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2014 DIGILAW 616 (BOM)

Shailesh Volvoikar v. State Represented by the PP

2014-03-06

U.V.BAKRE

body2014
JUDGMENT 1. Heard Mr. Bras De Sa, learned Counsel appearing on behalf of the petitioner and Mr. Rivankar, learned Public Prosecutor appearing on behalf of the respondent. 2. By this Revision Application, the petitioner has challenged the judgment and order dated 30/03/2012 passed by the learned Assistant Sessions Judge – I, Panaji in Criminal Appeal No. 33 of 2012 and has prayed to acquit him of the offence with which he has been charged in Criminal Case No. 201/S/2010/A. 3. The petitioner is the accused in the said Criminal Case no. 201/S/2010/A whereas the respondent is the complainant. Parities shall hereinafter be referred to as per their status in the said Criminal Case. 4. The accused faced trial for offences punishable under Sections 279, 304-A and 337 of the Indian Penal Code (I.P.C., for short). The case of the prosecution, in short, was that: On 12/02/2010 at around 5.20 p.m. the accused drove Swaraj Mazda Pick Up bearing no. GA-02/U-5879 in a rash and negligent manner while proceeding from Aldona to Ecoxim and upon reaching near the speed breaker on public road near Church of Pomburpha dashed against a Deo scooter bearing no. GA-07/S-2555 which was ridden by one Sidharth Kudnekar. The dash was allegedly given from the rear side to the Deo scooter and wife of said Sidharth namely Trima Kudnekar alias Trima Monika Rodriques, who was the pillion rider, as a result of the said dash, fell down and sustained various injuries including crushing damage to the head as a result of which she died. Mr. Sidharth Kudnekar also received simple injuries. 5. The prosecution, in order to prove its case, had examined in all eight witnesses. The statement of the accused was recorded under Section 313 of Code of Criminal Procedure. The case of the accused was that after he crossed the first speed breaker, the scooterist overtook from wrong side and could not control his scooter and dashed on the left side of the Swaraj Mazda pick up and fell on the left hand side rear tyre. The accused examined one witness by name Ratnakar Calangutkar as DW1. 6. The case of the accused was that after he crossed the first speed breaker, the scooterist overtook from wrong side and could not control his scooter and dashed on the left side of the Swaraj Mazda pick up and fell on the left hand side rear tyre. The accused examined one witness by name Ratnakar Calangutkar as DW1. 6. Upon consideration of the entire evidence on record, the trial Magistrate held the accused guilty of all the said offences punishable under Sections 279, 304-A and 337 of I.P.C. The accused was sentenced to 15 days simple imprisonment on each count and insofar as the offences under Sections 279 and 304-A of I.P.C. were concerned, he was further sentenced to pay fine of Rs. 1,000/- each and in default to undergo 5 days simple imprisonment on each count. Under Section 337 of I.P.C., the accused was further sentenced to pay a fine of Rs. 500/- and in default to undergo 2 days simple imprisonment. It was directed that if the fine amount under Sections 337 and 304-A of I.P.C. was realised, the same shall be paid to the complainant Sidharth Kudnekar. 7. Aggrieved by the said judgment and order of the trial Court, the accused filed Criminal Appeal bearing no. 128 of 2011 before the Sessions Court at Panaji. On its part, the State also filed Criminal Appeal No. 33 of 2012, challenging the quantum of sentence imposed on the accused and for enhancement of the same. The learned Assistant Sessions Judge by Judgment dated 30/03/2012 dismissed the appeal filed by the accused and allowed the appeal filed by the State. As a result of the same, the accused came to be sentenced for the offence punishable under Section 304-A of I.P.C. to undergo Simple Imprisonment for a period of six months and to pay a fine of Rs. 5,000/- in default to undergo further simple imprisonment for three weeks. Insofar as, the offence under Section 279 of I.P.C. is concerned, the accused was sentenced for a period of one month and to pay a fine of Rs. 1,000/- in default to undergo further simple imprisonment for a period of two weeks. Lastly, for the offence punishable under Section 337 of I.P.C., the accused was sentenced to simple imprisonment for a period of one month and to pay a fine of Rs. 1,000/- in default to undergo further simple imprisonment for a period of two weeks. Lastly, for the offence punishable under Section 337 of I.P.C., the accused was sentenced to simple imprisonment for a period of one month and to pay a fine of Rs. 2,000/- and in default to undergo simple imprisonment for further period of two weeks. The period of imprisonment so imposed were directed to run concurrently. The said judgment and order dated 30/03/2012 passed by the learned Assistant Session Judge-I, Panaji is impugned in the present revision application. 