-1- IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 3 OF 2010 Mr. Zamir Khan, s/o. Majid Khan, 25 years of age, unmarried r/o. H. No. 93, Gaunsa Vaddo, Mapusa, Bardez-Goa. Presently lodged at Sada sub Jail Vasco Goa. …... Applicant V e r s u s STATE Through Public Prosecutor, Having office at Panaji – Goa. .….. Respondent • All registered addresses Mr. Nigel Da Costa Frais , Advocate for the Petitioner. Ms. Winnie Coutinho, Public Prosecutor for the State/Respondent. CORAM: R. M. SAVANT, J. DATE : 10 th February, 2010. ORAL JUDGMENT By this Criminal Revision Application, the Applicant, who is the original Accused, has challenged the Judgment and Order dated 07.01.2010, passed in Criminal Appeal no. 111/2009, by the learned Addl. Sessions Judge, Panaji. By the said Judgment and Order, the learned Addl. Sessions Judge has confirmed the Judgment and Order dated 29.07.2009, passed by the learned J.M.F.C., Mapusa, Goa, convicting the Accused for the offences punishable under Section 279 and 304-A of the I.P.C and Section 134(a) of the Motor Vehicles Act. The accused is sentenced to undergo simple -2- imprisonment for a period of two months for the offence punishable under Section 279 of I.P.C. and further sentenced to undergo simple imprisonment for a period of one year for the offence punishable under Section 304-A and is also sentenced to undergo simple imprisonment for a period of one month for the offence punishable under Section 134(a) and, in default, to pay fine of Rs.500/-. There are concurrent findings of fact recorded by the Courts below. 2. The parties would be referred to as per their status in the Trial Court. 3. The FIR is in respect of the incident that took place on 21.03.2008. It is the prosecution's case that on 21.03.2008, at about 20.00 hours at Bodgini, Mapusa, the accused drove his rickshaw bearing no. GA- 02/6921 from Parra to Mapusa, in a rash and negligent manner and when he reached at Bodgini Temple, at Mapusa, he dashed against the scooter of which the rider was one Sameer Narayan Gad, who was proceeding on the two wheeler bearing no. GA-03/M-4724 in the opposite direction towards Mapusa. On account of the dash, the said Scooter driver sustained grievous injuries and resultantly died in the hospital. 4. The prosecution has examined as many as 14 witnesses in support of its case. The statement of the Accused was recorded under Section 313 of the Cr.P.C. and the Accused denied the charge and claimed to be tried. However, in so far as his driving the vehicle in question was -3- concerned, he answered question no.43 to state that he was driving the rickshaw and proceeding from Mapusa to Calangute. Therefore, the accused admitted that he was at the wheels of the said vehicle when the accident in question took place. The Trial Court on the basis of the evidence that was before it, came to a conclusion that the prosecution has succeeded in proving the rash and negligent driving of the accused and, consequently, causing the death of the said Sameer Gad. The Trial Court, therefore, convicted the accused under Section 279, 304-A of the I.P.C. and Section 134(a) of the Motor Vehicles Act. 5. Aggrieved by the Order dated 29.07.2008, convicting him, the accused filed a Criminal Appeal being Criminal Appeal no. 111/09 under Section 378 of Cr.P.C. The said Criminal Appeal came to be dismissed by the learned Addl. Sessions Judge, by the impugned Judgment and Order dated 07.01.2010 and thereby the conviction by the Trial Court was confirmed. Both the Courts below, therefore, have recorded concurred findings in respect of the rash and negligent driving by the accused on account of which, grievous injuries were caused to the said Sameer Gad, resulting in his death. 6. It is well settled by a catena of Judgments of the Apex Court that the jurisdiction of this Court in revision is severely restricted and that the revisional Court cannot re-appreciate the evidence in the exercise of revisional jurisdiction. It is also well settled that the revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the -4- procedure or there is a manifest error or patent error which has been committed in ignorance of law which has resulted in flagrant miscarriage of justice. The concurrent findings of fact cannot be disturbed in the exercise of revisional jurisdiction unless it is demonstrated that the findings are based on perfunctory appreciation and the process of finding is without well grounded reasoning. In the context of the law laid down by the Apex Court that the facts of the instant case would have to be considered. On the basis of the evidence that is on record, the fact that the accident between the vehicle driven by the accused being auto rickshaw bearing no. GA-02-6921 and Scooter bearing no. GA-03/M-4724 on the Mapusa-Calangute road, near Bodgini temple at Mapusa, at around 20.00 hours on 21.03.2008, is not in dispute. The death of the scooterist is also not in dispute. The death was caused due to cranio cerebral damage as a result of blunt force impact by object or surface, consequent to the vehicular accident, has been proved by the evidence of P.W.11, Dr. Andre Fernandes. In so far as the prosecution story is concerned, namely that the accused was driving the auto rickshaw while proceeding on the Mapusa to Parra road, gave a violent dash to the scooterist Sameer Narayan Gad, who was coming from the opposite direction and as a result the said Sameer Gad had sustained head injuries and was declared dead when shifted to the Asilo Hospital at Mapusa was proved. 