JUDGMENT : This appeal is directed against judgment of the learned JMFC, 'C' court, Vasco da Gama acquitting the respondent for offences punishable under Section 279, 337 and 304-A of the Penal Code, while the learned JMFC convicted the respondent for offence punishable under Section 134 (a) and (b) of the Motor Vehicles Act. 2. Facts which led to filing of this appeal are as under: On 3/12/2008, PW6/Shri Eurico Santana D'Silva was travelling in his official car along with his wife from Panaji to Margao. The car was being driven by PW3/Vasu Gawas. When the car had reached a place near Toyoto showroom on the road, tanker no.GA-01-T-7272 driven by the respondent came from the opposite side and dashed against this car no.GA-03-G-8008. The victim i.e. the wife of PW6/Eurico D'Silva, was trapped in the car. Police were informed and with the help of fire brigade, she was rescued. Wife of PW6/Shri Eurico D'Silva however, had suffered serious injuries and succumbed to those injuries. PW6/Shri Eurico D'Silva as well as PW3/Vasu Gawas also sustained several injuries. Son of PW6/Shri Eurico D'Silva by name Carlos Silva was also informed and on his report an offence was registered. Police had already reached the spot and they had caused the panchanama to be drawn up. Photographs of the vehicles were also taken. Since Smt. Angela D'Silva had expired, after performing inquest on her body, her body was sent for post mortem examination. Police recorded statement of witnesses, obtained necessary medical certificate and on completion of investigation, sent the charge sheet to the Court of learned JMFC, Vasco da Gama. 3. Substance of accusation was explained to the respondent and since respondent pleaded not guilty he was put on trial, on which the prosecution examined in all 13 witnesses in its attempt to bring home the guilt of the respondent. The respondent took the defence that accident occurred because the car driver himself was overtaking a multi axel vehicle and in the process hit the tanker. He also examined the owner of the tanker Mariano Rodrigues as his defence witness. After considering the prosecution evidence in the light of defence raised, the learned Magistrate acquitted the respondent of substantive offence punishable under Section 279, 337 and 304-A of the Penal Code. Aggrieved thereby, the State has preferred this appeal. 4. He also examined the owner of the tanker Mariano Rodrigues as his defence witness. After considering the prosecution evidence in the light of defence raised, the learned Magistrate acquitted the respondent of substantive offence punishable under Section 279, 337 and 304-A of the Penal Code. Aggrieved thereby, the State has preferred this appeal. 4. I have heard the learned Additional Public Prosecutor for the State and the learned Counsel for the respondent, both of whom have painstakingly taken me through the entire evidence on record and sought to unfold all aspects of the matter. PW1/Joaquim Fernandes and PW2/Sharon Gaude are panchas at panchanma of spot at exhibit 10 which was drawn up by PW10/Head Constable Shri Dinkar Thakur. Both PWs 1 and 2 turned hostile. The panchama at exhibit 10 along with the sketch was therefore proved by the evidence of PW10/Head Constable Dinkar Thakur. The only aspect in the panchanama and sketch about which the accused has a grievance is identification of point of impact. The point of impact identified in the sketch is towards the eastern edge of the road i.e. towards left hand side as one proceeds from Panaji to Margao, or on right hand side, if one proceeds from Margao to Panaji. According to the learned Counsel for the respondent, this point of impact is imaginary and the accident in fact occurred on the other side. He submitted that the attempt of the prosecution to get the panchanama signed by PW1 and PW2, who could not at all have been present for drawing such panchanama itself should result in rejecting the panchanama and the sketch, as has been done by the learned Magistrate. 5. There can be no doubt that the officer drawing the panchanama, ought to have called witnesses who would naturally be present at the spot and may have deferred drawing panchanama till the next morning. All the same, as rightly submitted by the learned Additional Public Prosecutor, merely because the panchas have turned hostile, the evidence of the Investigating Officer need not be discarded. Relying on judgment of the Supreme Court in Rameshbhai Mohanbhai Koli & Ors. V/s. State of Gujarat reported at 2011 (11) SCC 111 , she submitted that evidence of Investigating Officer should not have been lightly discarded by the learned trial Magistrate. Relying on judgment of the Supreme Court in Rameshbhai Mohanbhai Koli & Ors. V/s. State of Gujarat reported at 2011 (11) SCC 111 , she submitted that evidence of Investigating Officer should not have been lightly discarded by the learned trial Magistrate. She submitted that as the evidence of other witnesses would show location of the point of impact in the panchanama as well as the point in sketch is accurate. The only thing that can be accepted without doubt from these two documents is that the Honda City car was found near the eastern edge of the road whereas the tanker itself was found half the western edge of the road facing a drainage with the back side of the tanker towards the road, some distance towards Panaji side. Thus, when the panchanama was drawn up both the vehicles were on their correct side. 6. PW3/Vasu Gawas was driving the car which met with the accident. He stated that at the time of accident he was proceeding uphill. A tanker came from the opposite side and dashed against the car. He claimed that his car was on the left side of the road and was being driven at the speed of 40 kilometres per hour. In cross-examination, he admitted having stated to the police that he had overtaken a trailer truck while driving uphill. The trailer had possibly three axels i.e. 10 tyres. He denied that he dashed against the oncoming tanker by overtaking the trailer. He stated that impact of the tanker was on driver side of the car. He denied that the tanker was on its left hand side of the road and the impact was on its right hand side of the road as one proceeds towards Margao. 