8. Mr. Bras De Sa, learned Counsel appearing on behalf of the accused, submitted that if the accused had given dash of the pick up to the Deo Scooter on its rear side, then there was no possibility of the pillion rider Mrs. Trima to go under the rear left side tyre of the pick up. Relying upon Newton's Second Law of motion, he submitted that if the pick up had proceeded in a straight line, the pillion rider would never come under the rear left tyre of the said pick up. He invited my attention to the sketch of scene of accident which shows the pick up standing in straight position on the left side of the road. He submitted that admittedly there were two speed breakers on the said road and the height of both the speed breakers was more than the normal height. He, therefore, submitted that the possibility of PW1 himself loosing control over the scooter due to which his wife fell down and came below tyre of the truck cannot be ruled out. He submitted that even otherwise considering the panchanama of the scene of accident and the sketch read with evidence of DW1 Ratnakar Calangutkar, it was proved that the accident had occurred due to the fault of PW1 himself. Learned Counsel submitted that the accident had taken place at 5.20 p.m. on 12/02/2012 but the panchanama of scene of accident was drawn at 18.00 hours due to which the prosecution could not prove the point of impact as also the position soon after the accident. Learned Counsel submitted that the accident had taken place at 5.20 p.m. on 12/02/2012 but the panchanama of scene of accident was drawn at 18.00 hours due to which the prosecution could not prove the point of impact as also the position soon after the accident. He submitted that the case of the accused that the public had gathered, on account of blockage of traffic and had asked the accused to remove the pick up and, therefore, the pick up was removed from the place of accident and was parked ahead at a distance of about 40 metres is acceptable position and could not have been disbelieved. He, therefore, urged that both the Courts below have erred in holding that the rashness or negligence, on the part of the accused, was proved. He submitted that if really the tempo had given dash to the scooter from behind, the scooter would have suffered severe damages which has not happened in the present case. He also pointed out that PW1 who was riding the said scooter sustained minor injuries which also would go to show that the dash was not given to the scooter from behind. He further submitted that the possibility that the accident had occurred on account of sudden and unexplained de-acceleration by PW 1, cannot also be ruled out. He, therefore, submitted that from all counts benefit of doubt ought to have been given to the accused. 9. Per contra, Mr. Rivankar, learned Public Prosecutor, submitted that PW 1 who is the best witness being the rider of the scooter on which the deceased was sitting as a pillion rider, is wholly reliable since his evidence is not shaken in the cross-examination and the same inspires confidence and further there is corroboration on account of the panchanama of the scene of accident and sketch proved by PW2 and the accident report forms proved by PW6. He pointed out that the damages to the pick up were on the front bumper at the left hand side and its left hand side head light was broken, whereas the rear portion of the scooter was damaged, the tail light was broken and rear number plate was also damaged. He pointed out that the damages to the pick up were on the front bumper at the left hand side and its left hand side head light was broken, whereas the rear portion of the scooter was damaged, the tail light was broken and rear number plate was also damaged. He submitted that both the courts below rightly held that the accident had occurred due to the fault of the accused and that the death of Trima was direct consequence of the rash and negligent driving of the pick up by the accused. The learned Public Prosecutor further submitted that DW 1, Ratnakar Calangutkar did not give any statement to the police. According to the learned Public Prosecutor, the presence of DW1 at the spot is itself doubtful. He submitted that if the version as given by DW1 is to be believed then there had to be damages to the scooter on its right hand side. He pointed out that there was no damage to the scooter on its right hand side. He, therefore, urged that there is no scope for interference with the impugned judgment and order. 10. I have gone through the record and proceedings of the Criminal Case no. 201/S/2010/A. I have considered the submissions advanced by the learned Counsel for the parties. 11. There is no dispute that the deceased Trima, wife of PW1, was pillion rider on the said Deo scooter and she died as a result of injuries sustained by her in the motor vehicle accident involving the pick up driven by the accused. The evidence of PW5, Dr. Siddharth Banaulikar and memorandum of autopsy prepared and signed by him which is at Exhibit 15-C, duly proves that Trima had sustained crushing damage to the head and various other injuries consequent to run over motor vehicle accident and that resulted into her death. 