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2013 DIGILAW 1457 (BOM)

State v. Joel Correia

2013-07-30

R.C.CHAVAN

body2013
JUDGMENT :- This appeal questions judgment and acquittal of the respondent rendered by the learned JMFC, Mapusa, Goa, upon trial of Criminal Case no.227/S/2009/A before her. 2. Facts which are material for deciding this appeal are as under : On 28/04/2009, the respondent was driving his Scorpio jeep bearing no.GA-03-C-6049 and was proceeding from Chogam road towards Pilerne, on a road which was turning towards the respondent's right and also at a down hill slope. The first informant Dr. Lotlikar was driving up hill from the opposite direction in his Matiz car bearing no.GA-0 1-R-2502. The vehicles collided resulting in some injuries to Dr. Lotlikar, his wife and his son, who were travelling in the car. On a report by Dr. Lotlikar, offence was registered and investigation commenced. The police drew panchanama of the spot, as well as sketch of the spot. Persons injured were referred for medical examination. Police recorded statement of witnesses and on completion of investigation filed charge sheet. 3. The learned JMFC, Mapusa explained particulars of the offence to the respondent. Since he pleaded not guilty, he was put on trial at which prosecution examined 7 witnesses to bring home the guilt of the respondent. The respondent examined his neighbour and his father in his defence. After considering the evidence, the learned Magistrate held that it was difficult to come to the conclusion as to whether the respondent was really rash and negligent in driving his vehicle, as there was no cogent evidence to establish the guilt of the respondent beyond reasonable doubt. She therefore proceeded to acquit the respondent. Aggrieved thereby the State has filed this appeal. 4. I have heard the learned Additional Public Prosecutor for the State and with his help, I have gone through the evidence on record. PW1/Girish Pednekar is a pancha at the spot panchanama in whose presence the panchanama at exhibit 7 and the sketch of the spot was drawn up by PW5/Head constable Ramchandra Sawant, who had reached the spot on receiving a telephonic message. PW1/Girish Pednekar incidentally is related to the victim PW2/Dr. Lotlikar. PW1/Girish Pednekar has been called to the spot by PW2/Dr. Lotlikar. PW2/Dr. Lotlikar and PW3/Smita Lotlikar, wife of Dr. Lotlikar, stated about the accident. Both of them stated that PW2/Dr. Lotlikar was driving the Matiz car in a rather slow speed, because they were climbing up hill. PW1/Girish Pednekar incidentally is related to the victim PW2/Dr. Lotlikar. PW1/Girish Pednekar has been called to the spot by PW2/Dr. Lotlikar. PW2/Dr. Lotlikar and PW3/Smita Lotlikar, wife of Dr. Lotlikar, stated about the accident. Both of them stated that PW2/Dr. Lotlikar was driving the Matiz car in a rather slow speed, because they were climbing up hill. They were on the left side of the road. Suddenly the Scorpio jeep driven by the respondent came and gave a dash to the appellant which resulted in their car being pushed to the extreme left of the road. They stated that they sustained injuries. Their son was also injured and all of them were treated by PW6/Dr. Rekha Pednekar and PW7/Dr. Shailesh Hede. The police had seized the vehicles to be examined by motor vehicle Inspector, PW4/Arun Shetgaonkar. 5. The learned Additional Public Prosecutor submitted that the evidence of PW2/Dr. Lotlikar and his wife PW3/Smita Lotlikar is enough to show that respondent drove his Scorpio jeep in a rash and negligent manner and gave a dash to the Matiz car. He submitted that the evidence of DW1/Celestin D'Souza and DW2/Anthony Correia was thoroughly unreliable as DW1/Celestin D'Souza as well as DW2/Anthony Correia, both curiously claimed that they were travelling by the same road at the same time in their separate two wheelers and both claimed that Dr. Lotlikar overtook their two wheelers and, therefore, in the process of overtaking their vehicles, received a dash from the Scorpio jeep. The learned Additional Public Prosecutor also submitted that neither the occupants of the Scorpio jeep were examined nor did the respondent himself enter the witness box. Therefore, he submitted that the act of the incident narrated by Dr. Lotlikar and his wife should have been believed by the learned trial Magistrate. He also pointed out that the sketch of the spot clearly shows that the Scorpio Jeep was on the wrong side and the Matiz car was on the extreme left of road. 6. I have carefully considered the arguments advanced. There can be no doubt that the evidence of DW1/Celestin D'Souza and DW2/Anthony Correia may not be believable. There can also be no doubt that the respondent could have examined the occupants of the Scorpio jeep. 6. I have carefully considered the arguments advanced. There can be no doubt that the evidence of DW1/Celestin D'Souza and DW2/Anthony Correia may not be believable. There can also be no doubt that the respondent could have examined the occupants of the Scorpio jeep. But it cannot be forgotten that the responsibility to prove the charge rests on the prosecution and there was no responsibility on the defence to examine any defence witness. Therefore, whether the prosecution proved the guilt of the respondent would have to be decided from the evidence of the prosecution witnesses who have been examined. The sketch of the spot would show that it was not that the Scorpio jeep had come on the extreme right of the road. Even after the mishap there was 1.10 metres of road left on the right hand side and 1.70 metres left on the left hand side of the vehicle. It has also to be noted that according to PW2/Dr. Lotlikar, the Matiz car and the jeep remained at the same place after the mishap. However, the evidence of PW3/Smita Lotlikar would show that, as a result of dash, the Matiz car went off the road towards the left hand side. It is also curious to note that while PW2/Dr. Lotlikar claimed that before the accident he in fact remarked to his wife that the jeep was likely to give a dash to the car, his wife says that there was no such conversation with her husband prior to the accident. 7. That apart, the fact that both the vehicles were collided by their right front sides and the fact that the car was pushed towards the left side of the road would indicate that it was the Matiz car which was negotiating the turn and, therefore had come towards the right hand side and, therefore, on being dashed on the right front side it went towards the left side. Therefore, it cannot be said that the learned Magistrate was in error in observing that it was not possible to come to a definite conclusion that the accident occurred due to rash and negligent driving by the respondent. 8. Since a judgment of acquittal may not be set aside, unless it is shown that the judgment is perverse or improbable, there is no question of this appeal being allowed. The appeal is consequently dismissed. Appeal dismissed.