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2014 DIGILAW 535 (BOM)

State of Goa v. Prakash Gonnagar

2014-02-26

MRIDULA R.BHATKAR

body2014
JUDGMENT :- This Criminal Appeal is preferred against the Judgment and order dated 15/6/2010 passed by the learned Judicial Magistrate First Class, Ponda, thereby acquitting the respondent/accused from the offences punishable under sections 279, 337, 338 of the Indian Penal Code and section 134 (a) and (b) of the Motor Vehicles Act. 2. The accident has taken place on 29/3/2008 at 2.40 hours when the accused drove canter truck bearing no.Ka-25-2057 in a rash and negligent manner and dashed a motorcycle causing grievous injury to the motorcyclist and simple injury to ta pillion rider. The accident has taken place near bypass of Panaji-Ponda road near Magueshi temple junction. A criminal case was registered against the accused. He pleaded not guilty before the learned Magistrate and the trial proceeded. Prosecution in all examined 9 witnesses to prove its case. The learned JMFC formulated the point for determination in respect of driving in rash and negligent manner thereby endangering human lives and also caused grievous and simple injury. However, all these points were hereby negated by the learned Judge. The learned Judge in fact in paragraph 20 of its judgment has stated that he did not find it necessary to go into the aspect of the manner in which the accident occurred as the prosecution has failed to prove the identity of the accused which is the essential ingredient of section 279 of I.P.C. The learned Judge thus did not decide the point of rashness and negligent driving of the respondent/accused but held that the fact that the accused was the one who was the driving the vehicle at the relevant time is not proved by the prosecution and hence he acquitted the accused from all the charges. Hence this appeal is filed by the State. 3. Learned Public Prosecutor for the State has submitted that the prosecution has tendered evidence on the point of fixing identity of the accused as the driver of the vehicle at the relevant time. Learned counsel read over the evidence of PW.7, Mr. Pankaj Kumar, who was looking after the business of his brother and who was the owner of the said canter truck. He has deposed that at the relevant time the respondent/accused was driving the vehicle. Learned counsel read over the evidence of PW.7, Mr. Pankaj Kumar, who was looking after the business of his brother and who was the owner of the said canter truck. He has deposed that at the relevant time the respondent/accused was driving the vehicle. Learned Public Prosecutor submitted that his evidence if it is read along with the answers given by the accused while answering the questions put to him under section 313 of the Cr.P.C. then, the fact of identity of the accused as a driver at the relevant time cannot be negated. He submits that the finding given by the Judge on the point of either proving identity of the accused as the driver of the truck is to be set aside and the case may be remanded for determining the other relevant issues. 4. Learned counsel for the respondent/accused has opposed the submissions of learned counsel for the appellant especially on the point that the identity of the accused was proved by the prosecution. Learned counsel submitted that PW.7, Mr. Kumar was not physically present at the relevant time and he has not stated specifically that at the time of the accident the respondent/accused was driving the vehicle. However, he conceded that if the matter is remanded then, all the issues are to be kept open for both the parties. 5. The evidence of Mr. Kumar, PW.7 reveals that the accused was a driver on the impugned canter truck. PW.7 has identified the accused as the driver of the vehicle of the impugned vehicle at the relevant time. Mr. Kumar has stated that he was looking after the business, thus he has employed the driver and therefore his evidence is to be believed. The trial court has committed an error in discarding the evidence of Mr. Kumar, PW.7 on the point of establishing the identity of the accused as the driver of the vehicle at the relevant time. More ever, as pointed out by the learned P.P., the answers given by the accused during his statement under section 313 also supports the proof of the fact of identify of the accused. Kumar, PW.7 on the point of establishing the identity of the accused as the driver of the vehicle at the relevant time. More ever, as pointed out by the learned P.P., the answers given by the accused during his statement under section 313 also supports the proof of the fact of identify of the accused. The statement given by the accused under section 313 of the Code is not an evidence itself but these answers can be looked into to find out what the accused wanted to say in respect of the evidence tendered against him in the Court and therefore the accused is always made aware before beginning of recording of statement under section 313 of Cr.P.C that the answers given by him are likely to be used against him. In the present case the accused did not deny that he was driving the vehicle at the relevant time but he has answered that when the impact took place he gave signal and took a right turn. It cannot be said that sweeping statement made by him while answering the questions, but he reiterated the same answering to 2-3 questions. It was not compulsory for him to answer any question or say about statement in respect of the evidence of the prosecution. He however, voluntarily made these statements which supports the fact which is already proved by Pankaj Kumar, P.W.7 about the identity of the accused as the driver of the vehicle. Thus, the finding given by the learned trial Court is incorrect and bad in law. Hence to be set aside. 6. However, it is clarified that the accused is prosecuted for the charges punishable under sections 279, 337, 338 of the I.P.C including section 134 (a) and (b) of the M.V. Act for which it is necessary for the prosecution to prove the rash and negligent driving of the accused which has caused the grievous and simple injury to the victims. To prove this particular fact it is necessary for the trial court to discuss the evidence on the point of negligence and rashness of the accused. In the present case, the trial court did not determine this issue of rash and negligent driving of the accused. Hence, it is a fit case to remand the matter with directions to the learned Judge as follows: (a) The learned Judge shall decide the matter afresh. In the present case, the trial court did not determine this issue of rash and negligent driving of the accused. Hence, it is a fit case to remand the matter with directions to the learned Judge as follows: (a) The learned Judge shall decide the matter afresh. Additional statement under section 313 of Cr.P.C. (b) Both the parties to be given opportunity to make submissions. (c) The case is to be decided on merits except the issue of identify of the accused which is already decided by this Court. (d) The trial Court to expedite the case by six months. Ordered accordingly.