Surendra Savlo Gaddi vs State of Goa

Mridula R. Bhatkar, J.—This Criminal revision is filed by the petitioner/accused against the order of conviction which was awarded by the learned Judicial Magistrate First Class, Bicholim for the offence punishable under sections 279, 337 and 338 of the Indian Penal Code and subsequently the said judgment was confirmed by the Appellate Court of Sessions Judge. It is the case of the petitioner/accused that on 25/4/2010 at around 16.35 hours at Ghodug Amona, Sanquleim-Goa, the petitioner/accused was driving a mini bus bearing No. GA-05-T-1455 without holding transport licence and was proceeding from Marcel to Sanquelim. On the road, he lost control over the steering wheel, bus turtled and three passengers in the bus were injured. Police thereafter registered offence against him and a criminal case No. 81/S/2010/A was lodged before the JMFC, Bicholim. He pleaded not guilty and thereafter trial progressed. Prosecution examined six witnesses including the three injured persons. The learned JMFC after considering the evidence tendered by the prosecution and the defence adopted by the accused held the petitioner guilty and sentenced him to undergo simple imprisonment for one month and fine of Rs. 1000/-, in default simple imprisonment and one month for the offence u/s 279 of I.P.C. For the offence u/s 337 of I.P.C., he is sentenced to undergo S.I. of one month and to pay fine of Rs. 500/- and in default to undergo S.I. for 15 days and the petitioner was also convicted for the offence u/s 338 of I.P.C., he is sentenced to undergo S.I. for two months and to pay fine of Rs. 1000/- and in default to undergo S.I. of three months. All the sentences to run concurrently. The said order was taken before the Appellate Court. However, the Appellate Court i.e. the Addl. Sessions Judge, Mapusa who by his judgment dated 28/12/2011 dismissed the appeal and confirmed the decision of the learned JMFC. Being aggrieved by the said judgment, this criminal revision application is preferred by the petitioner/accused.

Learned counsel for the petitioner/accused and the learned Public Prosecutor both have taken me to the evidence of all the witnesses and the judgment passed by both the Courts below. The learned counsel for the petitioner has submitted that none of the witnesses of the prosecution has stated in the evidence that the petitioner/accused was driving the vehicle in a rash and negligent manner which is required u/s 279 or 338 of the I.P.C. He argued that if the vehicle is driven in high speed itself, it cannot constitute an offence. In support of his submissions, he relied on and judgment of the Supreme Court in the case of "State of Karnataka Vs. Satish" reported in CDJ Law Journal 1998 SCC (Cr) 1508 and also on another judgment of the Single Judge of the Delhi High Court in the case of " Abdul Subhan Vs. State (NCT of Delhi), He argued that the subordinate Courts ought to have appreciated the defence adopted by the accused that the accident has occurred due to the mechanical defect in the vehicle. The petitioner/accused was driving the vehicle diligently and not in rash or negligent manner. However, due to mechanical failure he lost control over the wheel and accident took place. The Subordinate Courts have erred in rejecting this defence. It was necessary for the prosecution to prove that the vehicle at the relevant time was mechanically sound. Therefore, the judgments given by the Courts below are to be set aside.

Learned Public Prosecutor in reply has entirely relied on the judgment of the Sessions Court and the judgment of the learned JMFC. He submitted that all the eye witnesses have stated in their evidence that the accident took place when the petitioner/accused tried to overtake a Maruti van on the same road which was uneven. He submitted that though driving vehicle in high and excessive speed itself is not an offence. However, considering the prevailing road condition at the time of the accident, the accused should have slowed down his speed and if he would have, then the accident would not have taken place. He submitted that if the accused has taken a defence of mechanical failure then, burden is on him to prove the said fact. The prosecution in the present case by examining three eye witnesses and other witnesses have discharged the burden and established their case beyond reasonable doubt.

Considered the submissions of the learned counsel of both sides so also the evidence tendered by the witnesses and the judgments passed by the Subordinate Courts.

The fact of accident is proved by the prosecution. However, whether the accident has occurred due to rash and negligent driving of the petitioner/accused is a question before the Court. Evidence of all the three eye witnesses PW.2, Mr. Jayesh Bugde, PW.3, Mr. Manoj Parab and PW.4, Mr. Prashant Dessai disclose that they were travelling in the bus at the relevant time, bus turtled as the driver was driving the bus in speed and at the turn he was trying to overtake a Maruti van and in this attempt, the bus turned on the driver''s side. All the witnesses also suffered injuries. The passengers in the vehicle which meets with an accident are the best witnesses on the point of rash and negligent driving of a driver. It is true that high speed itself cannot be attributed to rashness and negligence. However, high speed may amount to rash and negligence driving in certain circumstances. If evidence in respect of those circumstances is brought on record through the prosecution witness, then Court is required to appreciate driving in high speed on the background of those circumstances. In the present case, the witnesses have brought a particular fact on record that the bus turned on one side when the driver was trying to over take a Maruti van and secondly this attempt of overtaking was made at the turn. This shows that the petitioner/accused when driving the vehicle at high speed has also indulged into overtaking the vehicle at a turn. The combination of all these circumstances thus attribute rashness and negligence to the accused. The finding given by the learned Sessions Judge that thus the prosecution has established that the accused was rash and negligent is correct and has proved the case under sections 279, 337 and 338 of the I.P.C. Moreover, through out the trial and in the revision the accused adopted a defence that the road was uneven and therefore due to bad road conditions, he lost control over the vehicle. The learned Sessions Judge while marshalling the evidence of the prosecution and considering the defence of the accused has rightly observed that if at all the road was uneven, then it was obligatory on the part of the accused to be slow and cautious. Considering this, I am inclined to maintain the judgments and orders passed by the Sessions Court. However, the learned counsel for the petitioner at this stage submits that leniency on the point of sentence be shown. Learned counsel submits that the accused has no criminal record and he has given up the job of driver. Therefore, the sentence be reduced. Learned Public Prosecutor per contra submits that the accused at the relevant time was not driving a private car but was a driver of public transport bus and therefore he was having responsibility of the lives of the public. Hence, no leniency be shown. Considered the submissions of the learned counsel for the petitioner/accused and also considered the nature of injury sustained by the eye witnesses. I am inclined to reduce the sentence as follows:

(a) The criminal revision application is partly allowed.

(b) The judgment of conviction of the trial Court and thereby confirming the same by the learned Sessions Judge are hereby maintained.

(c) However, on the point of quantum of sentence, the sentence of fine is maintained.

(d) The sentence given of one month S.I for the offence punishable u/s 279 of I.P.C. and one month for the offence punishable u/s 337 of I.P.C. and two months sentence for the offence punishable u/s 338 of I.P.C. is set aside and cancelled and the sentence whatever is undergone by the petitioner/accused is substituted.