12. There is also no dispute that the rider namely PW1 had sustained simple injuries in the same accident. PW4 Dr. Siddhi Narvekar had given her certificate which is at Exhibit 12-C, which duly proves that PW1 had sustained simple injuries. What is pertinent to note that PW 4, Dr. Narvekar had also examined the accused who had sustained some injuries. The accused had given history of motor vehicle accident at Pomburpha followed by assault by public. 13. PW4 Dr. Siddhi Narvekar had given her certificate which is at Exhibit 12-C, which duly proves that PW1 had sustained simple injuries. What is pertinent to note that PW 4, Dr. Narvekar had also examined the accused who had sustained some injuries. The accused had given history of motor vehicle accident at Pomburpha followed by assault by public. 13. The only question, therefore, which arises for determination is whether the accused drove the said Swaraj Mazda pick up in a rash and negligent manner and thus caused the accident. 14. PW 1 Siddharth Kudnekar deposed that on 12/02/2010 he and his wife namely Trima were traveling on Deo scooter bearing no. GA-07/S-1255 and they had crossed Pomburpha ferry and were proceeding towards Ecoxim direction. He deposed that when they reached on the road near the speed breaker where there is a school, he slowed down the scooter and at that time it was about 5.20 p.m. He stated that he was riding the scooter from the left hand side of the road and the Swaraj Mazda came from behind and it dashed against his scooter on the rear side as a result of which he and his wife along with the scooter fell down and he found that his wife had died on the spot on the road. PW 1 stated that after giving the dash, the pick up did not stop and proceeded further to an extent of 40 metres and then stopped. He has stated that thereafter police came to the spot and took the dead body of his wife and also took him to Azilo hospital. PW1 stated that his wife had sustained crush injuries on her head and pieces of flesh of her dead body and blood had fallen on the spot. PW1 had lodged complaint at Mapusa Police Station which is at Exhibit 7-C. Except an omission to the effect that PW1 did not state in the complaint that after the accident the truck stopped at a distance of about 40 metres from the place of accident, there are no other omissions or contradictions in the deposition of PW1 viz-a-viz the complaint lodged by PW1 on very day of the accident. A perusal of the cross-examination of the PW 1 reveals that his testimony in the examination-in-chief is not at all shaken and he has stood firmly to the test of cross-examination. A perusal of the cross-examination of the PW 1 reveals that his testimony in the examination-in-chief is not at all shaken and he has stood firmly to the test of cross-examination. The testimony of PW1 is wholly reliable since it truly inspires confidence. PW 1 had denied the suggestion that he was over taking the pick up from the wrong side. 15. PW2, Shri. Sandeep Belgekar acted as one of the panch witnesses for the panchanama of the scene of offence and the sketch which are at Exhibit 9-C Colly. His evidence reveals that at the spot there was a two wheeler vehicle namely Deo Scooter which had fallen on the kaccha road on the left hand side of the road leading from Ecoxim to Pomburpha and there was a Sawaraj Mazda pick up which was on the left hand side of the road facing Ecoxim. PW2 saw the tail light of the Deo Scooter which was on the road and also the dead body of the lady. He has proved that the spot of the accident was on the left side of the road leading to Ecoxim. The width of the road at the spot was five and half metres and there was a distance of two metres from the left side of the tar road leading to the Ecoxim. PW 2 has stated that there were damages to the rear side of the Deo scooter and the tail light of the scooter was detached. He has stated that the panchanama of the scene of accident and the sketch was drawn and he has identified his signature on both. The position as shown in the sketch duly supports the version given by PW1. In the cross examination of PW1, the alleged “Newton's Second Law of Motion” has not been suggested to him. 16. The evidence of PW6 Shri Minesh Tar, the Motor Vehicle Inspector and the accident report forms which are at Exhibit 17-C and 18-C, prepared and signed by him, duly prove that the front bumper of the said pick up of the accused was damaged at its left side and further the left side head light was broken. The said evidence further proves that the rear portion of the Deo scooter was damaged and the tail light was broken as well as the rear number plate was damaged. The said evidence further proves that the rear portion of the Deo scooter was damaged and the tail light was broken as well as the rear number plate was damaged. This lends support to the version of PW1 that the pick up had dashed the scooter from back side. As has been rightly pointed out by learned Public Prosecutor, no damage to the right hand side of the scooter were noticed during the panchanama as well as during the inspection done by the Motor Vehicle Inspector. Therefore, the version given by DW1 who, otherwise was not cited by the Investigating Officer as a witness