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In the High Court of Bombay at Goa
A.P. LAVANDE
State, through Police Inspector
Versus
Sidhesh Shetgaonkar
CRIMINAL APPEAL NO. 40 OF 2010
Decided on : 24-08-2012
Held - Magistrate not marshaled evidence and reasons given by him for acquitting accused not sustainable in law - On a date scrutiny of entire evidence on record, prosecution conclusively establishes that accident occurred due to rash and negligent driving of accused, resulting in causing injuries to six persons - Impugned judgment and order quashed and set aside -Respondent-accused convicted for offences under Sections 279 and 337, IPC and sentenced to undergo simple imprisonment for one day (till rising of Court) and to pay fine of Rs. 500/- under Section 279, IPC and also to pay compensation of Rs. 12,000/- under Section 337, IPC - Appeal allowed.
The view taken by the Magistrate for acquitting the accused is patently unreasonable and the findings recorded by the Magistrate are not upon proper marshalling of the evidence led by the prosecution. Therefore, this is a fit case in which interference is warranted. In Court’s opinion, reasons given for acquittal of the respondent-accused for the offences punishable under Sections 279 and 337 IPC are unsustainable in law and, therefore, the judgment and order of acquittal passed by the Magistrate deserves to be quashed and set aside.
No doubt, the accused has no previous criminal record, but, it is a matter of common knowledge that vehicular accidents are on rise and, therefore, in such matters, a different view has to be taken and, as such, Court is not inclined to extend the benefit of Section 4 of the Probation of Offenders Act, 1958 to the respondent-accused. In Court’s considered view, interest of justice would be served by sentencing the accused to undergo Simple Imprisonment for one day i.e. till rising of the Court for the Offences punishable under Sections 279 and 337, IPC and further sentencing him to pay a fine and compensation to the six persons injured in the accident.
In the result, therefore, the appeal is allowed. The respondent- accused is hereby convicted for the offences punishable under Sections 279 and 337, IPC and sentenced to undergo Simple Imprisonment for one day (till rising of the Court). Both the sentences shall run concurrently. In addition, the respondent- accused is sentenced to pay a fine of Rs.500/- under Section 279, IPC and, in default, to undergo Simple Imprisonment for 15 days. The respondent-accused is further directed to pay compensation of Rs.12,000/- for the offence punishable under Section 337, IPC and, in default, to undergo Simple Imprisonment for two months. The respondent-accused is granted time of four weeks to deposit the compensation, as well as the fine amount in the Court of Judicial Magistrate, First Class, at Ponda. In the event the respondent-accused deposits the compensation, the same shall be paid in equal shares to the six injured passengers referred to in para 25 hereinabove. In the event, the respondent accused does not deposit the fine and/or compensation amount within a period of four weeks, Magistrate shall take appropriate steps to take the accused in custody to serve the in-default sentences imposed on him. The bail bond executed by the respondent shall stand discharged upon deposit of the compensation and the fine amount awarded.
Heard Mr. D. Lawande, Additional Public Prosecutor for the State-Appellant and Mr. V. Menezes, Advocate for the respondent (hereinafter referred to as 'the accused').
2. By this appeal, the appellant-State takes exception to the Judgment and Order dated 16th September, 2009, passed by the Judicial Magistrate, First Class, at Ponda, Goa in Criminal Case No. 97/S/06/A, acquitting the accused for the offences punishable under Sections 279 and 337 of Indian Penal Code (IPC).
3. Briefly, the case of the prosecution is as under:
On 14th February, 2006, at about 11.20 a.m. at Manaswado, Kundai on National Highway 4, the accused drove the tanker bearing registration No. GA-01, Z-2715 in a rash and negligent manner while proceeding from Ponda to Panaji and dashed against the mini bus bearing registration No.GA-02, T-4634 which was driven by PW.2 Mohan Naik. On account of the accident, simple injuries were caused to PW.2 Mohan Naik and five other passengers travelling in the mini bus. After the accident, a panchanama Exhibit 11/C and Sketch Exhibit 12/C were drawn in the presence of pancha witnesses. PW.1 Tukaram Dessai was one of the panch witnesses.
On the next day i.e. 15th February, 2006, PW.2 Mohan Naik, the driver of the mini bus lodged a complain Exhibit 15/C. The Investigating Officer Suresh Kaskar, Head Constable recorded statements of several witnesses in the Goa Medical College Hospital where some of the injured passengers, including PW.3 Sumitra Gaonkar and PW.4 Nasrin Beig were admitted. Both the vehicles were referred for inspection to the Department of Transport and inspection of both the vehicles was carried out by PW.5 Vinod Arlekar. After completion of the investigation, charge-sheet was filed in the Court of Judicial Magistrate, First Class, at Ponda.
4. The learned Magistrate explained the substance of accusation to the accused in respect of the offences punishable under Sections 279 and 337 IPC. The accused pleaded not guilty.
5. The prosecution examined 6 witnesses, namely PW. 1 Tukaram Dessai, PW.2 Mohan Naik, the driver of the mini bus, PW.3 Sumitra Gaonkar, and PW.4 Nasrin Beig, both of whom were travelling in the mini bus and were injured in the accident, PW.5 Vinod Arlekar, Motor Vehicle Inspector and PW.6 Investigating Officer Suresh Kaskar.
6. The defence of the accused was of total denial. It was further his case that the accident occurred on account of rash and negligent driving by PW.2 Mohan Naik. Learned Magistrate, by the impugned Judgment and Order, acquitted the accused of both the offences.
7. Mr. Lawande, learned Addl. P.P. appearing for the appellant submitted that the learned Magistrate has not analysed the evidence in its proper perspective and the findings recorded by the learned Magistrate are not borne out from the evidence on record. He further submitted that the evidence of the three eye witnesses, namely PW.2 Mohan Naik, PW.3 Sumitra Gaonkar and PW.4 Nasrin Beig have not been shaken in the cross examination and, their testimonies stand corroborated by PW.1 Tukaram Dessai, as well as by the scene of offence panchanama and the sketch. He further submitted that the finding recorded by the learned Magistrate that the accident could have been caused on account of contributory negligence on the part of both the drivers is patently unsustainable on facts and in law. He further submitted that there is absolutely no reason to disbelieve the versions of PW.2, PW.3 and PW.4 that the mini bus was being driven on the left side of the road and it was the accused who drove the tanker in a rash and negligent manner and caused the accident.
In support of his submissions, Mr. Lawande relied upon the Judgment of Karnataka High Court in the case of State of Karantaka vs. Rajakumar (MANU/KA/0260/1987) and an unreported Judgment delivered by this Court in the case of State vs. Antonio Soares, dated 25th August, 2006, passed in Criminal Appeal No.10 of 2005.
8. Per contra, Mr. Menezes, learned Counsel a
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