7. The prosecution has examined the panch witnesses Pw.1 as well as P.w.2 for proving the panchanama as well as the sketch which was attached to the panchanama showing the position of the vehicles viz a viz the -5- road in question, Both the Courts below have recorded a finding that the evidence of said Pw.1 and Pw.2 was trustworthy and, therefore, the manner in which the accident had taken place was proved. The next witness examined by the prosecution was Cw.3 one Nilesh Salgaonkar, who is an eye witness to the said accident. The said Nilesh Salgaonkar has deposed that he has witnessed the accident and has stated that the goods auto rickshaw which was coming from Mapusa side and proceeding towards Calangute, overtook his vehicle and thereafter another vehicle in fast speed and in that process, gave dash to Vespa scooter which was coming in opposite direction i.e. going from Parra to Mapusa. He has also stated in his cross examination that just prior to the accident, it had rained slightly. Both the Courts below, therefore, considering the said evidence of Pw.3, viz a viz the width of the road has disclosed in the sketch attached to the panchanama, have recorded a finding that the position of the vehicles as per the sketch prepared by the prosecution and the spot of impact, stands proved. The prosecution has also led evidence of Pw.13, who is the Motor Vehicle Inspector and who has examined the vehicles and reported the damages as mentioned in his report at exhibit 33 and 34. Both the Courts below have recorded a finding that the said evidence shows that the auto rickshaw was in a process of moving towards the right hand side of the road due to which its left hand side front portion was exposed to the vehicle coming from other side and, therefore, the impact on the auto rickshaw was on the left hand side and in so far as the scooter was concerned, the impact was so severe that the front panel from both the sides, front mudguard and front head light of Vespa scooter were completely -6- damaged. Both the Courts below taking into consideration the fact that the accident is not in dispute as also the fact that the accused was on the wheels of the auto rickshaw, so also the cause of death held that the said aspects stand proved. Both the Courts below have held that the circumstances brought on record through the prosecution witnesses, suggests only one aspect i.e. the rash and negligence on the part of the accused who was trying to overtake other vehicles and in that process took his auto rickshaw completely on the wrong side of the road and blocked the way of the vehicles coming from opposite direction and further gave violent dash to the scooter driven by the deceased. 8. I have heard the learned Counsel for the Appellant Shri Nigel Da Costa Frais and learned Public Prosecutor Ms. Coutinho. The learned Counsel for the Appellant/Accused submitted that the evidence on record does not prove the rashness and negligence of the accused in driving the vehicle, more so, the evidence of the eye witness-Pw.3. The learned Counsel further submitted that the evidence of Pw.3 could not have been taken into consideration since he deposed that the auto rickshaw overtook him from the left hand side of the road. The learned Counsel for the Appellant has submitted that the rash and negligent driving which is a pre-requisite for the offence punishable under Section 304-A, is not made out merely because there was evidence that it was being driven at a high speed. The learned Counsel for the Appellant for the said purpose relied upon the Judgment of the Apex Court reported in 2008 ALL MR (Cri) 288 (S.C.) in the matter of -7- Prabhakaran vs. State of Kerala and the Judgment of the Apex Court reported in (1998) 8 S.C.C. 493 in the matter of State of Karnataka vs. Satish and the Judgment of a learned Single Judge of this Court reported in 2003 ALL MR (Cri) 2191 in the matter of Jayprakash Laxman Tambe vs. State of Maharashtra. The Apex Court has held that the vehicle driven at a high speed does not bespeak of either negligence or rashness by itself and it was for the prosecution to bring on record material established as to what is meant by high speed in the facts and circumstances of the case and in the absence of any material on record, no presumption of rashness or negligence could be drawn by invoking the maxim “res ipsa loquitur” there being no evidence on the record of rashness and negligence in driving the vehicle in question. The learned Counsel lastly relied upon the Judgment of the Apex Court reported in AIR 1973 S.C. 165, in the matter of Nageshwar Sh. Krishna Ghobe vs. State of Maharashtra. The Apex Court has observed in the said Judgment that in cases of road accident, the Courts have to base their findings on the basis of the material on record and not on the basis of assumptions not fully supportable by the material on record. In the said case, the Apex Court had examined the evidence itself and had observed as regards the perfunctory investigation carried out by the police as also the fact that no attempt was made by the prosecution to ascertain the probable speed of the bus by measuring the tyre marks on the road. Though in the said case, according to the witnesses, the brakes were jammed and there was a screaming sound as the bus came to a halt. The Apex Court was of the view that the examination of the marks of the wheels of the road could have been -8- very useful in appreciating further evidence. 