Baburao Kudalkar vs State of Goa

N.A. Britto, J.—Challenge in this revision petition is to the judgment dated 29/01/2009 of the learned Sessions Judge, upholding the judgment dated 25/11/2008 of the learned J.M.F.C., convicting and sentencing the petitioner/accused u/s 279 and 304-A IPC. Heard Shri R. Rao, learned Counsel on behalf of the petitioner and Shri Ferreira, the learned Public Prosecutor.

An accident took place on 26/12/2003 at about 9.05 hrs. at Velim Market on the road from Margao to Betul involving a minibus bearing No. GA-01-T-1782 driven by the petitioner/accused in which one Benedict Correia, aged about 51 years died. The case of the prosecution was that it is the accused who drove the said bus in a rash and negligent manner while proceeding from Margao to Betul and dashed against the deceased, the rider of Scooty bearing o. GA-02-M-4608 causing injuries to him to which he succumbed.

Prosecution had examined several witnesses in support of the charge.

The case of the accused as reflected in the cross-examination of the prosecution witnesses was that it is the deceased who drove his Scooty and dashed against the bus near the left rear wheel, but in his statement recorded u/s 313 of the Code, it was the case of the accused that the said Benedict, as he was suffering from epileptic fits, fell on the door of the bus and injured himself. There was froth in his mouth.

Amongst the witnesses examined by the prosecution, there was Emedio Fernandes/PW1 who was the pancha witness and through whom the panchanama and sketch of the scene of accident was proved and the said panchanama and the sketch show that there was a space of about 2.5 mts. on the right hand side of the bus and about 1.55 mts. on the left side of the bus from the edge of the rear wheels. In other words, the panchanama and the sketch show that there was sufficient space towards the right of the bus on the tar road and there was no particular reason why the accused had to drive almost at the edge of the road. The prosecution also examined Augusta Correia/PW2, the sister-in-law of the deceased. The prosecution also examined her son Arvind Correia/PW3 who at the relevant time was of about 8 years of age and about 12 years at the time when his evidence was recorded before the trial Court. Prosecution also examined Agostinho Fernandes/PW4, another eye witness, who was present in the market. From the evidence of Augusta Correia/PW2, Arvind Correia/PW3 and Agostinho Fernandes/PW4, it was firmly established by the prosecution that all three of them i.e., the deceased, Augusta/PW2 and Arvind/PW3 came on the said Scooty and after the same was parked off the tar road on the left hand side, but in the direction facing Margao, the said Augusta Correia/PW2 went to purchase fish in the fish market, while the deceased remained seated on the said Scooty on the driver''s seat while the said Arvind Correia/PW3 remained seated on the pillion of the said Scooty, when the accident took place. In other words the accident took place between the stationary scooty and the minibus driven by the accused.

The said Arvind Correia/PW3 stated that the bus which was driven by the accused, and, regarding which there is no dispute, was proceeding towards Betul and came and gave a dash to their Scooty. As a result of dash he fell on the ground and his uncle was dragged along with the bus. He also stated that he sustained injuries on his forehead and on his right hand side, a fact which has been corroborated by his mother, the said Augusta Correia/PW3, as well. Agostinho Fernandes/PW4 stated that he had witnessed the accident and further stated that the deceased and a young boy were seated on the Scooty which was parked on the left side of the road and was facing towards Margao side. He further stated that the said bus hit the Scooty on his left side and as a result the deceased suffered injuries on his head, back, legs, etc., while Arvind Correia/PW3 suffered minor injuries. In cross-examination he stated that the bus hit the Scooty towards the front door on the passenger side. He also stated in his cross-examination that he saw the bus and the Scooty only after hearing the noise of the accident.

