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2013 DIGILAW 1585 (BOM)

Sudhir Halankar v. State

2013-08-13

R.C.CHAVAN

body2013
JUDGMENT : This revision is directed against concurrent findings of the learned Judicial Magistrate First Class, Mapusa and the learned Additional Sessions Judge, Mapusa whereby the Courts below have found the applicant guilty of offences punishable under Section 279 and 304-A of the Penal Code and Section 134 (a) and (b) of the Motor Vehicles Act and sentenced him to undergo simple imprisonment for a period of 3 months and to pay a fine of Rs.1,000/- or in default to undergo simple imprisonment for one month under Section 279 of the Penal Code, simple imprisonment for a period of 6 months and to pay a fine of Rs.5,000/- or in default to undergo simple imprisonment for two months under Section 304-A of the Penal Code and to pay a fine of Rs.500/- or in default to undergo simple imprisonment for 15 days under Section 134(a) and (b) of the Motor Vehicles Act. 2. The facts which are material for deciding this revision application are as under: On 10/10/2008, at about 6.25 p.m. the victim Noela Baretto was crossing the road between Panaji and Mapusa near JMJ hospital, Porvorim. The applicant was driving mini bus bearing no.GA-01-Z-6665. He gave a dash by his bus to the victim by going to the wrong side of the road. The victim was seriously injured and died on the spot. The applicant as well as the conductor of the bus fled from the spot. Police were informed. They came to the spot, performed panchanama of the spot, caused the dead body to be sent for post mortem after conducting an inquest and caused the bus to be examined by motor vehicle inspector. The police recorded statements of witnesses and on completion of the investigation sent the charge sheet to the learned Judicial Magistrate First Class, Mapusa. 3. The learned Magistrate explained the substance of accusation to the applicant who pleaded not guilty. Hence, he was put on trial at which prosecution examined in all 9 witnesses in its attempt to bring home guilt of the applicant. The applicant examined one witness in defence. After considering the prosecution evidence in the light of the defence of the applicant that it was victim herself who was at fault, the learned Magistrate came to hold the applicant guilty and convicted and sentenced him as aforementioned. The applicant examined one witness in defence. After considering the prosecution evidence in the light of the defence of the applicant that it was victim herself who was at fault, the learned Magistrate came to hold the applicant guilty and convicted and sentenced him as aforementioned. Aggrieved thereby, the applicant preferred an appeal before the Court of Sessions, who dismissed his appeal. This is how the applicant is before this Court. 4. I have heard the learned Counsel for the applicant and the learned Additional Public Prosecutor for the State and with the help of both, I have gone through the entire evidence on record. PW1/Luis Anthony D'Souza is a pancha at the panchanama of spot drawn up vide exhibit 7 and the sketch prepared vide exhibit 8. He states that he was called for drawing of the panchanama on 6th August. He also admitted that he was related to the victim. The learned Counsel for the applicant, therefore, submitted that since panchanama could not have been drawn up more than two months before the actual incident and since the witness is related to the victim, his evidence is thoroughly useless. There can be no doubt that the evidence of this witnesse has these two deficiencies. As for the first, it is not necessary that every witness should be able to tell the date correctly. Therefore, merely because the witness gave the date as 6th August that in itself cannot result in rejection of this testimony. As for his being related to the victim that too cannot be a ground to reject his evidence, though the police could have taken care to ensure that an independent witness was called for performing the panchanama. The panchanama was drawn up by PW8/Head Constable Balu Jadhav. PW8/Head Constable Balu Jadhav stated that on 10/10/2008 at about 6.25 p.m., he received information about the accident and after making entry of motor vehicle accident bearing no.172/08, he proceeded to the spot. He then states having recorded panchanama of spot. He states that PW2/Ravindra Wadiyar and PW7/Arvind Menezes, who were eye witnesses to the incident had told him about the accident. The panchanama at exhibit 7 however makes no reference to the presence of these two persons. However, the report given by PW8/Head Constable Balu Jadhav at exhibit 21 refers to the names of PW2 and PW7. He states that PW2/Ravindra Wadiyar and PW7/Arvind Menezes, who were eye witnesses to the incident had told him about the accident. The panchanama at exhibit 7 however makes no reference to the presence of these two persons. However, the report given by PW8/Head Constable Balu Jadhav at exhibit 21 refers to the names of PW2 and PW7. Though, the learned Counsel for the applicant had a serious objection to the reliance placed on the evidence of PW8/Balu Jadhav, there is no reason why PW8/Balu Jadhav should be preparing a false panchanama in order to implicate the applicant. 5. The question as to whether situation shown in the panchanama of spot could really have existed or not could be decided by evaluating the testimonies of PW2 and PW7, who claim to have seen the accident as also DW1/Tulshidas Chodankar, who was also present as an eye witness to the incident. PW2/Ravindra Wadiyar stated that on the incidental evening he was proceeding on a two wheeler from Panaji towards Mapusa where he noticed a lady crossing a road on a zebra crossing. He stated that a bus overtook him and then overtook another vehicle in a fast speed and then hit the victim, who was on the zebra crossing. He stated that the bus went ahead for about 15 metres, stopped and then the bus driver ran away. The witness identified the applicant as the driver of the bus. The argument of the learned Counsel for the applicant is that identification of applicant by PW2/Ravindra Wadiyar should not be believed because PW2/Ravindra Wadiyar just had a fleeting glance of the applicant at the spot, which could not have been enough to enable PW2/Ravindra Wadiyar to identify the applicant. This contention would have been of some use