-1- IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO.21/2010. Mr. Wilson Gilbert Viegas, S/o. Shri Joseph Viegas, 39 years of age, married Indian National, r/o. H. No. 50, Sirlim, Mazilwada, Salcete, Goa( Through Brother of Petitioner) Mr. Arthur Viegas. …...... Petitioner. Versus State, Through Public Prosecutor, Panaji Goa. …...... Respondent. Mr. C. A. Coutinho, Advocate for the petitioner. Mr. C. A. Ferreira, Public Prosecutor for the respondent. CORAM :- N. A. BRITTO. DATE :13th July, 2010. ORAL JUDGMENT Admit. By this criminal revision petition, the accused challenges his conviction under sections 279, 338 of Indian Penal Code, imposed upon him by the learned JMFC, by judgment and order dated 22.10.2009 in criminal case no.17/S/08/C and affirmed by learned Additional Sessions Judge by judgment/Order dated -2- 15.4.2010. 2. There is no dispute that the accused was driving a bus bearing no.GA-02-T-4555 and was going down the slope in the direction from Ponda to Panaji on 18.12.2007 at about 11.30a.m when the accident took place and as a result thereof PW2 Safal Ghoro who was coming from the side road, on the left of the said Ponda Panaji road riding his activa honda scooter bearing registration no. GA-05- A-2334 was injured on his left shoulder and on his left leg and house of Vishun Jalmi which was also lying on the left hand side of said Ponda Panaji road was damaged. 3. The accused was charged and tried under sections 279, 338 and 427 of Indian Penal Code. Prosecution had examined five witnesses including PW5 HC Salunke. Both the Courts below have convicted and sentenced the accused under sections 279, 338 of Indian Penal Code. 4. The learned JMFC in convicting the accused observed that the accused was driving the bus full of passengers and took the bus towards downward slope without proper brakes and this was -3- precisely what the prosecution was aggrieved about and therefore it was for the accused to show that the said problem of failure of brakes has occurred for the first time when the bus was down the slope which the accused did not even attempt to show. The learned Additional Session Judge observed, referring to the inspection report of the bus/Exh.21 and the evidence of panch witness namely PW1 Gajanan Naik that the lower Court found that the brakes had failed but it was nowhere the case of the accused not even in the form of suggestion that when he left with the bus with the passengers at that time brakes of the bus were in good condition and only immediately before the accident the brakes had failed. 5. Shri C. A. Coutinho, learned counsel appearing on behalf of the petitioner/accused has submitted that evidence which prosecution have produced only suggests failure of brakes of the bus at the time of accident and there was no other evidence to suggest that accused had driven the said bus in a rash or negligent manner. In this regard, learned counsel has referred to the evidence of four witnesses, besides that of investigating officer, examined by the prosecution. Learned counsel have also submitted that the State had not filed any -4- appeal against sentence imposed by the learned Magistrate and therefore learned Additional Sessions Judge could not have reduced the sentence of imprisonment imposed upon the accused and lien thereof give compensation of Rs.1,00,000/- to PW2 Safal Ghoro. 6. On the other hand, Shri Ferreira, learned public prosecutor has submitted that there are concurrent findings of the facts given by the Courts below that the accused drove the bus in rash and negligent manner and therefore, there is no question of any interference in revisional jurisdiction. Learned Public Prosecutor has also submitted referring to the inspection report, that poor play of brakes pedal would not suggest that brakes of the bus has failed at the time of accident. 7. Shri C. A. Coutinho, learned counsel on behalf of the petitioner/accused has placed reliance on the judgment of this Court in case of Krishna Pandurang Pachange( 2004(1) Mh. L. J. 261) wherein referring to Penu alias Pannu Sethi (1983(1) Crimes 876) it was observed that in order to establish criminal liability the facts must be such that the negligence of the accused went beyond a mere -5- matter of compensation and showed such disregard for life and safety of others as to amount to a crime. Reference was also made to the observation of the Apex Court in Jayprakash Laxman Tambe ( 2003 ALL MR (Cri) 2191) wherein it was observed that words “negligence” and rashness” used in section 304A of Indian Penal Code have to be understood in proper sense and in proper spirit. Negligence indicates total negligence on the part of the driver. It means that he was driving the vehicle in such a negligent way which would stamp his driving by only word “negligence”. Rashness indicates that he drives the vehicle in such a way while driving he knows that by such driving he is likely to invite an accident but hopes that such accident may not occur”. 