Mr. Kishor Naik through his next friend Mr. Rajaram Gawas vs State and Public Prosecutor, High Court of Bombay

Heard Shri S. D. Sapeco, learned Counsel on behalf of the applicant and Shri C. A. Ferreira, learned Public Prosecutor on behalf of the Respondents.

The applicant is the driver of the bus bearing No. GA-01-Z-6579. The bus met with an accident on 30-11-2009 on its way to Mapusa from Panaji. The applicant was tried under Sections 279 and 337 I.P.C. The prosecution had examined eight witnesses. The first three were members of one family who were travelling in the said bus. PW4/A. Podwal was a panch witness. PW5/Narayan Kalangutkar was the conductor of the bus and PW7/Sudip Tamnakhar was the owner of the bus.

The learned trial Court came to the conclusion that the credibility of PW1/Namita Dalvi who was one of the passengers in the said bus was not shaken in the cross-examination. The learned trial Court found that PW2/Shaileja Dalvi and PW3/Grishma Dalvi had improved their versions to some extent but if their depositions were read with that of PW1/Namita, it could be seen that PW2/Shaileja and PW3/Grishma had deposed in line with PW1/Namita to the effect that the accused had overtaken another vehicle at the time of giving a dash to the road divider. The learned trial Court noted the hostility of PW5/Narayan and observed that he had not explained how the accident had occurred and his version was contrary to the version of PW1, PW2 and PW3. The learned trial Court also found that there was no consistency in the evidence of PW5/Narayan who was the conductor and PW7/Sudip who was the owner, and who had claimed having seen the accident. The learned trial Court relied upon the evidence of the first two witnesses who were the passengers in the said bus and convicted and sentenced the accused.

The learned Sessions Judge also found that the evidence of PW1/Namita was unrepeatable and so also that of the mother PW2/Shaileja and sister PW3/Grishma who were injured in the course of the accident, and that the position of the bus post accident could also substantiate their case on the injuries suffered by them. The learned Sessions Judge found that PW8/Head Constable Prakash Parab was equally unshaken that he had drawn the sketch of the scene of offence at the spot itself and the brake marks being visible and duly shown on the sketch. In fact, as stated by PW8/Head Constable Parab there were brake marks to the extent of about 18.30 meters of the rear tyres of the bus. The evidence of PW8/Head Constable Parab also shows that after the impact, the bus had moved to the extent of 17 meters and had tilted on its left side on the road and was facing Mapusa. The learned Sessions Judge, therefore, came to the conclusion that the learned Magistrate had duly considered the evidence of the witnesses and had rightly concluded that the applicant was not rash and negligent but was reckless in driving the mini bus and the said finding was neither illegal nor arbitrary.

Learned Counsel on behalf of the applicant/accused submits that both the Courts below have not considered the material evidence brought by the prosecution, particularly that of PW5/Narayan, the conductor of the bus and PW7/Sudip, the owner of the bus. Learned Counsel has further submitted that there was material difference between the versions given by the first three witnesses of the prosecution as compared to their statements recorded earlier. Learned Counsel further submits that none of the witnesses have stated that the accused was either rash or negligent in driving the said bus. It is also submitted that the panchanama was sought to be proved by a witness who had stood as a panch in twenty five cases, and, therefore his evidence could not have been accepted. Learned Counsel has placed reliance on P.G. Karande v. State of Maharashtra and Ors. 2004 (Supp.) Bom. C.R. 349) wherein it is stated thus:

For the purpose of coming to a conclusion whether a person is driving a vehicle rashly or negligently, number of factors have to be considered. They can be enumerated, for example and the list cannot be taken to be exhaustive.

1). Speed.

2). Indifference towards speed and control of the vehicle,

3). Driving the vehicle in clumsy way,

4). Driving the vehicle by taking dangerous turns,

5). Without bothering about the fate of the persons using the road like him; including other vehicles drivers and pedestrians and the persons sitting by the side of the road, etc. etc.,

I am unable to accept any of the submissions made by the learned Counsel. The evidence of PW1/Namita clearly shows that on the date of accident, she was travelling with her mother PW2/Shaileja and her younger sister PW3/Grishma from Panaji to Mapusa by bus bearing No. GA-01-Z-6579, and that they had left at about 6.00 p.m. and when they reached Guirim on the Mapusa-Panaji Highway, and after crossing the petrol pump, the accused whilst overtaking another vehicle, dashed the same on concrete divider and then tilted on the cleaner''s side. She stated that her mother PW2/Shaileja was sitting behind the driver on the third seat and PW3/Grishma was sitting on the first seat on the cleaner''s side and she was sitting behind her mother. The evidence of PW1/Namita, as rightly noted by the learned trial Court, has gone unchallenged. Moreover, it is also corroborated by the scene of offence panchanama, sketch and the evidence of PW8/Head Constable Parab. The accused has also not given any explanation either in cross-examination of the prosecution witnesses or in his statement recorded u/s 313 of the Code of Criminal Procedure, 1973 as to how the accident took place. It is not expected of the witnesses to say whether the driver of the vehicle was rash or negligent. They are only required to state facts as witnessed by them. Rashness or negligence is to be inferred from proved facts. The very fact that the accused whilst overtaking another vehicle dashed against the road divider on the right side of the road and then proceeded further and fell on its cleaner''s side after a distance of 70 meters clearly reflects the uncontrollable speed at which the accused was driving. The accused has given no explanation. The very fact that the accused was driving at a speed which he could not control whilst overtaking another vehicle itself shows that he was rash in driving his vehicle. If the panch witness could not be relied upon because he stood as a panch witness for more than twenty five times, the panchanama/sketch was duly proved in this case by the evidence of PW8/Head Constable Parab who had reached the scene soon after the accident and had drawn the panchanama and the sketch. Both the Courts below have relied upon the evidence of the first three witnesses, and particularly that of PW1/Namita whose evidence has gone unchallenged and has convicted the accused. In the circumstances, the submissions made by the learned Counsel on behalf of the applicant cannot be accepted.

As regards sentence, learned Counsel submits that the sentence imposed upon the accused is rather severe, in that the passengers were travelling in the said bus had only suffered simple injuries.

The learned Public Prosecutor submits that the accused who was the driver of a commercial vehicle ought to have taken a greater care and responsibility in driving, as the life of several passengers being carried by him was always at stake in case he did not drive the vehicle with care and caution.

The learned trial Court has sentenced the applicant/accused u/s 279 I.P.C. for one month and u/s 337 I.P.C. for two months, and to pay a fine of `1000/-, and in default to undergo Simple Imprisonment for a period of one month. The learned Magistrate has also ordered both the periods of sentence to run concurrently.

Considering the facts of the case, and at present times of ever increasing road accidents, in my view, the sentence imposed by the learned J.M.F.C. and upheld by the learned Sessions Judge does not call for any interference by this Court. Deterrence still remains as one of the aspects to be considered by the Courts whilst imposing appropriate sentence.

In the circumstances, therefore, I find there is no merit in this revision and consequently the same is hereby dismissed. Accused to surrender within thirty days.