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2013 DIGILAW 1461 (BOM)

Nanda L. Naik v. State of Goa

2013-07-30

R.C.CHAVAN

body2013
JUDGMENT 1. This revision questions the concurrent findings of the learned Judicial Magistrate, First Class, Ponda and learned Assistant Sessions Judge, Panaji holding the applicant guilty of the offences punishable under Sections 279 and 304-A of Indian Penal Code and sentencing him to pay fine of Rs.1,000/on the first count and suffer Rigorous Imprisonment for four months and fine of Rs.4,000/- on the second count. 2. The facts, which are material for deciding this revision are as under: It is not disputed that the applicant was driving the Truck No.GA-02-U-7343 loaded with some metal and was proceeding from Ponda to Gaune side on the afternoon of 09/10/2007. It is likewise not disputed that the Truck collided with the scooter bearing No.GDK-3261 causing sever injuries to Khushali Yadu Gawade, who was riding the scooter and which injuries led to death of Khushali Gawade. On police being informed of the incident by PW5- Naresh Gawade on telephone, the police reached the spot, performed panchanama of the spot and commenced investigation of a complaint by PW6-Head Constable Shamrao Dessai. The victim had already been shifted to Hospital, Madkai where he was pronounced dead. Inquest was performed on the body of the victim at P.H.C., Madkai and then the body was sent for postmortem examination. In the course of examination, the police caused the vehicle to be examined by Motor Vehicle Inspector-PW8 Sanjay Kalal, recorded the statements of the witnesses and then sent charge-sheet in the Court of Judicial Magistrate, First Class, Ponda. 3. Since the applicant pleaded not guilty to the particulars of substance of accusation explained to him, he was put on trial, at which the prosecution examined eight witnesses. The defence of the applicant was that the applicant was not driving his truck in a rash and negligent manner and that the accident occurred because the victim himself was, possibly, while driving the scooter, carrying the sack of coconuts on his scooter at the place meant for keeping feet for applying brakes and, therefore, dashed against the Truck and met with his death. The applicant had not fled from the spot and was present when the investigation commenced. The defence did not find favour with the learned Magistrate as well as the learned Assistant Sessions Judge and this is how, the applicant is before this Court. 4. The applicant had not fled from the spot and was present when the investigation commenced. The defence did not find favour with the learned Magistrate as well as the learned Assistant Sessions Judge and this is how, the applicant is before this Court. 4. I have heard learned Counsel for the applicant and learned Public Prosecutor for the State and with the help of both, I have gone through the entire evidence on record; 5. PWI-Sunny Naik is a panch at the panchanama of spot and sketch which was drawn up and which was proved at exhibit 13 by this witness. The panchanama of spot shows that the place where the accident took place was about one metre away from right hand side edge of the road as one proceeds from Ponda to Gaune i.e. the direction in which the applicant's truck was moving. The left wheel of the truck was possibly at 4.40 metres away from the left edge of the road. Thus, the sketch and Panchanama would show that the applicant's truck had substantially come to the right hand side where it dashed against the scooter of the victim. The truck was then taken to the left hand side and was parked at a distance of about 25 metres away from the accident spot. The scooter itself was shown to have been found about 6 metres towards Ponda side on the right hand side of the road, if one looks at the road from the applicant's view point. Beyond this scooter, towards Ponda side, a chappal was found at a distance of 1.15 metres and blood stains were found 2 metres beyond this point. Another chappal was found about 5 metres behind the scooter and 1.50 metres from the accident spot. PW1-Sunny Naik duly proved the panchanama as well as the sketch which was prepared by PW6-Head Constable Shamrao Dessai. In the cross-examination, he reiterated that the position of the accident spot was correctly shown on the rough sketch prepared at the time of panchanama. This panchanama of spot was drawn between 4.00 p.m. and 5.15 p.m. 6. PW2-Dinesh Naik and PW5 Naresh Gawde are panchas at inquest panchanama which was drawn up at P.H.C. between 4.00 p.m. and 5.00 p.m. by PW7-PSI Pravin Gawas. This inquest panchanama was proved at exhibit 17. 7. PW3-Dr. Girish Kamat proved the notes of postmortem examination at exhibit 19. PW2-Dinesh Naik and PW5 Naresh Gawde are panchas at inquest panchanama which was drawn up at P.H.C. between 4.00 p.m. and 5.00 p.m. by PW7-PSI Pravin Gawas. This inquest panchanama was proved at exhibit 17. 7. PW3-Dr. Girish Kamat proved the notes of postmortem examination at exhibit 19. About this, there is no dispute. PW 4- Vyanketeshwar Reddy is the master of the applicant who stated that the applicant was driving the truck at the relevant time. He had reached spot after the applicant informed him of the incident. 