The learned trial Court after considering the evidence produced, came to the conclusion that the theory put forth by the accused as regards epileptic fits was inconsistent with the medical opinion and was not acceptable. The learned trial Court also came to the conclusion that the Scooty of the deceased was stationary and was parked on the left hand side of the road and as per the sketch the Scooty is shown to be lying in front of the left wheel of the minibus. The learned trial Court further observed that the position of the vehicles and the nature of the injuries caused to the deceased coupled with the nature of damages caused to both the Scooty and minibus undoubtedly made it incumbent to draw only one inference and that is culpable negligence on the part of the accused. The learned trial Court also observed that in the case at hand, the accident had taken place on a straight road and the accused himself had stated that there is a bus stop ahead of the accident spot and the bus had stopped at the bus stop to facilitate alighting of passengers and as such the accused who was driving the said bus was in a position to see the Scooty which was parked on the left side of the road, a little ahead of the bus and thus it was within his power to prevent injury to the deceased by observing ordinary care and skill thereby avoiding an accident but the accused in utter disregard of the consequences drove the bus in a negligent manner and caused the accident and he was liable under the Sections.

The learned first appellate Court observed that the evidence of Dr. Girish Kamat/PW5 coupled with suggestions put to him, emerged that according to the accused, the deceased was suffering from epileptic fits and due to which he fell down from his bike and thereafter was run over by the bus driven by the accused and since the accused had failed to prove that the deceased was suffering from epileptic fits, he also failed to prove that the deceased fell down due to epileptic fits and as admittedly the deceased was run over by the bus which was driven by the accused, (coupled with the evidence of eyewitnesses to which reference is made) it became clear that the accident had occurred on account of the fault of the accused i.e. as the accused dashed his bus on the Scooty which was parked on the left side of the road facing Margao.

Shri Rao, the learned Counsel on behalf of the accused, submits that the findings of the facts recorded by the Courts below are based on presumptions and surmises. Learned Counsel further submits that no conviction could be recorded against the accused since it was conceded by the prosecution that the act of the accused did not amount to rashness and the learned trial Court had held in para 18 of the judgment that it was incorrect to say that the accident was caused due to negligence of the accused. Learned Counsel further submits that both the Courts below did not consider that Arvind Correia/PW3 being of young age at the relevant time and being the nephew of the deceased was capable of being tutored. He further submits that the learned trial Court has proceeded to convict the accused based solely on the doctrine of res ipsa loquitur which could not be applied in a criminal case and in support of his submission learned Counsel has relied on the judgments reported in the case of B.C. Ramachandra Vs. State of Karnataka, , Syad Akbar Vs. State of Karnataka, and Jacob Mathew Vs. State of Punjab and Another, . As regards revisional powers of this Court, learned Counsel has relied on the case of Caetano Colaco V/s. Joao Rodrigues (AIR 1966 GBD 32) as well as the case of Dangarshi Madanlal Zunzunwala V/s. M/s. Deviprasad Omprakash Bajoria & Anr. (1985 Cri.L.J. 1943).

In the first case i.e. Caetano Colaco V/s. Joao Rodrigues (supra), a Bench of three Judges of the Court of Judicial Commissioner has held that the revisional power or jurisdiction as far as the High Court is concerned is that it can consider the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceeding of an inferior Court. But even so, this jurisdiction is not to be exercised in every case of impropriety or illegality, unless it causes failure of justice and as a broad proposition it can be stated that inference can be justified where (a) the decision is grossly erroneous, (b) where there is no compliance with the provisions of law, (c) where the finding of fact affecting the decision is not based on the evidence, (d) where material evidence of the parties is not considered, and (e) where judicial discretion is exercised arbitrarily or perversely and these instances are illustrative and not exhaustive and each case must of necessity depend on the facts and circumstance of the particular case.

