Back
2018 Supreme(Bom) 2115
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT GOA BENCH
C.V. Bhadang, J.
Bonny D. Souza S/o Jose D. Souza – Appellant
Versus
State of Goa, through Police Inspector, Margao Police Station – Respondent
Criminal Revision Application No. 30 of 2018
Decided On : 22-11-2018
Advocate Appeared:
Nikhil Pai, Pravin Faldessai.
Headnote:
Indian Penal Code,1860 – Section 279 and 304A - Motor Vehicles Act, 1988 – Section 185 and 185(a) - Bombay Prohibition Act – Motor vehicular accident – Compensation claim - Deceased then aged 18 years, was proceeding on foot along with her younger sister (PW-2) when she was hit by a Car driven by applicant accident occurred near MES Gate - Incidentally, deceased as well as vehicle involved in accident were proceeding from Rawanfond towards Canacona - It is said that applicant, who was driving vehicle was under influence of liquor at time of the accident - In accident, vehicle went to right side of road, hit deceased and then swayed towards the left and ultimately hit a compound wall - In the accident, was thrown into a drain adjacent to road and sustained injuries to which she subsequently succumbed - Before learned Magistrate, prosecution examined in all twelve witnesses, applicant neither entered into witness box nor examined any defence witnesses - Whether smell from applicants mouth and breathe was of alcohol or not – Held, learned Counsel for appellant made an alternate submission of extending benefit of Probation of Offenders Act to the applicant - It is submitted that at time of the accident, applicant was 21 years of age and he has no criminal antecedents to his discredit and has been of a good behaviour - He submits that benefit of the Probation Offenders Act may be extended to the applicant and he may be released on admonition - Learned Counsel for appellant made an alternate submission of extending benefit of Probation of Offenders Act to applicant - It is submitted that at time of accident, applicant was 21 years of age and he has no criminal antecedents to his discredit and has been of a good behaviour - He submits that benefit of the Probation Offenders Act may be extended to applicant and he may be released on admonition - Court have given my anxious consideration to circumstances and submissions made and in court considered view, it would not be appropriate to extend benefit of Probation of Offenders Act to applicant in present case - It is a matter of common experience, of which a judicial notice can now be taken that highways and city roads have become the greatest death traps - For these reasons, court not inclined to extend benefit of Probation of Offenders Act to applicant in the present case - Conduct of applicant also does not deserve benefit of the Probation of Offenders Act being extended - Applicant, at trial, even disputed that he was driving vehicle, which contention is given up at this stage - Criminal revision application is partly allowed.
JUDGMENT :
C.V. Bhadang, J.
1. The applicant/accused was prosecuted for the offence punishable under Sections 279 and 304A of Indian Penal Code (IPC, for short) and Section 185 of the Motor Vehicle's Act, 1988 (M.V. Act, for short) before the learned Judicial Magistrate, First Class at Margao in Criminal Case No. 232/S/2012/A. The learned Magistrate, by a judgment and order dated 31/05/2017, found the applicant guilty of all the three offences. The applicant has been sentenced to undergo Simple Imprisonment for a period of four months on each count. All the sentences are directed to run concurrently.
2. The applicant unsuccessfully challenged the same before the learned Sessions Judge in Criminal Appeal No. 66/2017, which has been dismissed on 27.04.2018. Hence, this Revision Application.
3. The prosecution case may be briefly stated thus:
On 22.04.2012, now deceased Ameena, then aged 18 years, was proceeding on foot along with her younger sister Sabina Khan (PW-2) when she was hit by a Maruit Swift Car No. GA-06-D-7561, driven by the applicant The accident occurred near the MES Gate, Rawanfond, Margao. Incidentally, the deceased Ameena as well as the vehicle involved in the accident were proceeding from Rawanfond towards Canacona. It is said that the applicant, who was driving the vehicle was under the influence of liquor at the time of the accident. In the accident, the vehicle went to the right side of the road, hit the deceased and then swayed towards the left and ultimately hit a compound wall.
In the accident, Ameena was thrown into a drain adjacent to the road and sustained injuries to which she subsequently succumbed.
4. Before the learned Magistrate, the prosecution examined in all twelve witnesses, namely Abdul Lohar (PW-1), Sabina Khan (PW-2), Percy Coutinho (PW-3), Anton Pereira (PW-4), Karima Gauns Khan (PW-5), Dr. Avinash Pujari (PW-6), Vijay Jain (PW-7), Seema Palav (PW-8), Dr. Sanjay Dalvi (PW-9), Keshav Shetgaonkar (PW-10), Prajyot Fadte (PW-11) and PSI Ajit Umarye (PW-12) and produced contemporary record of the investigation.
The applicant neither entered into the witness box nor examined any defence witnesses.
5. The learned Magistrate found the applicant guilty on all the three counts and sentenced him as aforesaid, which has been confirmed by the learned Sessions Judge.
6. I have heard Shri Pai, the learned Counsel for the applicant and Shri Faldessai, the learned Additional Public Prosecutor for the respondent. With the assistance of the learned Counsel for the parties, I have gone through the record.
7. Shri Pai, the learned Counsel for the applicant has submitted that Section 185(a) of the M.V. Act requires the alcohol content exceeding 30 mg per 100 ml of blood for the offence of a drunken driving being proved. It is submitted that in the present case, PW9 had only drawn 10 cc of blood and the evidence of PW8, who analysised the sample, would show that 110 mg % of alcohol was found. It is, thus, submitted that the said percentage is not sufficient to hold the applicant guilty for the offence punishable under Section 185(a) of the M.V. Act. It is submitted that the procedure for drawing of the sample is also not proper. It is submitted that PW-9 had admitted in his cross-examination that he cannot accurately ascertain whether the smell from the applicant's mouth and breathe was of alcohol or not. It is, therefore, submitted that the conviction of the applicant under Section 185 of the M.V. Act is not proper. The learned Counsel sought to place reliance on the guidelines for conducting the blood test as prescribed under the Bombay Prohibition Act. Although it was not disputed that the guidelines per se would not apply in the present case (as there is no similar enactment prevailing in the State of Goa), it is submitted that the guidelines are salutary in nature and the prosecution will be required to ensure that similar procedure is followed. For instance, it was pointed out that while obtaining the blood sample, s