7. PW6/Shri Eurico D'Silva was travelling in the car. He stated that he was relaxing in the car which was proceeding towards Margao. He stated that car waited for an opportunity to overtake the multi axel trailer and after the car crossed the chapel, the driver overtook the trailer. He then noticed a vehicle coming from the opposite side in a high speed and it gave a dash to the car. In cross-examination, he denied that he was sleeping. He stated that the car had overtaken the trailer and the accident took place about 1 kilo metre after such overtaking. He then noticed a vehicle coming from the opposite side in a high speed and it gave a dash to the car. In cross-examination, he denied that he was sleeping. He stated that the car had overtaken the trailer and the accident took place about 1 kilo metre after such overtaking. The learned trial Magistrate seems to have concluded that because the witnesses speak of overtaking of a trailer the car must have been on the wrong side and that may be the cause of the accident. The learned Counsel for the respondent too toed the line taken by the learned Magistrate and submitted that the conclusions drawn by the learned Magistrate were correct in view of the evidence of PW3 and PW6. 8. As rightly pointed out by the learned Additional Public Prosecutor PW3 and PW6 did not state that the accident occurred when the car was in the process of overtaking the trailer. The trailer had already been overtaken. Therefore, there was no question of the car being on the wrong side of the road. She also submitted by reference to photographs at exhibit 37 that the impact on the car was on the right hand side. The right hand side of the car and not just front right edge, has been smashed. The impact was thus not head on. Therefore, she submitted that had the car been on the wrong side and the tanker come from the opposite direction, the impact could not have been on the right hand side of the car, since for such an impact to occur the tanker would have been required to actually go off the road on tanker's left hand side or car's right hand side. Therefore, according to her there is no improbability in the evidence of PW3 and PW6, who had candidly admitted that car had overtaken the trailer overtaking of the trailer had been long past. The learned Magistrate seems to have disbelieved PW6 because PW6 merely stated that a tanker gave a dash to the car. Now, when the tanker gave a dash to the car and the witness states that car was on the correct side of the road, the inference would be the mishap occurred due to the reckless driving of the respondent. 9. PW4/Adeep Natarajan was a cleaner in the tanker driven by the respondent. Now, when the tanker gave a dash to the car and the witness states that car was on the correct side of the road, the inference would be the mishap occurred due to the reckless driving of the respondent. 9. PW4/Adeep Natarajan was a cleaner in the tanker driven by the respondent. First, the respondent had not disputed that he was driving the tanker at the relevant time and that there was a collision between the tanker and the car. He however, disputes the presence of PW4/Adeep Natarajan in the cabin of the tanker. PW4/Adeep Natarajan claimed that he was travelling along with the respondent in the tanker which had overtaken another tanker bearing no.6289 and thereafter the tanker driven by the respondent collided with the car. He also claimed to have received injuries in the accident. He stated that the respondent ran away from the spot. He claimed that tanker no.6289 came to halt after the accident and that he went to the driver of the tanker no.6289, who then informed their master of the incident and their master then came and took him for medical treatment. 10. This master was examined as DW1 and does not corroborate the words of PW4/Adeep Natarajan. On the other hand, he states that respondent and PW4 were on inimical terms and used to have frequent quarrels. It was suggested to PW4 that he was on inimical terms with accused who denied the suggestion. No reasons for such enmity were however, given. As rightly submitted by the learned Additional Public Prosecutor, it could be easy to make such a suggestion of enmity in order to allege that a witness is not telling the truth. The learned Counsel for the respondent submitted that from the evidence of DW1 it is clear that there was no cleaner on the tanker employed by DW1. All the same, the fact remains that even DW1 states that PW4 as well as the respondent were residing in the same neighbourhood and, therefore, it would not be improbable for PW4 to travel with the respondent on way back home. Therefore, presence of PW4 in the tanker at the relevant time is not at all unnatural. The learned Additional Public Prosecutor also points out that while respondent had denied that PW4 was the cleaner, there is nothing to show that the respondent also denied presence of PW4. Therefore, presence of PW4 in the tanker at the relevant time is not at all unnatural. The learned Additional Public Prosecutor also points out that while respondent had denied that PW4 was the cleaner, there is nothing to show that the respondent also denied presence of PW4. She also submitted that there is no suggestion put to the Investigating Officer that PW4 is a planted witness. 