedestrian girl, Ms. Anisha Pagi, aged about 8 years who sustained injuries and succumbed to the injuries on the way to the hospital; the accused ran away from the spot without giving first aid to the injured and did not inform the police about the accident. 4. Pursuant to the F.I.R. lodged by PW-8, Ashok Shet, investigation was taken up which ultimately culminated in filing of the chargesheet. 5. In Criminal Case No. 41/S/07, the prosecution examined nine witnesses and produced several documents to prove rashness and negligence on the part of the accused. The statement of accused under Section 313 of the Code of Criminal Procedure was recorded. The accused examined himself as DW-1 and Pandhari Dessai as DW-2. The learned Magistrate upon appreciation of evidence, held that the offences alleged against the accused, were not proved and consequently, acquitted the accused. 6. The learned Magistrate held that the evidence of PW-3, Dayanand Pagi did not establish rashness and negligence on the part of the accused and further held that defence of the accused was that the deceased girl was trying to cross the road from right side to left side was probable. The blood marks shown on the sketch disclosed that the deceased girl had fallen close to the place near the spot of the accident. Therefore, the version of the prosecution that the accused was driving the vehicle in fast speed becomes doubtful. 7. Having heard Mr. Lawande, learned Additional Public Prosecutor for the appellant and Mr. The blood marks shown on the sketch disclosed that the deceased girl had fallen close to the place near the spot of the accident. Therefore, the version of the prosecution that the accused was driving the vehicle in fast speed becomes doubtful. 7. Having heard Mr. Lawande, learned Additional Public Prosecutor for the appellant and Mr. Kamat, learned Counsel for the respondent, I am of the considered opinion that all the findings recorded by learned Magistrate for acquitting the accused cannot be said to be perverse warranting interference in appeal against acquittal. 8. The prosecution has relied on evidence of three witnesses PW-2, Jayanti Pagi, PW3, Dayanand Pagi and PW-4, Ashok Pagi to prove rashness and negligence on the part of the accused. In so far as PW-2, Jayanti Pagi is concerned, she deposed that she came to know that a girl had met with an accident. PW-3, Dayanand Pagi deposed that the vehicle driver came in fast speed and dashed against a girl Anisha and thereafter the accused fled from the spot towards Cola side and he chased the rickshaw by motocycle with one Afonso D'Souza and Ashok Pagi. The rickshaw was stopped about 300 metres away but the accused fled from the spot. His evidence did not disclose the point of impact i.e. the spot where actually rickshaw dashed the deceased girl. Merely stating that the accused was driving rickshaw in fast speed is not sufficient to hold that the accused drove the vehicle in rash and negligent manner resulting in the accident. It is the case of prosecution that the deceased girl Anisha was standing on the road for 2 minutes where the accident has occurred. There was no reason for the deceased girl to stand for 2 minutes on the road at the spot where the accident has occurred. 9. The evidence of PW-4, Ashok Pagi also does not disclose the point of impact of the vehicle driven by the accused vis-a-vis the deceased girl. He does not even depose in examination in chief that vehicle was driven in fast speed. No doubt in the cross-examination he has stated that he had seen the pickup rickshaw coming in fast speed going towards the Cola side but he has not stated that the accused was driving in fast speed at the time when the accident occurred, which evidence was necessary to be proved by the prosecution. 10. No doubt in the cross-examination he has stated that he had seen the pickup rickshaw coming in fast speed going towards the Cola side but he has not stated that the accused was driving in fast speed at the time when the accident occurred, which evidence was necessary to be proved by the prosecution. 10. From the evidence of PW-1, Dilkush Pagi, who acted as the pancha witness to the scene of accident and even from the panchanama and sketch it is difficult to locate the point of impact of the vehicle, which was necessary to be proved when the defence taken by the accused was that the deceased girl had suddenly crossed the road from right side to left side. 11. No doubt, the accused and his witness in their evidence stated that the deceased girl was crossing the road from right side to left side. In my view, the defence taken by the accused becomes false in view of the post mortem report which has been duly produced by the prosecution. The evidence of PW-6, Avinash Pujari, who had conducted the post mortem on the dead body of Anisha Pagi, is corroborated by the post mortem report which discloses that deceased Anisha had head injury on the right side. This position has not been disputed by the accused. Therefore, it is evident that the vehicle must have dashed deceased Anisha on the right side. As per the sketch, the spot of accident is shown towards the left side of the road proceeding from Canacona to Cola. Therefore, in my view, the defence taken by the accused appears to be improbable. But, the prosecution evidence is not sufficient to prove that there was rashness and negligence on the part of the accused. Even if it is accepted that the accused was driving the vehicle at the speed of 30 to 35 kilometers per hour, the same by itself is not sufficient to hold that the accused was driving vehicle in rash and negligent manner, having regard to the fact that the prosecution has not led any cogent evidence to prove the point of impact between the vehicle and the deceased girl Anisha. 12. In view of the above position, the view taken by the learned Magistrate appears to be probable. 12. In view of the above position, the view taken by the learned Magistrate appears to be probable. It is well settled that in an appeal against an acquittal, the appellate Court should not interfere with the judgment unless the view taken by learned Magistrate is not borne out from the evidence on record and the findings recorded are perverse and the view taken is palpably wrong. Considering the evidence led by the parties, the order passed by the learned Magistrate acquitting the accused, cannot be faulted. 13. In the result, therefore, I do not find merit in the appeal. Consequently, the appeal stands dismissed. The bail bond executed by the respondent/accused, stands discharged.