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2014 DIGILAW 2251 (BOM)

State of Goa, Through P. I. v. Anant Manerkar

2014-11-10

U.V.BAKRE

body2014
Judgment 1. Heard Mr. Amonkar, learned Additional Public Prosecutor for the appellant and Ms. Gawas, learned Counsel for the respondent. 2. This is State appeal filed against the judgment dated 13/07/2012 passed by the learned Judicial Magistrate, First Class, Sanguem – Goa (J.M.F.C., for short) in Case No. 18/S/2008 by which the respondent has been acquitted of the offences punishable under Sections 279 and 304-A of Indian Penal Code ( I.P.C., for short). The respondent shall hereinafter be referred to as the accused. 3. The Curchorem Police had filed charge sheet against the accused alleging that on 23/09/2007 at about 14.45 hours at Guddemol, Sanvordem, the accused being the cleaner of the tipper truck bearing No. GA-09-T-8055, without possessing authorized heavy motor driving licence and without permission/knowledge of the driver, drove the said tipper truck in a rash and negligent manner, waiving his hand at the passerby on the narrow village road and dashed against a pedestrian namely Subhash Palni, as a result of which the said pedestrian sustained injuries which resulted into his death. 4. The accused was tried for the offences punishable under Sections 279 and 304-A of I.P.C. and Section 3 read with 181 of the Motor Vehicle Act (M.V. Act, for short). The prosecution examined 10 witnesses in support of its case. The statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The accused did not examine any witness. 5. Upon consideration of the entire evidence on record, by impugned Judgment dated 13/07/2012, the learned J.M.F.C. acquitted the accused of the offences punishable under Sections 279 and 304-A of I.P.C. and convicted him for the offence punishable under Section 3 read with Section 181 of M.V. Act and by further judgment dated 24/07/2012 sentenced him to undergo simple imprisonment of three months and to pay fine of Rs. 500/-and in default to undergo further simple imprisonment of seven days. The accused had challenged the above judgment and sentence before the Sessions Court, Margao and vide Judgment and order dated 06/11/2012, passed in Criminal Appeal No. 70/2012, the learned Additional Sessions Judge dismissed the said appeal. The State has filed the present appeal against his acquittal for the offence punishable under Sections 279 and 304-A of I.P.C.. 6. Mr. The accused had challenged the above judgment and sentence before the Sessions Court, Margao and vide Judgment and order dated 06/11/2012, passed in Criminal Appeal No. 70/2012, the learned Additional Sessions Judge dismissed the said appeal. The State has filed the present appeal against his acquittal for the offence punishable under Sections 279 and 304-A of I.P.C.. 6. Mr. Amonkar, learned Additional Public Prosecutor submitted that the evidence of the eye witness namely PW4 Shri Murli Nair has not been considered properly by the learned J.M.F.C. According to him, the said evidence is reliable and sufficiently proves the rashness and negligence of the accused and, therefore, the accused ought to have been convicted of the offences punishable under Sections 279 and 304-A of I.P.C. He therefore urged that the appeal be allowed and the accused be convicted and sentenced appropriately. 7. On the other hand, Ms. Gawas, learned Counsel appearing for the accused submitted that there were also other eye witnesses examined by the prosecution who were along with PW-4 but they have not supported the prosecution. She urged that the evidence of PW-4 is not corroborated by said other eye witnesses. She further pointed out that there is material contradiction in the deposition of PW4 viz-a-viz his police statement. She, therefore, submitted that no interference is called for in the impugned judgment of acquittal. 8. I have gone through the original record and proceedings and considered the arguments advanced by learned Counsel for the parties. 9. Indisputably, Shri Subhash Palni died on 23/09/2004, due to damage for face and its underlying structures, head and brain, left side rib cage bones, left side hip with its underlying structures and left thigh, as a result of blunt force crushing impact. He died on the spot in an accident which took place at Guddemol, Sanvordem, involving the Tipper Truck bearing registration No. GA-09/T-8055, driven by the accused. 10. The point for determination is whether the death of Subhash Palni was the direct result of the rash and negligent act of the accused in driving the said Tipper Truck. 11. It is noticed from the evidence of PW4, Murli Nair that he along with PW5 Amardeep Sawardekar, PW6, Alisab Mulla, and PW7 Anita Sawardekar were all together standing infront of the house of PW3 when the alleged accident had taken place. 11. It is noticed from the evidence of PW4, Murli Nair that he along with PW5 Amardeep Sawardekar, PW6, Alisab Mulla, and PW7 Anita Sawardekar were all together standing infront of the house of PW3 when the alleged accident had taken place. It is pertinent to note that in their testimonies, PW6, Alisab Mulla, and PW-7, Anita Sawardekar clearly stated that they had not seen the actual accident. Even PW5 Amardeep Sawardekar had not seen the actual accident, since according to him after hearing a loud sound, he came on the road and saw Subhash Palni with serious injuries close to the Tipper Truck. Therefore, the question arises as to how PW4 who speaks about the occurrence of the accident as if he had actually seen the same, can be wholly relied upon. 12. PW4 deposed that on 23/09/2007 at around 2.45 p.m., he was in front of his house at Guddemol. He further deposed that one Amardeep Sawardekar, Alisab Mulla and wife of Amardeep Sawardekar were also present at the said place. He deposed that at that time the tipper truck bearing registration no. GA-09-T-8055 came from the bus stop and was proceeding towards the village and at the same time Subhash Palni was also proceeding towards his residence by the side of the road by walking and at that time the said truck gave dash to him due to which Subhash fell down and the truck went over him. He further deposed that the said truck stopped a little ahead at a distance of above 12-15 metres from the spot. According to him, the said Subhash Palni expired at the spot and he knew the driver. PW4 does not say that the Truck was driven rashly or negligently or was at a fast speed or that it came on the wrong side, etc.. What is pertinent to note is that PW4 has been confronted with his police statement where there is omission regarding the truck giving dash to Subhash Palni and Subhash Palni falling down and the tyre of the truck going over him. In any case, from the deposition of PW4 it is appears that other witnesses namely PW5 Amardeep Sawardekar, PW6 Alisab Mulla, PW7 Anita Sawardekar were also eye witnesses they being all along with PW4. However, all the said witnesses have not corroborated the testimony of PW4. In any case, from the deposition of PW4 it is appears that other witnesses namely PW5 Amardeep Sawardekar, PW6 Alisab Mulla, PW7 Anita Sawardekar were also eye witnesses they being all along with PW4. However, all the said witnesses have not corroborated the testimony of PW4. On the contrary, according to them they have not seen actual occurrence of the accident. Even, PW8, Mrs. Sapna Naik Dessai did not see the actual accident. In such circumstances, the testimony of PW4 cannot be termed as wholly reliable. There is no other evidence which can establish the guilt of the accused for the offence punishable under Sections 279 and 304-A of I.P.C. beyond reasonable doubt. The point for determination therefore gets answered in the negative. 13. In view of the above, Judgment of acquittal of the accused for the offences punishable under Sections 279 and 304-A of I.P.C., passed by the learned J.M.F.C., cannot be termed as erroneous. Certainly the same is not perverse or arbitrary. No interference is called for with the impugned judgment of acquittal. 14. In the result, the appeal is dismissed.