In the second case i.e. Dangarshi Madanlal Zunzunwala V/s. M/s. Deviprasad Omprakash Bajoria & Anr. (supra), it has been stated that if the Court arrives at a finding without properly considering the evidence on record and without applying the principles of law correctly, it can never be called a "finding of fact" in the accepted sense, as in that case it will amount to perverse and illegal appreciation of evidence and a finding of fact given on its background, even if concurrent, can never be binding on the revisional Courts and to maintain such a finding would lead to miscarriage of justice and amount to travesty of law and while exercising its revisional powers u/s 397 r/w 401 of the Code, the Court has full powers of satisfying itself or himself as to the correctness, legality or propriety of any finding and an illegal finding does not become a legal one only because it is concurrent.

On the other hand, Shri Ferreira, the learned P.P. on behalf of the respondent, has submitted that if the defence taken by the accused was true, then the minor Arvind Correia/PW3 could not have sustained any injuries nor the scooter would have been damaged. Learned Public Prosecutor further submits that in the case at hand there are concurrent findings of facts and there is no perversity indicated. Learned Counsel further submits that in case the deceased was suffering from epileptic fits, the best person to depose the said fact would have been the said Augusta Correia/PW2 or for that matter Arvind Correia/PW3 and that the accused took the said plea belatedly only at the stage of his statement u/s 313 of the Code, by way of an afterthought.

The judgment of the learned Trial Court ought to be read as whole and not in a sentence taken out of context. In my view, both the Courts below, on correct appreciation of evidence produced have come to the conclusion that the accident took place on account of the fault of the accused. Not even a suggestion was put to Arvind/PW3 that he had deposed falsely because he was tutored. I am entirely in agreement with the submission now made by the learned P.P. True, the accused was entitled to keep to his left, even on a single lane road, as in the present case, as contended on behalf of the accused but certainly not with disregard to the stationary scooter, when much space on the right was available.

As already stated, the prosecution has been able to prove through the evidence of Emedio Fernandes/PW1 that the scooter was lying on the extreme left side of the tar road and there was still a space of about 2.50 mts. on the right hand side of the road through which the accused could have driven his bus on his onward journey to Betul. Likewise, the prosecution has been able to prove through the evidence of Augusta Correia./PW2, the said Arvind Correia/PW3 and Agostinho Fernandes/PW4 that the said Scooty was parked on the left side of the road. The defence taken by the accused is palpably false and is falsified by the evidence of the said witnesses as well. In case the deceased had fallen off from the scooty and come under the tyres of the bus driven by the accused, then there would have been no damage to the front side of the Scooty as deposed to by the said witnesses as well as Prakash Kholkar/PW6 and injuries on Arvind Correia/PW3 who was sitting on the pillion of the said Scooty nor the damage on the bus by way of routing of 1 inch rib near the passenger door. This damage in all probability was caused due to the impact of the Scooty rather than the impact of a person falling upon the bus. Counsel on behalf of the accused pointed out to the post mortem report-Exhibit 20C, proved through Dr. Girish Kamat/PW5, and submitted that it disclosed that there was froth on the mouth of the deceased which according to the learned Counsel is a sign of epilepsy but I must hasten to add that no opinion in that regard was at all solicited from Dr. Girish Kamat. The facts proved by the prosecution clearly show that it is the accused who drove his bus negligently and dashed against a stationary Scooty parked on the left side of the road and thereby caused the death of the deceased, the rider of the said Scooty. The facts proved by the prosecution either with the aid of the maxim res ipsa loquitur or without it, show that the accused driver drove the bus in utter negligent manner and dashed on the said scooty, even when there was ample space for him on the tar portion of road, to proceed straight to his destination.

The principle of res ipsa loquitur as a principle has always been followed in criminal cases and requires to be followed moreso whenever, a moving vehicle causes an accident involving a stationary object. Way back in Allimuddin s/o. Abdul Wahab V/s. Emperor (AIR (32) 1945 Nagpur 242) the maxim of res ipsa loquitur was followed observing that the maxim res ipsa loquitur does not conflict with principle that burden of proving negligence lies on prosecution. That was the case where a lorry was driven at a speed of 16 miles per hour and the vehicle had gone off the road by at least 12 feet before it dashed against a cow and had knocked down the deceased.