11. The learned Magistrate seems to have observed that because PW4 answered that he had not seen the speedometer and, therefore, could not say whether the tanker was moving in the speed of 40 to 50 kilometres per hour, the evidence of PW4 was unreliable. She also seems to have observed that PW4 deposed that he had not seen whether the car was overtaking the trailer and therefore PW4 was not reliable. Now, if the car had already overtaken a trailer a kilometer away from the spot of accident and when the tanker was coming from the opposite side, there should obviously be no chance of an occupant in the cabin of tanker to see the car overtaking the tanker. The learned Magistrate seems to have ignored the fact that vehicles were coming from opposite directions and, therefore, would be far away from each other when the car overtook the trailer. Therefore, there was nothing unnatural in PW4 not noticing the event of overtaking. The learned Magistrate seems to have discarded the evidence of PW4 also on the ground that his evidence was not in consonance with the sketch at exhibit 10. I could not follow as to how evidence of PW4 about the situation of the tanker after the accident contradicts the sketch at exhibit 10. The tanker was indeed on the left hand side of the road as one proceeds from Margao to Panaji i.e. on the western side. The learned Counsel submitted that the tanker was in fact found on the left hand side, off the road and not on the road. For bringing out the contradictions, it would be necessary for the learned Counsel to specifically bring on record from the evidence of PW4 that tanker was very much on tar road and then it could have been said that his evidence contradicts the sketch at exhibit 10. For bringing out the contradictions, it would be necessary for the learned Counsel to specifically bring on record from the evidence of PW4 that tanker was very much on tar road and then it could have been said that his evidence contradicts the sketch at exhibit 10. His statement that the vehicle was on the left hand side of the road could also mean that it was beyond left side edge of the road. 12. The learned Counsel for the respondent submitted first that the driver of tanker no.6289 has not been examined. Secondly, he submits that according to the evidence of DW1 it was the respondent, who rang up DW1 and then DW1 handed the respondent to the police. Therefore, according to the learned Counsel, the learned trial Magistrate has rightly come to reject the evidence of PW4. Mere suggestion of enmity without putting forth as to what was the cause of enmity would not be sufficient to discard the evidence of PW4. Evidence of PW4 corroborates that of PW3 and PW6 as to the manner in which the accident occurred. Apart from this, the photographs at exhibit 37 would also clearly show that the evidence of PW3, 4 and 6 as to the manner in which accident took place is correct. 13. The learned Counsel for the respondent submitted that the learned trial Magistrate had rightly observed that for proving that the vehicle was driven in a rash and negligent manner several factors like speed, control of vehicle, driving the vehicle in a clumsy way, driving by taking dangerous turns without bearing about the faith of person of using the road was required to be proved. There can be no doubt about the principles which the learned Magistrate had enumerated in the judgment. The question however is, whether the learned Magistrate was justified in rejecting the evidence of PW3, 4 and 6. 14. The learned Magistrate disbelieved the evidence of PW3/Vasu Gawas, the driver of the car, observing that the sketch at exhibit 10 shows the distance between the spot of the accident and the edge of road to be 1 meter and since the car would at least be two metres wide the tanker could not have come on the extreme right to hit the car as is claimed by PW3. Now, “extreme right” does not necessarily mean to the right side edge of the road. Now, “extreme right” does not necessarily mean to the right side edge of the road. In any case, a bare look at the photographs of the car would show that since the car had been smashed on the right hand side and and not on the front, there is nothing improbable in the evidence of PW4. It is unfortunate that the learned Magistrate seems to have imagined things and then come to thoroughly untenable conclusions about the manner in which the accident could have occurred. She ought to have seen that had accident occurred when the car was in the process of overtaking the tanker trailer, the front side of the car would have received the impact. Also, in such a situation, since the trailer would be at the side of the car the left hand side of the car would receive impact but trailer was nowhere in picture. The