8. PW5-Naresh Gawade claims to be an eye-witness to the incident. He stated that he was also proceeding from Ponda towards Madkai on his scooter. The applicant's truck overtook the scooter. He noticed that one scooter was coming from opposite direction. The applicant's truck went towards the said scooter and dashed the scooter by the right hand side of the truck. The scooterist fell due to impact in trench. He identified the scooterist as Khushali, who was his neighbour. He stated that he had gone to P.H.C. and he too attested the inquest panchanama at exhibit 17. In his cross-examination, he stated that he was at a distance of 40 metres behind the truck at the time of accident and that he had not actually seen the collision. When he reached the accident spot, he saw the truck had already proceeded 25 metres ahead and the scooter had fallen down. He claims to have informed the police about 2.45 p.m. on telephone and police came to the spot between 3.00 p.m. and 3.15 p.m. He stated that two policemen who had come with PWI Pravin Gawas had taken the victim to the Hospital. He stated that PW6-Head Constable Shamrao Dessai made enquiries with the accused in his presence and thereafter, the panchanama was drawn up at the spot. He had added that he proceeded to Hospital behind the police vehicle. He stated that when he returned from P.H.C. to the accident spot at about 5.00 p.m. to 5.30 p.m., then, spot panchanama was commenced by Shamrao Dessai. He also stated that spot panchanama was conducted by Shamrao Dessai between 4.00 p.m. and 5.15. p.m. He claimed that he had shown the spot to the police. 9. PW6-Shamrao Dessai stated that he received a telephone call at about 2 p.m. and then went to the spot. He also stated that spot panchanama was conducted by Shamrao Dessai between 4.00 p.m. and 5.15. p.m. He claimed that he had shown the spot to the police. 9. PW6-Shamrao Dessai stated that he received a telephone call at about 2 p.m. and then went to the spot. He claims to have drawn up panchanama of spot and sketch. He stated that he lodged the complaint which he proved at exhibit 25. In this complaint, he had stated that the spot of accident was shown by PW1-Sunny Naik. There is reference in the complaint that some pieces of glass of scooter were found on the spot and that was taken to be the point of impact. The next two sentences in the complaint, are as under: "Before the point of impact there are brake marks on the road. On taking the distance, it is found to be 10.15 metres." 10. In cross-examination, PW6 Shamrao Dessai admitted that in the panchanama at exhibit 13, it is not mentioned that the spot was shown by Sunny Naik. He in fact stated that the accident spot was shown by PW5-Naresh Gawade and that Naresh Gawade, thereafter, immediately left. 11. The evidence ofPW7-Pravin Gawas and PW8-Sanjay Kalal, Police Sub Inspector and Motor Vehicle Inspector respectively is not significant. 12. Learned Counsel for the applicant submitted that the conclusions drawn by the Courts below are based on presumptions and not supported by any evidence. He submitted that there is nothing to show that the applicant's truck had in fact come to the wrong side or that the applicant was reckless or driving or the applicant lacked in care on his part. He submitted that the claim of PW6Shamrao Dessai that the spot was shown by Naresh Gawade is falsified by Shamrao Dessai's own recital in the complaint at exhibit 25. Now, Sunny Naik does not claim that he had shown the spot and Sunny Naik would not have any business to show the spot since he had not seen the incident and was only called at the spot for spot panchanama. PW5- Naresh Gawade could not have shown the spot because he had already left after the injured was taken to the Primary Health Centre and was present at the inquest panchanama which was drawn up at the same time at the P.H.C. when spot panchanama was being drawn up at the spot. PW5- Naresh Gawade could not have shown the spot because he had already left after the injured was taken to the Primary Health Centre and was present at the inquest panchanama which was drawn up at the same time at the P.H.C. when spot panchanama was being drawn up at the spot. Thus, the attempt of the prosecution to show that PW5-Naresh Gawade showed the spot, is falsified by the record. 13. Learned Public Prosecutor submitted first that one such small discrepancy need not lead to rejection of the evidence of PW5-Naresh Gawade or PW6-Shamrao Dessai. He next submitted that the trial Court had advantage of seeing the witness in person and had properly appreciated the evidence. He further submitted that the evidence was reappraised by the Appellate Court and this Court, exercising the revisional jurisdiction, may not go into meticulous reappreciation of the evidence. There can be no doubt that there are limitations in exercise of revisional jurisdiction and that ordinarily, findings on appreciation of evidence relating to facts by the trial Court should not be disturbed, particularly when the findings are upheld by the appellate Court. 