In the case of Shyam Sunder and Others Vs. The State of Rajasthan, the Apex Court held that the maxim res ipsa loquitur does not embody any rule to substantive law nor a rule of evidence but is resorted to when an accident is shown to have occurred and the cause of the accident is primarily within the knowledge of the driver.

Then it was acknowledged in Syad Akbar Vs. State of Karnataka, . The Apex Court referring to the decisions of the Courts in England, United States, Australia and Canada observed that there were two lines of approach in regard to the application and effect of the maxim res ipsa loquitur and observed as follows;

However, shorn of its doctrinaire features, understood in the broad, general sense, as by the other line of decisions, only as a convenient ratiocinative aid in assessment of evidence, in drawing permissive inferences u/s 114, Evidence Act, from the circumstances of the particular case, including the constituent circumstances of the accident, established in evidence, with a view to come to a conclusion at the time of judgment, whether or not, in favour of the alleged negligence (among other ingredients of the offence with which the accused stands charged), such a high degree of probability, as distinguished from a mere possibility has been established which will convince reasonable men with regard to the existence of that fact beyond reasonable doubt. Such harnessed, functional use of the maxim will not conflict with provisions and the principles of the Evidence Act relating to the burden of proof and other cognate matters peculiar to criminal jurisprudence.

(emphasis supplied )

Such simplified and pragmatic application of the notion of res ipsa loquitur, as a part of the general mode of inferring a fact in issue from another circumstantial fact is subject to all the principles, the satisfaction of which is essential before an accused can be convicted on the basis of circumstantial evidence alone. There are : Firstly all the circumstances, including the objective circumstances constituting the accident, from which the inference of guilt is to be drawn, must be firmly established. Secondly, those circumstances must be of determinative tendency pointing unerringly towards the guilt of the accused. Thirdly, the circumstances should make a chain so complete that they cannot reasonable raise any other hypotheses save that of the accused''s guilt. That is to say, they should be incompatible with his innocence, and inferentially exclude all reasonable doubt about his guilt.

But however having regard to the facts of the case, the maxim was not applied as it found that it was the case of error of judgment and the accused had given the reasonable, convincing explanation of his conduct. Then it was reiterated in the case of Rattan Singh V/s. State of Punjab (AIR 1980 SC 13 84) wherein the Apex Court observed that:

In our current conditions, the law u/s 304-A IPC and under the rubric of negligence, must have due regard to the fatal frequency of rash driving of heavy duty vehicles and of speeding menaces. Thus viewed, it is fair to apply the rule of res ipsa loquitur, of course, with care. Conventional defences, except under compelling evidence, must break down before the pragmatic Court and must be given short shrift.

In the case of Thakur Singh V/s. State of Punjab (2004 SCC (Cri.) 1183) the bus driven by the accused over the bridge had fallen into the canal and the Apex Court stated that in such a situation the doctrine of res ipsa loquitur comes into play and the burden shifts on the man who was in control of the automobile to establish that the accident did not happen on account of any negligence on his part. The contention that there was no negligence was rejected.

In Jacob Mathew Vs. State of Punjab and Another, which is a case of medical negligence a Full Bench of the Apex Court has stated that res ipsa loquitur is only a rule of evidence and operates in the domain of civil law and if at all, it has a limited application in trial on a charge of criminal negligence.

In the case of The Managing Director, Northeast K.R.T.C. Vs. Devidas Manikrao Sadananda, the Court held that the principal function of the maxim is to prevent injustice which would result if the management is compelled to prove the precise cause of the accident, particularly, when the respondent-driver has knowledge of the cause of the accident and the Management has only to prove the accident and nothing more; and that in such cases the driver has to establish that the accident happened due to some cause other than his own negligence and the burden of proof was on the driver to show that the offending vehicle was not driven by him rashly and negligently and the matter was remitted to the Labour Court to decide whether on the facts and circumstances of this case the maxim "res ipsa loquitur" applied or not.