learned Magistrate had noted the fact that right hand side of the car was smashed and not the front right corner of the car. It should have been clear that the tanker gave a dash by coming to the wrong side. 15. The learned Counsel for the respondent submitted that in that case there is no explanation as to how the tanker was found parked off the road on the left hand side. This is not at all impossible since a driver, who is about to collide with a vehicle would by a reflex action try to move the vehicle in the opposite direction. The vehicle would turn and could land beyond its left hand side of the road. If one has a look at the cabin of the tanker, it would be seen that the front wheel of the tanker is below the driver’s cabin i.e. some distance away from front edge of the tanker. So, by the time the front wheels turn after turning the steering, the front of the tanker would already have hit the car. The learned Magistrate should have seen the situation of the tanker, the steering wheel, the front portion and the front wheel which are located little behind the driver's cabin. Therefore, there is nothing improbable about the tanker being found on the western side of the road after the mishap. 16. The other witnesses examined are PW7/Dr. The learned Magistrate should have seen the situation of the tanker, the steering wheel, the front portion and the front wheel which are located little behind the driver's cabin. Therefore, there is nothing improbable about the tanker being found on the western side of the road after the mishap. 16. The other witnesses examined are PW7/Dr. Mandar Kantak, who conducted post mortem examination on the victim's body and proved notes of post mortem examination at exhibit 33; PW8/PC Santosh Naik and PW9/ASI Kamlakar Bhandari who reached the spot immediately after the mishap; PW10/HC Dinkar Thakur, as has already been submitted, drew up the panchanama and sketch; PW12/PI Nolasco Ropaso and PW13/PI Shivram Vaigankar, police officers who recorded report of PW11/Shri Carlos D'Silva, conducted investigation and filed charge sheet. 17. The learned Counsel for the respondent submits that the reasons given for non-examination of the driver of a tanker no.6289 by PW12/PSI Nolasco Raposo are not correct as PW13/PI Shivram Vaigankar does not say anything about witness not being found. This is a small discrepancy which cannot affect the veracity of evidence of PW3, 4 and 6 about the manner in which the accident occurred. 18. Relying on the judgment of Supreme Court in Brahm Swaroop & Anr. V/s. State of Uttar Pradesh reported at 2011 (6) SCC 288 , the learned Additional Public Prosecutor submitted that the evidence of injured eyewitnesses should have been accepted by the learned Magistrate. As the foregoing discussion would show the evidence tendered by the prosecution witnesses was liable to be and should have been accepted by the learned Magistrate. 19. The learned Counsel for the respondent, on the other hand, submitted that the learned trial Magistrate had rightly come to the conclusion that guilt of the respondent is not proved and that this Court sitting in appeal against the judgment of acquittal should not set aside that judgment merely because another view of the matter is possible. For this purpose, he relied on the judgment of Supreme Court in Joginder Singh and Anr. V/s. State of Haryana reported at 2010 (15) SCC 407. There can be no doubt about the principle that the appellate Court should not be setting aside judgment of acquittal merely because another view is possible. A judgment of acquittal can be set aside only if the findings recorded by the trial Magistrate or trial Court are totally untenable or perverse. There can be no doubt about the principle that the appellate Court should not be setting aside judgment of acquittal merely because another view is possible. A judgment of acquittal can be set aside only if the findings recorded by the trial Magistrate or trial Court are totally untenable or perverse. 20. In this case, the learned trial Magistrate seems to have totally ignored the natural possibilities and the manner in which the accident could have taken place while rejecting the evidence of three eyewitnesses. The learned Counsel for the respondent submitted that the principle res ipsa loquitur could not have been used and is rightly not used by the learned trial Magistrate and for this purpose drew my attention to Supreme Court judgment reported in Syad Akbar V/s. State of Karnataka reported in 1980 (1) SCC 30 . After considering all the aspect of the matter and several earlier judgments the Supreme Court had come to draw the following conclusions in para 30 to 32 of the judgment which read as under: “30. Such simplified and pragmatic application of the notion of res ipsa loquitur, as a part of the general mode of inferring a fact in issue from another circumstantial fact, is subject to all the principles, the satisfaction of which is essential before an accused can be convicted on the basis of circumstantial evidence alone. Those are: Firstly, all the circumstances, including the objective circumstances constituting the accident, from which the inference of guilt is to be drawn, must be firmly established. Secondly, those circumstances must be of a determinative tendency pointing unerringly towards the guilt of the accused. Thirdly, the circumstances should make a chain so complete that they cannot reasonably raise any other hypothesis save that of the accused's guilt. That is to say, they should be incompatible with his innocence, and inferentially exclude all reasonable doubt about his guilt. 