1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 34 OF 2009 Shri Anand Velip, s/o Shaba Velip, age 25 years, r/o H. No.220, Khola, Canacona, Goa. ... Applicant versus State (Through Cuncolim Police Station) ... Respondent Shri Nitin Sardessai, Advocate for the Applicant. Shri C. A. Ferreira, Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE : 20TH AUGUST, 2009. ORAL ORDER This revision application is directed against Judgment dated 22-6-2009 of the learned Additional Sessions Judge, Margao, upholding Judgment dated 20-12-1008 of the learned J.M.F.C., Canacona, convicting and sentencing the accused under Sections 279, 337 and 338, I.P.C. 2 2. The Applicant/Accused was charged and tried with the allegation that on 28-4-2007 at Barcem, the Applicant drove the bus bearing No.GA-01-T-4354 in a rash and negligent manner and thereby caused injuries to about 34 passengers travelling in the said bus, two of whom suffered grievous injuries. 3. In the trial of the accused, prosecution examined 22 witnesses out of which, 19 were passengers travelling in the said bus. In convicting the accused, the learned trial Court noted that it was the case of the prosecution that the accused had driven over a heap of granite stones, and thereafter the bus had gone off the road and had turned turtle and it was not the case of the accused that the road was busy with oncoming vehicles. The learned trial Court took note of the fact that sufficient width of the road of about 3.5 meters was available to the accused and moreover there was another 1.30 meters on the right side, and thus the accused had a road width of 4.30 to 4.50 meters to drive his bus, and inspite of that the accused went off the road over the heap of granite stones and turned turtle into a stream, and the accused had not explained as to why the accused had to go to the extreme left and over the said heap of granite lying outside the tar road, and this showed that the accused was not vigilant or attentive, and thereby convicted him under Sections 229, 337 and 338 I.P.C. 3 4. The learned first appellate Court noted that the road at the scene of accident had clear visibility and consequently the principle of res ipsa loquitur could be taken aid of. The learned first appellate Court also noted that the accident was as a result of rash and negligent driving on the part of the accused. As regards the sentence, the learned first appellate Court noted that while imposing the sentence the learned trial Court had considered the circumstances of driving of the accused and callous approach of the accused in not considering the safety of the passengers and his attempt to escape from the scene of accident, and as such there was no scope for interference in the discretion exercised by the trial Court while sentencing the accused. 5. Shri Nitin Sardessai, the learned Counsel on behalf of the Applicant, submits that the learned trial Court has discussed the case against the accused only under Section 279 I.P.C., and there is no discussion as regards Section 337 or Section 338 I.P.C. Learned Counsel further submits that the prosecution had failed to prove that any of the passengers travelling in the bus driven by the accused, had suffered grievous injuries. Learned Counsel further submits that the learned trial Court proceeded to award sentence of six months on the assumption that the prosecution had proved an offence under Section 338 I.P.C. which is otherwise punishable with imprisonment upto two years, and, therefore the punishment imposed against the Applicant is too severe. Learned Counsel 4 further submits that the evidence of PW11/Ramesh Velip shows that there was an oncoming vehicle, and on account of that the accident had taken place. Learned Counsel submits that the sentence imposed is grossly disproportionate, and in any event, this was the case where the accused could have been extended the benefit of probation, and in this regard has placed reliance on the case of Paul George v. State of NCT of Delhi((2008) 4 SCC 185). Learned Counsel has further submitted that even in case the benefit of probation cannot be extended to the accused then the facts of the case are sufficient to deal with the accused with a sentence much lesser than the one imposed by the learned trial Court, and affirmed by the learned first appellate Court. 6. The volume of evidence produced by the prosecution shows that the bus of the accused was overcrowded and was driven in a fast speed and had overtaken a number of vehicles before it reached the place where the accident took place, and thereafter went off the road and fell into a water flowing nullah, as stated by PW22/Andrian Menezes, A.S.I. of Cuncolim Police Station who investigated the case. The accused gave no explanation whatsoever as how the accident was caused. Therefore, this was a fit case to invoke the principle of res ipsa loquitur and hold the accused guilty under Section 279 I.P.C,. as was done by the Apex Court in Thakur Singh v. State of Punjab(2004 SCC(Cri) 1183). 5 7. The prosecution had examined PW21/Dr. Poonam Verenkar who had examined the passengers after the accident and passengers at serial nos.25 and 34 of the medical report submitted by him were stated to have suffered grievous injuries and one of them was examined as PW7/Ravi Gaonkar, and who had clearly stated in his evidence, that after the accident he was stuck in the bus and did not get up and was removed by other persons. He had stated that all the passengers had sustained injuries and there was not even a suggestion that he had not suffered any injury. True, he did not specifically state that he had suffered a grievous injury but the evidence of PW21/Dr. Verenkar was clear on that point, and who had confirmed that the said PW7/Ravi Gaonkar had suffered a grievous injury, and, therefore, in my view, the contention of learned Counsel that prosecution had led no evidence that any of the passengers had suffered grievous injuries needs to be rejected. 8. True, PW11/Ramesh Velip did state that on seeing a truck the accused turned the bus and could not take control of the same and the bus got turtled and fell into the river. There was no cross-examination to this witness, and even that stray statement is accepted, it does not help the accused at all. It only and clearly shows that the accused was driving the bus at a speed that he was unable to control his own bus, and this again shows that he was negligent. In fact, PW6/Paik Gaonkar stated that no one 6 came from opposite direction and he was not cross-examined, and for that reason went off the road, and fell into the said water flowing nullah. 9. Considering the evidence produced by the prosecution, the conviction of the accused under Sections 279, 337 and 338 could not be faulted. 10. The case of Paul George v. State of NCT of Delhi (supra) stood on its own facts and one of the considerations which weighed with the Hon'ble Supreme Court is that on the same charge the accused was dismissed from service. That is not the case in hand. As already stated, the bus of the accused was overcrowded and the accused as stated by the learned trial Court jumped from the bus and saved himself without a scratch of an injury, and putting the passengers in peril, although no passenger died in the accident. 11. The observations of the Apex Court in the case of Dalbit Singh v. State of Haryana(AIR 2000 SC 1677) are relevant to this case as well. In the case of State v. Rajesh Pagi(2005(2) Goa L.R. 160) this Court had taken note of number of deaths which have been increasing on the roads, year after year, due to the rash and negligent driving of the vehicles, and it was further stated that although there were no golden scales to measure punishment to be given in a given case nevertheless it was well 7 said that punishment to be given should be adequate to the crime committed by the accused. In other words, it should be proportionate to the crime committed by the accused, and the Court is required not only to look at the accused but also to the interest of the Society at large. In the case of Dalbit Singh v. State of Haryana(supra) the Apex Court took note of the galloping trend in road accidents in the country and the devastating consequences visiting the victims and their families, and noted that one of the considerations while imposing sentence should be deterrence and further observed that a professional driver 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, if he is convicted he would be dealt with leniently by the Court. He must always keep in 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, and 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. 8 12. This is a case where the accused drove an overcrowded bus in a rash and negligent manner, and put in peril the lives of a number of passengers out of which 34 suffered injuries and two of them grievous. The sentence imposed in the circumstances of the case cannot be termed as grossly disproportionate to call for interference from this Court. 13. In the circumstances, I find there is no merit in this revision, and consequently the same is hereby dismissed. 14. On oral request of learned Counsel on behalf of the accused, and upon his instructions, the accused is given time to surrender on or before 12-9-2009 subject to an undertaking being filed in that regard in the course of the day. N. A. BRITTO, J. RD