8. As regards revisional jurisdiction this Court observed that it was limited as this Court is not expected to sit as Court of appeal and re-appreciate the evidence but proceeded to observe that if findings were rendered on the basis of no evidence or evidence which even if believed in entirety, cannot prove the guilt of the accused for the offences charged, in such as a case, this Court would be justified in exercising its jurisdiction under section 397 of the Code of -6- Criminal Procedure. 9. In Badri Prasad Tiwari ( 1994 Cri. L. J. 389) it was observed that section 279 Indian Penal Code deals with rash and negligent driving of any vehicle or riding on a public way in a rash and negligent manner so as to endanger human life or likely to cause hurt or injury to any person. In order to constitute an offence under section 279, Indian Penal Code, it must be established that the accused was driving the vehicle on a public way in a rash and negligent manner to endanger human life or to likely cause hurt or injury to any other person. For the purpose of section 279 rash and negligence may be described as criminal rashness or criminal negligence. It must be more than mere carelessness or error of judgment. 10. In my view, both the Courts below have overlooked the principle that in a criminal case the standard of proof required to prove a defence plea is not the same which rests upon the prosecution and in case the accused probabilises his plea, the accused is entitled to the benefit of reasonable doubt. The Court can also consider a plea, if available on basis of evidence, even if not specifically taken by the -7- accused. 11. Reverting to the facts of the case, the facts stated by the prosecution witnesses show a very high probability that the present accident took place on account of failure of brakes. Certainly, it is not a case where a plea of failure of brakes was taken by the accused as an afterthought. No doubt, that the accused while going down the slope from Ponda to Panaji left the road and went on further left and dashed the house of PW4 Vishnu Jalmi and damaged it and in that process, came in contact with scooter of PW2 Safal Ghor injuring him as he was coming from the left side of another road coming from Kundaim village and joining the highway from Ponda to Panaji. 12. PW1 Gajanan Naik was the panch witness who opined that he had tested the brakes pedal and it was found that the brakes had failed because the paddle was going in without minimum effort. In other words, it must have been known, at that point of time, that the accident had taken place because the brakes had failed and that is the reason why PW1 tested the brakes pedal only to find that it was going in without minimum efforts. PW1 Gajanan Naik further opined that -8- it was obvious that accident took place due to brakes failure. It was suggested to him that there was no fault on the part of the bus driver, and he stated that he could not say anything. He also stated that spot of the accident was accident prone zone. Likewise PW2 Safal Ghor stated that he could not tell the distance from where he saw the bus coming for the first time as he did not see the bus. All that he knew that bus came and dashed his scooter a result of which he fell down and became unconscious. PW3 Nilesh Gawde who was selling fish by the side of the road stated that he suddenly heard big sound and saw that the bus had dashed the house and after that he got up and went to see the accident i.e. after hearing the noise. Obviously he could not tell the speed of the bus, when accident had occurred. PW4 Vishnu Jalmi was not present at the time of the accident nor he saw the accident taking place. PW5 Vinod Salunke denied the suggestion that accident had taken place on account of failure of the brakes. 13. The evidence of PW1 Gajanan Naik, panch witness and the inspection report Exh. 21 probabilise the defence of the accused that the said accident took place on account of the brakes failure. There is no other evidence on record to suggest even remotely that the -9- accident had taken place either on account of negligence or rashness on the part of the accused. It is to be noted that accused was going down the slope in Ponda to Panaji direction and in that process went off the road towards the left and dashed against the house of PW4 Vishnu Jalmi. As rightly pointed out by the learned counsel on behalf of the accused, the only evidence produced by the prosecution suggests that the accident took place on account of brakes failure and in absence of any other evidence showing negligence of a criminal degree or rashness against the accused, both the Courts below ought to have given benefit of doubt to the accused and acquit him for the offences for which he was charged and tried. 14. Consequently this writ petition succeeds. The judgment/ orders of the Courts below are hereby set aside and accused is acquitted under sections 279 and 338 of IPC. Bail bonds of the accused, if any, shall stand cancelled. N. A. BRITTO, J. vn*