1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 29 OF 2010 Mr. Luis Cardozo, Son of late Caetano Cardozo, Major of age, Presently in Sada Jail Vasco. r/o.1421, Gotnibhat, Curtorim, Salcete, Goa. Through his next friend, Mr. Pedro Fernandes, son of Antonio Fernandes, Major of age, r/o. Curtorim, Salcete, Goa. …. Applicant V/s State through the Public Prosecutor, High Court of Bombay at Goa. …. Respondent Mr. Vivek Rodrigues, Advocate for the Applicant. Mr. C.A. Ferreira, Public Prosecutor for the Respondent. CORAM : N.A. BRITTO, J. DATE : 25th AUGUST, 2010 JUDGMENT : This revision is directed against the judgment dated 23/07/2010 of the learned additional Sessions Judge, Margao, upholding the judgment dated 5/05/2010 of the learned Magistrate (JMFC), Margao by which the petitioner-accused has been convicted and sentenced under Sections 279,304-A IPC. 2. The petitioner-accused was charged and tried with the allegation that on 10/04/2006 at about 16.30 hours, the accused drove Maruti van having number GA 08-A-7618 while proceeding from Corjem to Cutorim in a rash and negligent manner and when reached near Carmel 2 Chapel at Curtorim dashed the same on a cyclist who suffered injuries and succumbed to the same. 3. Prosecution had examined ten witnesses in support of the charge. 4. The panchanama and the sketch of the scene of offence was prepared by PW10/ASI Kakankar and was proved through PW1/Pedro Fernandes. The other pancha, PW4/Simon Barreto turned hostile to the case of the prosecution. PW1/Pedro Fernandes had identified his signatures on the panchanama as well as on the sketch and had stated that he had waited at the spot for about 5 minutes. Although the learned Magistrate observed that the panchanama and the sketch at Exhibit 18, Colly were not proved, the facts stated by PW1/Pedro Fernandes were not shown to be contrary to what was recorded on the said panchanama and the sketch. True, in his cross-examination, he has stated that the panchanama was not written when he signed the paper, but at the same time he had stated that what was written on the panchanama was written in Marathi which means that he knew that the panchanama was written in Marathi language. He has specifically denied the suggestion that he has not acted as a pancha witness. The evidence of PW10/ASI Kankankar r/w the evidence of PW1/Pedro Fernandes, the pancha and the the sketch, sufficiently, proves that the accident had taken place at the T-junction, as the van came from the direction of Corjem and hit 3 against a cyclist exactly opposite near the compound wall, even before it could take a turn to the right on its way to Curtorim. The entire controversy is pitched on the evidence of PW3/Savio D'Souza on whom both the Courts below have placed reliance and accepted his evidence to prove the guilt of the accused, particularly, to say that it is the accused who was driving the said van. 5. Shri Rodrigues, learned Counsel appearing on behalf of the accused submits that the appreciation of evidence by both the Courts below is perverse. Counsel further submits that no question was put to the accused in his statement recorded under Section 313 Cr.P.C. that the accused was driving in a rash or negligent manner. Learned Counsel referring to the evidence of PW3/Savio D'Souza has submitted that he had not seen the van prior to the accident; that he had reached the spot of accident after the accident had taken place; and he had not seen any person in the van; and, therefore, his statement that the accused was the driver of the van, who was shouting, could not have been accepted by the Courts below. Learned Public Prosecutor, on the other hand, has submitted, that both the Courts below have placed reliance on the evidence of PW3/Savio D'Souza and there is no reason assigned as to why he should have deposed against the accused. Learned Public Prosecutor submits that the version of PW3/Savio D'Souza is consistent, natural, unshaken and reliable and his conduct is but natural. Learned 4 Public Prosecutor further submits that the accused has not explained as to how the accident took place. 6. From the evidence of PW1/Pedro Fernandes, as well as, PW3/Savio D'Souza it can be seen that the van was driven straight, instead of turning to the right, as a result Rex D'Souza about 12 years of age, who was riding his cycle, was sandwiched in between the wall and the said van driven by the accused. It is not necessary that the accused ought to have been asked the question that he was driving rashly or negligently, but his rashness or negligence can certainly could be inferred from the facts of the case, which were otherwise put to the accused. The Apex Court in the case of Jacob Mathew V/s. State of Punjab & Anr. (2005 AIR 3180) has held that the principle of res ipsa loquitur has limited application in trial on a charge of criminal negligence, though it cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. The accused could have explained as to how the accident had taken place but has chosen not to. The PW3/Savio D'Souza had clearly stated that he was going to a shop and that he had heard the driver shouting and when he went to see there was a boy pressed between the van and compound wall. He has categorically stated that van was driven by the accused and the accused was a driver who was shouting. He has also given the number of the van. When asked of the age of the boy he stated that he 5 was 12 years of age. He also stated that there was a high school near Chapel, Curtorim and said compound wall was of that school. He had fairly admitted that he did not know from which side the Maruti van came. Here he also stated that he had not seen the van prior to the accident. There is no reason why PW3/Savio D'Souza who is uneducated person, as stated by him, should have deposed in favour of the prosecution and against the accused. He has denied the suggestion that the said boy was related to him. It is quite probable that PW3/Savio D'Souza had seen the accused after the impact coming out from the van and shouting and, for that reason, he has consistently maintained that the van was driven by the accused. His evidence appears to be truthful and convincing. Both the Courts below have relied on his evidence and I see no reason not to rely on his evidence as well. Facts stated by him were put to the accused in the form of question no.9, which the accused denied. The death of Rex D'Souza was proved by the evidence of PW7/ Dr. Poojari. 7. Considering the facts of the case, therefore, in my view, the conviction and sentence imposed on the accused calls for no interference. There is no merit in this revision application and, therefore, the same is hereby dismissed. N.A. BRITTO, J. NH/-