1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 40 OF 2010 Mr. Basavrai Mokashi s/o. Sidingappa Mokashi, Aged 37 years, married, R/o. H. No. 962, Salvador de Mundo, Bardez, Goa. ... Applicant versus State Through Public Prosecutor. ... Respondent Shri Rohit Bras De Sa, Advocate for the Applicant/Accused. Shri C. A. Ferreira, Public Prosecutor for the Respondent/Complainant. CORAM : N. A. BRITTO, J. DATE : 5TH OCTOBER, 2010. ORAL ORDER Heard Shri Rohit Bras De Sa, learned Counsel on behalf of the Applicant/Accused and Shri C. A. Ferreira, learned Public Prosecutor on behalf of the Respondent/Complainant. 2. In this revision application, the applicant who is an accused has assailed the Judgment dated 3-9-2010 of the learned Additional Sessions 2 Judge, Mapusa, upholding the Judgment dated 27-1-2010 of the learned J.M.F.C., Mapusa by which the applicant/accused has been convicted and sentenced under Sections 279 and 338 I.P.C. 3. There is no dispute that the accident took place between Swaraj Mazda bearing No.GA-03-T-3711 driven by the accused, and Bajaj Chetak Scooter bearing No.GA-01-A-3163 driven by PW6/Vinod Phadte. Both of them were travelling from east-west direction on B. B. Borkar road i.e. from Torda to Porvorim. The accident took place where there is a Biryani Palace and the road is about 5.90 meters in width. 4. The case of the prosecution was that on 22-7-2008 at about 11.45 hours the accused/driver drove the vehicle in rash and negligent manner and came from the back of the said scooter and gave a dash to the said scooter driven by the said Phadte causing grievous injuries to him. 5. The case of the accused is that the said Phadte came driving from a side road and it is he who is the cause of the accident. 6. Prosecution examined in all seven witnesses including the Investigating Officer. The panchanama and the sketch were produced through PW2/Dinesh. The said panchanama and the sketch show that the Swaraj 3 Mazda driven by the accused was on the extreme right hand side of the road while the scooter was at a distance of about 3 meters or so from the left hand side of the road. The dragging marks are shown to the extent of 18.30 meters. The sketch also shows that there was a distance of about 3.40 meters from the drag marks and right edge of the road. The prosecution has examined the said PW6/Vinod Phadte and PW1/Gauri Gaonkar as eye witnesses to the accident. 7. The case of the accused that PW6/Vinod Phadte entered the said road from a side road is not supported by any of the witnesses and on the contrary stands falsified by the panchanama and the sketch. 8. The learned Additional Sessions Judge has observed that the accused did not dispute occurrence of the accident. The learned Additional Sessions Judge pointing out to the discrepancy as regards the distance mentioned by PW1/Gauri Gaonkar and PW6/Vinod Phadte observed that the said discrepancy could not be looked upon to say that PW1/Gauri Gaonkar had not witnessed the accident, and further observed that the learned trial Judge had observed that to prove rash and negligent driving it was not necessary that the injured should have been dragged to a particular distance. The distance to which the Bajaj Chetak Scooter was dragged has been shown on the sketch as 18.3 meters. This distance has been referred to by PW1/Gauri Gaonkar as 100 meters and by PW6/Vinod Phadte as 20 meters. It is quite possible that 4 PW1/Gauri Gaonkar had no notion of distance and she was exaggerating, but that is no ground to discard her evidence. Learned Counsel on behalf of the accused submits that PW1/Gauri Gaonkar had stated that it is the front left hand side of the pick-up which had dashed against the right hand side of the scooter while PW6/Vinod Phadte had stated that the Swaraj Mazda had given a dash from the back and dragged him to a distance of about 20 meters. 9. Pointing out to the accident report and the evidence of PW4/Prakash Ambre, learned Counsel points out that there were damages to the rear left hand side mudguard of the Swaraj Mazda, and, therefore learned Counsel contends that the dash could not have been given as stated by PW1/Gauri Gaonkar. Learned Counsel further submits that the distance as mentioned by her is contrary to the distance given by PW6/Vinod Phadte. Learned Counsel further submits that her statement that she took the injured to the hospital is contrary to the evidence of PW7/PSI Jadhav. 10. Learned Counsel on behalf of the accused has placed reliance on the decisions of State of Karnataka v. Satish((1998) 8 SCC 493) and Madhukar Gaurishankar Swami v. State of Maharashtra(2007(1) Mh.L.J. (Cri.) 679). I have perused the said decisions which on facts are not at all applicable to the case at hand. In the first case, the truck had turned turtle. The Apex Court observed that the Courts had not recorded any finding as regards 5 rashness or negligence of the accused and had merely convicted the accused on the principle of res ipsa loquitur. In the second case, the deceased lady had dashed on the applicant's vehicle, whilst crossing the road. 11. Both the witnesses namely PW1/Gauri Gaonkar and PW6/Vinod Phadte have categoriclly stated that the truck dashed the scooter. PW1/Gauri Gaonkar was outside her shop and there was a particular reason for her to falsely implicate the accused. She might have not seen which particular portion of the truck had dashed, but that was no reason to discard her evidence. She might have also improved her version to some extent. PW6/Vinod Phadte categorically stated that it is the accused who came from the back and gave a dash on the scooter which threw him down and dragged him. The case of the accused was that the scooter came from the side road. I have already observed that this stand of the accused is not supported by any evidence on record and is otherwise falsified by the panchanama and the sketch. On the contrary the evidence of PW6/Vinod Phadte is corroborated by the panchanama and the sketch. 12. With the evidence of PW6/Vinod Phadte and PW1/Gauri Gaonkar, the prosecution had abundantly proved that it is the accused who came from behind of the scooter driven by him and gave a dash, and that has 6 necessarily to be construed as a rash act on the part of the accused, and, therefore the conviction of the accused cannot be faulted. 13. On the point of sentence, learned Counsel on behalf of the accused submits that the accused took the injured to the hospital, and, therefore leniency ought to be shown to him. That appears to have been his duty, otherwise he would have been prosecuted. That is not a mitigating circumstance in this age of ever increasing road accidents. No case is made out to decrease the sentence imposed by the Courts below. 14. Revision Application is dismissed. Bail Bonds, if any, stand cancelled. Accused to surrender before the trial Court. N. A. BRITTO, J. RD