had there been no other witness to show that the applicant was driving the bus at the relevant time or the applicant had taken defence that he was not the driver of the bus. Such is not the case. It is significant that PW2/Ravindra Wadiyar was cross-examined at length. There is no suggestion in the cross-examination that victim was not crossing the road at the zebra crossing when she was given a dash by the applicant's vehicle. The suggestion that when victim was crossing the road, a red colour maruti vehicle came and that the victim almost dashed against that vehicle was denied by the witness. There is no suggestion in the cross-examination that victim was not crossing the road at the zebra crossing when she was given a dash by the applicant's vehicle. The suggestion that when victim was crossing the road, a red colour maruti vehicle came and that the victim almost dashed against that vehicle was denied by the witness. PW3/Yeshwant Kanadkar was conductor of the bus driven by applicant and states that the bus did hit the victim. DW1/Tulshidas Chodankar also states that the bus hit the victim. Though the two witnesses seek to state that victim was at fault, the fact remains that victim was dashed by vehicle driven by applicant and evidence of PW2/Ravindra shows that the victim was given a dash by bus driven by applicant by going to the wrong side. 6. PW7/Arvind J. Menezes was possibly driving a four wheeler which was in front of the bus driven by the applicant and was proceeding in the same direction. He claimed to have seen the entire incident in the rear view mirror of his car. The learned Counsel for the applicant wondered as to whether PW7/Arvind J. Menezes would have really noticed the victim actually being on a zebra crossing 100 metres behind the car in a mirror image, which he was viewing in a rear mirror. There is nothing impossible about a driver being able to note a zebra crossing in a rear view mirror even on a slope 100 metres away from the car, since the car was going down hill and not uphill. Therefore, the evidence of these two witnesses i.e. PW2 and PW7 would clearly show that the victim was given a dash by the bus driven by the applicant when the victim was on a zebra crossing. 7. The learned Counsel for the applicant submitted that it is doubtful whether the applicant's bus had in fact gone on the wrong side. First, the panchanama itself shows that the bus was on the wrong side. Though there is no divider on the road and there are only dividing strips it is clear from the sketch and panchanama that applicant's bus was on the wrong side. First, the panchanama itself shows that the bus was on the wrong side. Though there is no divider on the road and there are only dividing strips it is clear from the sketch and panchanama that applicant's bus was on the wrong side. It is also significant that DW1/Tulshidas Chodankar, who was examined on behalf of the applicant stated that he did not see on which side of the white divider line the accident took place as he did not go to the spot. He stated that the accident took place a little away from the zebra crossing. The fact that the zebra crossing was also there is thus not denied by this witness and it could be said that the witness was simply trying to shift the victim from the actual spot in order to help his friend. DW1/Tulshidas Chodankar had not bothered to go to the accident spot because he stated that he could not bear to see the blood. Therefore, his evidence about the actual location of the point of impact would not be useful. 8. First, there is no reason why PW2 and PW7 who have absolutely no relation with the victim, should be disbelieved. Secondly, there is nothing improbable or unbelievable in their testimonies. Thirdly, their testimonies pointed to the fact that the victim was trying to cross the road on the zebra crossing. Fourthly, the bus which was driven by the applicant was actually found on the wrong side of the divider line. This, was rightly found by the Courts below to be sufficient to hold the applicant guilty of offences punishable under Section 279 and 304-A of the Penal Code. 9. The learned Counsel for the applicant sought to place reliance on judgment of the Supreme Court in the case of MahadeoHari Lokre V/s. State of Maharashtra reported in 1972 ACJ 185, where the Court had considered the case of a person who suddenly crossed the road unmindful of an approaching bus. This accident had taken place on C.P. Tank Road in Giragaum, Mumbai. In the context of the situation and the defence which was tendered, the Court had come to a factual conclusion that the victim was suddenly crossing the road unmindful for a bus which was approaching. On questions of fact, there cannot be any precedent and, therefore, this judgment would not help the applicant. In the context of the situation and the defence which was tendered, the Court had come to a factual conclusion that the victim was suddenly crossing the road unmindful for a bus which was approaching. On questions of fact, there cannot be any precedent and, therefore, this judgment would not help the applicant. Considering the evidence tendered, it is clear that the victim who was on the zebra crossing had been given a dash by the bus driven by the applicant by going to the wrong side. Since the victim died as a result of the injury sustained by her the applicant was rightly convicted by the Courts below. 10. The learned Counsel for the applicant submitted that the applicant has no other criminal history and that the sentence of imprisonment of 6 months is harsh and, therefore, it ought to be reduced. The learned Additional Public Prosecutor on the other side submitted that such offence needs to be dealt with sternly and, therefore, drew my attention to the judgment of the Supreme Court in the case of State of Punjab V/s.Balwinder Singh and Ors. reported at (2012) 2 SCC 182 . Though short term sentences do not help, since the learned trial Magistrate as well as the Additional Sessions Judge have imposed short term sentences on the two counts which are quite lenient, there is no need to interfere in those sentences and show any further leniency. 11. Consequently, the revision application is rejected. If the applicant does not surrender to his bail within a period of 6 weeks, the learned Magistrate shall cause the applicant to be arrested and committed to prison to serve the sentence.