9. On the other hand, on behalf of the prosecution, the learned Public Prosecutor Ms. Coutinho, submitted that in view of the concurrent findings recorded by the Courts below, this Court should not interfere with the conviction in its revisional jurisdiction. The learned Public Prosecutor relied upon the Judgment of the Apex Court in 2008AIR SCW 5142 in the matter of Kuldeep Singh vs. State of Himachal Pradesh on the aspect of the meaning of the words negligence and recklessness. This is in context of Section 304-A of the I.P.C. , wherein negligence and rashness are the essential elements. The Apex Court in the said Judgment has considered as to what constitutes negligence and recklessness by referring to Halsbury's Laws of England the restatement of the law of Torts from Kenny's Outlines of Criminal Law and the English Authorities from all England Reports. Negligence, as mentioned in the Halsbury's law of England, is the failure to exercise the care if the circumstances demand. Recklessness, as can be seen from the said report, is that act which the doer before doing it either fails to give any thought to the possibility of there being any such risk or, having recognised that there was any such risk, he nevertheless goes on to do it. 10. In the instant case, as mentioned above, both the Courts below on the basis of the evidence that was on record have come to a conclusion that the accident was caused on account of the rash and negligent driving of the accused. Though there are no photographs on record, the evidence which -9- is on record, being such that the prosecution has proved the accident as also the cause of death of the said Sameer Gad. The circumstances which have been brought on record by the prosecution through its witnesses, as held by both the Courts below unmistakably proved the rash and negligent driving of the accused who was trying to overtake other vehicles and in that process took his auto rickshaw completely on the wrong side of the road, thereby giving a dash to the scooterist coming from the opposite direction resulting in a serious injury to the scooter rider, resulting in his death. Ingrained in the evidence of eye witness-Pw.3, is the fact that the accused was driving the vehicle in a rash and negligent manner. The said aspect would also have to be considered in the light of the fact that it had rained just prior to the accident and, therefore, it was all the more necessary for the accused to have been careful in driving the vehicle. Therefore, there is no merit in the submission of the learned Counsel for the Appellant that merely because the vehicle was being driven at a high speed, the rash and negligent driving is not made out. Though it is well settled that high speed by itself would not amount to rash and negligent driving. The fact that the vehicle was driven at a fast speed, coupled with the material brought on record through the witnesses of the prosecution, in my view, proves the case of the prosecution that the vehicle was being driven in a rash and negligent manner. In so far as the submission of the learned Counsel for the Appellant that since it is the statement of Pw.3 the vehicle of the Pw.3 over took him from the left hand side of the road and therefore no credence could be given to his evidence, in my view, is misconceived. The said aspect has also been dealt with by the lower -10- Appellate Court. 11. Considering the restricted revisional jurisdiction which this Court can exercise, in my view, the findings recorded by the Courts below cannot be said to be perverse on the basis of the material which is on record. The learned Counsel for the Petitioner submitted that the Petitioner, who is a first time offender and who is the only breadwinner and has six sisters, should be given the benefit of Section 4 of the Probation of Offender's Act, 1958. The learned Counsel for the Appellant relied upon the Judgment of the Apex Court reported in 1995 Supp (2) S.C.C. 385 in the matter of A. P. Raju vs. State of Orissa. The facts of the said case were that the accident in question had taken place 15 years prior to the Apex Court hearing the matter and the Appellant in the said case was on bail for more than eight years. It is in that context that the benefit of Section 4 of the Probation of Offender's Act, 1958, was granted by the Apex Court. 12. On the other hand, the learned Public Prosecutor relied upon the Judgment of the Apex Court reported in (2000) 5 S.C.C. 82 in the matter of Dalbir Singh vs. State of Haryana. Para 13 of the said Judgment is material and is reproduced herein below : “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 PO Act. While considering the quantum of -11- 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 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.” 13. Hence, considering the facts of the instant case, the Appellant cannot be granted the benefit of the Probation of Offender's Act, 1958. 11.02.2010 14. The Applicant though directed to remain present in the Court on -12- the dates when the above Revision Application was to be heard, has not remained present. Learned Counsel for the Applicant, Shri Frais, has therefore sought time up to today. Shri Frais, on instructions, states that the Applicant is unwell and he is, therefore, not in a position to remain present. The Applicant therefore, to surrender himself before the Trial Court by 18.02.2010 by 2.30 p.m. In the event, he fails to surrender before the Trial Court, the Trial Court would proceed against him in accordance with law to secure his presence for serving the sentence. 15. There is, therefore, no merit in the Revision Application, which is accordingly dismissed. R. M. SAVANT, J. arp/*