Again in B. Nagabhushanam Vs. State of Karnataka, , the Apex Court accepted the principle that the principle of res ipsa loquitur is applicable in criminal cases.

Coming to the facts of the case proved by the prosecution, the conclusion that the accused was negligent is inevitable with or without the aid of the said maxim. A simple lack of care as such will constitute civil liability and is not enough for a liability under the Criminal Law which requires a very high degree of negligence to be proved and as stated by the Apex Court in Syad Akbar (supra). Probably, of all the epithets that can be applied ''reckless" most nearly covers the case. According to the dictionary meaning ''reckless'' means ''careless'', ''regardless'' or heedless of the possible harmful consequences of one''s acts''. It presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences; but, granted this, recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognizing the existence of the risk and nevertheless deciding to ignore it. In R.V. Briggs ( 1977) 1 ALL ER 475 it was observed that a man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from the act but nevertheless continues in the performance of that act. ( 2008 AIR SCW 5142 ) Criminal negligence is nothing but gross or culpable neglect or failure to exercise all reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular which having regard to circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted. In other words a negligent act is an act done without doing something which a reasonable man guided upon by those considerations which ordinarily regulate the conduct of human affairs would do or act, which a prudent or reasonable man would not do in the circumstances attending it.

The fact that the accused went and dashed the stationary scooty on the extreme left of the road in a case where there was otherwise sufficient road for the accused to pass, is a clear case of gross negligence. The explanation given by the accused that it is the deceased who fell on his bus due to epileptic fits has been found to be false, and in my view rightly. The conviction of the accused u/s 304-A IPC cannot be faulted.

In view of the above, I find there is no merit in this revision and consequently the same deserves to be dismissed.

The accused has been sentenced u/s 304-A IPC to undergo S.I. for 3 months and fine of Rs.500/-and in default of payment of fine to undergo S.I. of one week. The sentence imposed appears to be grossly inadequate.

Notice to the accused to show cause why the sentence u/s 304 IPC should not be enhanced. Shri Rao Accepts notice. Notice for enhancement of sentence is given in the light of the observations of the Apex Court in Thakur Singh V/s. State of Punjab (supra) which have been followed in the case of B. Nagabhushanam V/s. State of Karnataka (supra) as well as in the case of Kuldeep Singh V/s. State of Himachal Pradesh (2008 AIR SCW 5142).

Shri Rao on behalf of the accused, submits that the accused is 52 years of age and is sole bread winner of the family, consisting of his wife and minor child of 10 years of age. He further submits that the accused also suffers from blood pressure and is otherwise an uneducated and considering these factors there is no case for enhancement of sentence. Learned Counsel has also quoted a passage of Simone Weil, a French Philosopher from Quotable Lawyer wherein it is stated that:

Punishment must be an honour. It must not only wipe out the stigma of the crime, but must be regarded as a supplementary form of education compelling a higher devotion to the public good. The severity of punishment must also be in keeping with the kind of obligation which has been violated, and not with the interests of public security.

On the other hand, Shri Ferreira, the learned Public Prosecutor, has submitted that this is a case where not only a death was caused of a person of about 50 years of age but injuries were also caused to his nephew and in fact the sentence imposed by the learned trial Court and affirmed by the first appellate Court could be considered as a flea bite sentence. Learned Public Prosecutor points out that the death of the deceased occurred in a crowded place where the accused being the driver of a public service vehicle ought to have exercised a greater amount of care, and according to the learned Public Prosecutor, the sentence to be imposed ought not to be less then 6 months.