and did not bother to give statement to the police, cannot be relied upon. 17. A suggestion has been put by the learned Advocate for the accused to PW 8 Balu Jadhav, the Head Constable, who had drawn the panchanama of the scene of accident that since there was traffic jam, the Swaraj Mazda was asked to be shifted from the place of accident to allow the flow of traffic. PW 8 has answered that he does not know about the same. The said case of the accused cannot be believed because a serious accident had taken place, in which death of a lady was caused and the accused could not have moved the vehicle. In any case, there is no evidence to prove that the accused had in fact removed the pick up from the actual accident spot. As already stated above, DW1, who is otherwise a chance witness is not reliable. The fact that the pick up driven by the accused was not stopped soon after the dash and went further to a distance of about 140 metres, itself throws light on the rashness and negligence of the accused. 18. In the circumstances above, the findings of the trial Magistrate and also of the learned Assistant Sessions Judge to the effect that the accident had occurred due to the rash and negligent act of the accused cannot be faulted. The accused has been rightly held guilty and convicted of the offences punishable under Sections 279, 304-A and 337 of I.P.C. 19. The question is whether the enhancement in the quantum of sentence as made by the learned Assistant Sessions Judge is reasonable or whether it ought to be altered. 20. In this regard, Mr. The accused has been rightly held guilty and convicted of the offences punishable under Sections 279, 304-A and 337 of I.P.C. 19. The question is whether the enhancement in the quantum of sentence as made by the learned Assistant Sessions Judge is reasonable or whether it ought to be altered. 20. In this regard, Mr. Bras De Sa, learned Counsel, on the point of sentence, submitted that the accused remained in custody for about 20 days and is ready to pay a reasonable amount of compensation to the husband of the deceased. He submitted that the trial Magistrate had taken into account the fact that this was the first offence committed by the accused. He submitted that the trial Magistrate had sentenced the accused to undergo imprisonment for 15 days and actually the accused has already undergone imprisonment of about 20 days. He, therefore, submitted that interest of justice would be served if the accused is directed to pay a reasonable amount of compensation to the husband of the accused and to undergo imprisonment already undergone by him. The learned Public Prosecutor, on the other hand left the matter to the discretion of this Court, however, by adding that if at all compensation is to be awarded, the same should not be less than Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand only). 21. It is seen from the records that after passing the impugned judgment and order, the learned Assistant Sessions Judge took the accused in custody on 30/03/2012 and he was committed to the Sada Jail, Sada Vasco. The accused remained in jail till 20/04/2012 on which date he was released on bail. Therefore, the accused has already undergone imprisonment in jail for about 20 days. Considering all the aspects of the case and in the interest of justice, I am of the view that the imprisonment of about 20 days which is already undergone by the accused, coupled with payment of compensation of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand only) should serve the interest of justice insofar as punishment to the accused, is concerned. Learned Counsel for the accused undertakes, on behalf of the accused, to deposit a demand draft of the said amount in this court, today itself. 22. 1,50,000/- (Rupees One Lakh Fifty Thousand only) should serve the interest of justice insofar as punishment to the accused, is concerned. Learned Counsel for the accused undertakes, on behalf of the accused, to deposit a demand draft of the said amount in this court, today itself. 22. In the result, the revision application is partly allowed: (a) The conviction of the accused for the offence punishable under sections 279, 304-A and 337 of the I.P.C. is maintained. However, the sentence imposed by the learned Assistant Sessions Judge, Panaji is altered. The accused stands sentenced for all the three offences, cumulatively to undergo imprisonment for a period of 20 days, which he has already undergone and to pay compensation of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand only) to PW1, Sidharth Kudnekar. (b) The said compensation of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand only) shall be deposited in the Registry of this Court , in the form of a demand draft. Registry to accept the same. (c) Registry to issue notice to PW1 Sidharth Kudnekar informing about the deposit and about his entitlement to withdraw the same. (d) The payment of compensation as above shall not be taken into account in any Claim Petition or other proceedings, if any, filed by PW 1 or any other dependent of the deceased. 23. Revision Application stands disposed of accordingly.