31. Let us now see whether the appellant, in the instant case, could with the aid of res ipsa, as explained and described in the preceding paragraph, be held guilty of causing death by negligent or rash driving. That is to say, they should be incompatible with his innocence, and inferentially exclude all reasonable doubt about his guilt. 31. Let us now see whether the appellant, in the instant case, could with the aid of res ipsa, as explained and described in the preceding paragraph, be held guilty of causing death by negligent or rash driving. The primary reason given by the courts below for invoking the maxim is that the appellant had swerved the bus to the extreme right side of the road, where the unfortunate child, who came running from the left side of the road, struck against the bus and was fatally knocked down by its left front wheel. 32. In our opinion, this circumstance of taking the vehicle suddenly to the extreme right of the road, did not bespeak negligence or dereliction of duty to exercise due care and control, on the part of the accused in clear and unambiguous voice. Nor could it be said, that the cause of swerving the vehicle to the right, was unknown. The accused gave a reasonably convincing explanation of his conduct in doing so, and his version was fully supported by four prosecution witnesses who had seen the occurrence. In these circumstances, the maxim res ipsa loquitur could have no manner of application.” There can be no doubt that the principle “res ipsa loquitur” would have not been conclusive in appreciation of evidence in a criminal trial. The evidence would have to be evaluated on the basis of natural manner in which an incident could take place, laws of motion and the situation actually noticed. The situation shows that the impact is on the right hand side of the car which would rule out any head on collision and would clearly show that it must be the tanker which hit the car. 21. The learned Counsel for the respondent also drew my attention to judgment of Supreme Court in Renu Kunta Mallaiah V/s. State of Andhra Pradesh reported at 2008 (10) SCC 220 to support his contention that the evidence tendered was not sufficient to conclude that the vehicle was being driven in a rash and negligent manner. In that case, the identity of the offending vehicle itself was not established since the Investigating Officer admitted that he got to know the details of the bus after about four days of the occurrence. In that case, the identity of the offending vehicle itself was not established since the Investigating Officer admitted that he got to know the details of the bus after about four days of the occurrence. The eyewitness i.e. PW4, 5 and 11 in that case did not support the prosecution case. Therefore, the observation in that judgment would not be applicable to the case at hand. 22. To conclude, the learned Magistrate had come to an entirely erroneous and untenable conclusion that the evidence of PW3, 4 and 6 was not reliable and that the prosecution had not proved that the tanker was driven by the respondent in a rash and negligent manner. The tanker gave a dash on the right hand side of the car driven by PW3 in which PW6 and his wife were travelling. The manner in which the incident occurred clearly shows rashness and negligence on the part of the respondent. In view of this, the respondent would have to be held guilty of offences punishable under Section 279, 304-A and 337 of the Penal Code. The learned Additional Public Prosecution submitted that the respondent should be held guilty of offence punishable under Section 338 of the Penal Code, since PW6 had suffered a grievous injury. Since that was not the charge it would not be appropriate to hold the respondent guilty of offence punishable under Section 338. 23. Considering the manner in which the accident occurred, though the learned Counsel for the respondent submitted that in the absence of any previous criminal history and the young age of the respondent, he may be let off on probation, such a course may not be open. Considering the fact that a life has been lost in the accident, in my view, following sentence should meet the ends of justice: The appeal is allowed. The judgment acquitting the respondent punishable under Sections 279, 337 and 304-A is set aside. Instead, the respondent is convicted of offences punishable under Sections 279, 337 and 304-A of Penal Code and is sentenced to undergo RI for 3 months on the first count, one year on the second count and 3 months on the third count with fine of Rs.500/-, Rs.5,000/- and Rs.500/-respectively on the third count or in default to suffer further imprisonment for a period of 15 days, 3 months and 3 months respectively on the third counts. Substantive sentences shall run concurrently. Respondent shall be entitled to have period of detention in custody, if any, set off against the substantive sentence. If the fine is recovered the entire amount shall be paid to the victim's family towards compensation. 24. The learned Counsel for the respondent seeks 6 weeks time to take the matter further. If the respondent does not surrender within a period of 6 weeks, the learned Magistrate shall have the respondent arrested and committed to prison to serve the sentence.