14. However, in this case, the conclusions drawn are based solely on what PW5-Naresh Gawade could have or rather should have indicated to the Investigating Officer, since he claims to have been behind the truck driven by the applicant. Now if Naresh Gawade had not shown the spot as can be seen from the recitals in FIR at exhibit 25, as also from the impossibility of Naresh Gawade having been present at the time of spot panchanama, the whole panchanama and sketch drawn, become suspicious. It- is enigmatic as to how the accident spot was fixed. Though there is reference to some broken pieces of glass being found in the FIR, the panchanama itself does not contain any recital about such broken pieces of glass. Therefore, if this accident spot itself is taken to be unfixed or uncertain, the whole foundation on which the judgment of the Courts below are delivered, would become shaky. 15. Learned Public Prosecutor submitted that it is not only 'finding of pieces of glass which led to fixing the spot of incident. He submitted that there are brake marks stretching over 10.15 metres as shown in the sketch at exhibit 14. He submitted that these brake marks stretched right upto the accident spot. 15. Learned Public Prosecutor submitted that it is not only 'finding of pieces of glass which led to fixing the spot of incident. He submitted that there are brake marks stretching over 10.15 metres as shown in the sketch at exhibit 14. He submitted that these brake marks stretched right upto the accident spot. Therefore, these brake marks in fact fixed the spot of accident which is towards right side of the road as one travels from Ponda to Gaune. Learned Public Prosecutor, therefore, submitted that it is clear that the applicant's truck had crossed the dividing line and had come substantially towards right hand side while negotiating the curve and had given dash to the victim's scooter. He submitted that when there was no vehicle on the left hand side, there was no warrant for the applicant to move towards right. Learned Public Prosecutor also submitted that when the road was bending, it was necessary for the applicant to ensure that there was a clear view of the traffic from the opposite side before taking his truck to the right side. He submitted that this showed recklessness on the part of the applicant which led to accident. Learned Public Prosecutor submitted that the conduct of the applicant would show that the applicant's driving was wanting in care which he was obliged to take and, therefore, supported the conclusions drawn by the Courts below. 16. Though the learned Public Prosecutor sought to contend that the brake marks stretched right upto the spot of accident, the recitals from the complaint at exhibit 25 which have been" reproduced in the earlier part of the judgment; would show that the brake marks may be at the distance of 10.15 metres from the point of impact as shown on the sketch and not stretching over the distance of 10.15 from point of impact and, therefore, the fixing of point of impact itself is doubtful. What is certain is that the brake marks existed on the spot, as shown in the sketch as also position of the truck and scooter. The point of impact shown is a matter of conjecture. What is certain is that the brake marks existed on the spot, as shown in the sketch as also position of the truck and scooter. The point of impact shown is a matter of conjecture. Even so the learned Public Prosecutor submitted that the brake marks shown in the sketch also show that the truck was towards right had side of the dividing line and, therefore, the applicant was rash and negligent in driving the truck, having taken the truck to the right hand side when the road was turning towards right. These very brake marks can be interpreted to conclude that the applicant had applied brakes well before the collision occurred. Even after applying brakes, if the collision did occur, it could not be attributed to rashness and recklessness on the part of the applicant, but at worst to an error of judgment. Therefore, first the evidence of PW5-Naresh Gawade, who is a star witness of the prosecution, is discrepant. Secondly, PW6-Shamrao Dessai makes conflicting statements as to who showed the spot. Thirdly, the accident spot as shown in exhibit 14 is not certain and lastly existence of brake marks would not be consistent with recklessness or want of care. The applicant was therefore entitled to benefit of doubt. It may be observed that it is not that the brake marks are found after the so called point of impact. Brake was applied well before the collision occurred. Therefore, though it is unfortunate that a person has died in the accident, since for recording conviction and tampering with the liberty of a person, it would have to be shown beyond doubt that the applicant was wanting in care or reckless in his driving, the applicant's conviction cannot be upheld. 17. In view of this, the revision is allowed. The conviction of the applicant for the offences punishable under Sections 279 and 304-A of Indian Penal Code is set aside. He is acquitted of the said offences. Fine, if paid, may be refunded to him. Revision allowed.