1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 77 OF 2006 State Through P.I. attached to Quepem Police Station, Quepem-Goa. .... Appellant V/s Shri Agnel D.B. Costa, S/o Milagres, Driver, R/o. H.No. 84/1, Chinchwada, Dando, Sanguem-Goa. .... Respondent Mr. C.A. Ferreira, Public Prosecutor for the Appellant. Mr. T. George John, Advocate under legal aid scheme for the Respondent. CORAM : N.A. BRITTO, J. DATE : 25th AUGUST, 2008 ORAL JUDGEMENT : Heard Shri C.A. Ferreira, the learned Counsel on behalf of the appellant and Shri T.George John, the learned Counsel on behalf of the accused. The respondent i.e. the accused herein was charged and tried under Sections 279, 337, 338 and 304 (A) IPC and Section 134 (a) and (b) of MV Act, 1988 but by judgment dated 30/05/2006 has been acquitted for the said offences. 2. The prosecution had examined as many as 22 witnesses amongst whom there were two eye witnesses to the accident. The statement under Section 313 of the Code was recorded by the learned Magistrate (JMFC) but 2 it is an admitted position that the incriminating circumstances appearing in the evidence of PW2 to 6 have not been put to the accused seeking his explanation, and, in fact it has been submitted by the learned Counsel on behalf of the accused that unless those circumstances were put to the accused and his explanation was called for, the same could not be taken as evidence against the accused, and, as far as this aspect is concerned, it is well settled law that unless the circumstances appearing against the accused in the evidence of the prosecution are put to him, when his statement is recorded under Section 313 of the Code, the same cannot be used as evidence against him. However, it is most surprising that the learned Magistrate has not at all given any reason, whether good or bad, as to why he had not accepted the evidence of the said two eye witnesses or for that matter the evidence of other witnesses. Without assessing the evidence produced and after reproducing certain statements made by them here and there, learned Magistrate has come to the conclusion that the prosecution has miserably failed to prove that the accused drove the bus in a rash and negligent manner. 3. Shri Ferreira, the learned Public Prosecutor on behalf of the appellant has placed reliance on the cases of Thakur Singh V/s. State of Punjab (2003 (9) SCC 208), B. Nagabhushanam V/s. State of Karnataka (2008 (5) SCC 730) and State V/s. Mohandas S. Gawade (2006 B.C.I. 77) and has submitted that the very fact that the accused had dashed a tree existing on the 3 left side of the road it could be presumed by invoking the doctrine of res ipsa loquitur that the accused was rash and negligent in driving the said bus. Learned Public Prosecutor has further submitted that the approach of the learned trial Court was most casual and unmindful of the fact that in recent times the cases involving road accidents have been looked at seriously. In this context, learned Counsel has particularly referred to the observations of the Apex Court in the said case of Thakur Singh V/s. State of Punjab (supra) wherein the Apex Court has stated thus: “Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act. 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. 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 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 the vehicle he cannot escape from a 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.” The Apex Court in the case of B. Nagabhushanam V/s. State of 4 Karnataka (supra) at para 14 has stated thus: “We are of the opinion that six months' simple imprisonment and a direction to the appellant to pay a fine of Rs. 1000/- for commission of the offence punishable under Section 304-A and simple imprisonment for one month and to pay a fine of Rs. 500/- for the offence punishable under Section 279 of the Penal Code cannot be said to be shocking.” 4. Considering that the case involved the death of a cyclist and injuries to several other persons, it was expected of the learned trial Court to have made some effort to marshal the evidence produced and come to its own conclusion. That has certainly not been done in this case. 5. In the case of State of Himachal Pradesh V/s. Uttam Kumar & Ors. (2007 (12) SCC 348), the Apex Court was pleased to remand the case on account of erroneous appreciation of evidence. In the case of V. Srinivasa Reddy V/s. State of A.P. (1998 (9) SCC 331), the Hon'ble Supreme Court was pleased to remand the case, where evidence of material witnesses was considered in a perfunctory manner. In this case there has been no proper recording of the statement of the accused as well as non-appreciation of evidence produced and, therefore, in my opinion this is a fit case for remand to enable the learned Magistrate to record afresh the statement under Section 313 of the Code and thereafter consider the evidence produced by the prosecution in its proper perspective. 5 6. Consequently, the appeal is partly allowed and the impugned judgment/order is hereby set aside. The accused is directed to appear before the learned trial Court on 18/09/2008 at 10 a.m. and thereafter the learned Magistrate is hereby directed to record the statement of the accused afresh, hear the parties and to dispose of the case in accordance with law as expeditiously as possible and, in any event, within a period of two months. N.A. BRITTO, J. NH/-