This Court in Criminal Revision Application No. 5/2009 in the case of Shri Devesh Tukaram Chodanker V/s. Shri Martin Fernandes & Anr by judgment dated 27.4.2009 had occasion to consider the case of Rattan Singh V/s. State of Punjab (supra), Prabhakaran V/s. State of Kerala (supra) and Dalbir Singh V/s. State of Haryana (AIR 2000 SC 1677) which was followed in the case of Kuldeep Singh V/s. State of H.P. (supra) and had noted as follows;

The case at hand is almost similar to the case of Rattan Singh (supra) where in the words of the Apex Court, the lethal hand of a truck driver had taken the life of a scooterist - a deadly spectacle so common in our towns and cities. That was almost 3 decades back since then much water has flown down the Zuari. Down the line, things have not improved but on the contrary, the situation has worsened, with more and more deaths taking place on our roads with vehicles becoming larger and more powerful and the road conditions almost remaining the same. The Apex Court refused to interfere with the maximum sentence imposed and that too of two years R.I. Deterrence remains one of the important objects of punishment, as George Saville would put it "men are not hanged for stealing horses but so that horses may not be stolen." Deterrence, as main object of punishment was considered in Rattan''s case and also in Dalbir Singh''s case. Society in general and Courts in particular have now found that the punishment prescribed u/s 304-A is inadequate but so far Legislature has not stepped in. At times efforts are made to bring the case u/s 304 (ii) Indian Penal Code. Courts are therefore required to step in within the frame work of law and impose maximum punishment, when required. Liberal attitude of imposing meagre sentences or misplaced sympathies either on account of lapse of time of personal inconvenience to the accused or his family have been always been counter productive and against the interests of the society. Courts are required to operate sentence system in a way it reflects the conscience of society. The contention that the accused has a wife and two children to look after, must be immediately brushed aside. The deceased too must be having a family. As observed by the Apex Court "it scarcely lies in the mouth of th truck driver who plays with fire to complain of burnt fingers." The contention that the accused had a large family to maintain was immediately shot shown. It was further observed that when life was lost and circumstances of driving were harsh no compassion could be shown. Prabhakaran (supra) has taken note that 82,000 people were killed on roads in the year 2002 and the estimate of people injured is taken 15 to 20 times more than that figure.

In the case of Rattan Singh (supra), the Apex Court refused to interfere with the sentence of two years awarded to a truck driver on the ground that he had to maintain a large family and that the owner of the truck had left the family of the accused in the cold and further stated that when a life was lost and the circumstances of driving are harsh, no compassion could be shown.

In the case of Prabhakaran (supra), the Apex Court noted that the punishment provided u/s 304-A is grossly inadequate in view of he increasing number of vehicular accidents resulting in death of large number of innocent persons but further observed that it was for the legislature to provide for an appropriate sentence.

In the case of Dalbir Singh (supra) the Apex Court observed that while considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. The Apex Court further observed that a professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly that even if he is convicted he would be dealt with leniently by the Court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the Courts can play, particularly at the level of trial Courts, for lessening the high rate of motor accidents due to callous driving of automobiles. (emphasis supplied).

As the law stands today, and in order to curb the ever increasing deaths being caused on the roads due to rash and negligent driving any sentence to be imposed must have deterrent effect so that there is some decrease in fatal accidents.

Punishment is a debt which an offender has to pay to the society. The words of the French philosopher are apt. Considering the facts of the case, in my view at least one year of R.I. ought to have been imposed upon the accused by the learned JMFC. Consequently, the sentence u/s 304-A IPC is hereby enhanced to one year R.I. and a fine of Rs.5,000/-and in default of payment of fine, the accused is hereby ordered to undergo S.I. for a period of 3 months. In case the fine is realized, the same be applied for payment of compensation to the family of the deceased, as ordered by the learned trial Court. At the request of Counsel of the accused, the sentence enhanced u/s 304-A is hereby stayed for a period of 4 weeks from today. Accused to surrender thereafter. Revision petition dismissed. The sentence u/s 304 IPC is enhanced as aforesaid. Accused to surrender after period of four weeks. Bail bonds, if any, executed by the accused are cancelled. Sentences to run concurrently.