1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 53 OF 2008 Pravin Dhondu Naik Major, Service, R/o. H.No. 841, Colvale, Bardez, Goa, Presently undergoing sentence at sub-jail Sada, Vasco da Gama. .... Petitioner V/s S T A T E, Represented by Public Prosecutor, Panaji-Goa. .... Respondent Mr. Arun Bras De Sa, Advocate for the Petitioner. Ms. W. Coutinho, Public Prosecutor for the Respondent. CORAM : N.A. BRITTO, J. DATE : 17 th APRIL, 2009 . ORAL ORDER: Challenge in this revision is to the judgment dated 9/09/2008 of the learned Additional Sessions Judge, Panaji by which the conviction and sentence imposed upon the petitioner (accused, for short) by the learned JMFC by judgment dated 29/04/2008 has been upheld. The accused is convicted and sentenced under Sections 279,304-A IPC and Section 134 of the MV Act, 1988. 2. The case of the prosecution against the accused was that on 9/05/2006 at about 17.20 hrs., the accused drove tempo bearing no. GA-01-Z-1498 2 while going from Dhuler to Cuchelim, in a rash and negligent manner and on reaching the house of Gajanan Harmalkar dashed against a pedestrian girl by name Sona shankar Shaikh of 7 years of age who succumbed to injuries and the accused ran away from the spot without giving any medical treatment to the victim and without informing the police. 3. In support of the charge, prosecution had examined 6 witnesses and admittedly none of them were eye witnesses who had seen the accident taking place. As far as the death of the deceased is concerned there is no dispute about it, since it appears from the evidence that the body of the deceased was picked up from the scene by a van known as Robert 3 and subsequently the post-mortem examination which was conducted showed that the deceased had died due to crushing damage to the head, brain, abdomen and pelvis in a motor vehicle accident. The learned Magistrate was therefore right in concluding that there was no dispute as to the occurrence of the accident as also the death. 4. The case of the accused was of denial simpliciter. 5. Two contentions have been raised on behalf of the accused by Shri Arun Bras De Sa, the learned Counsel appearing on his behalf. Shri Bras De Sa submits that the prosecution had miserably failed to prove that the accused 3 was driving the said vehicle. He further submits that the evidence of the prosecution was also not sufficient to conclude that the said vehicle was being driven in a rash and negligent manner. Learned Counsel has further submitted that both the Courts below convicted the accused relying on the principle of res ipsa loquitur without there being any prima facie evidence to show that the accused was rash and negligent. Learned Counsel submits that the judgment of the Courts below are based only on assumptions and presumptions without there being any evidence either to connect the accused with driving of the said vehicle or driving the same in a rash and negligent manner. Learned Counsel further submits that the prosecution had not explained as to what the said child was doing on the road and in fact the mother of the said child was not even examined to show under what circumstances the minor child was on the road. Learned Counsel further submits that the evidence of Mahesh Korgaonkar/PW4 to whose wife the said vehicle belonged and who was examined to show that the accused was driving the vehicle was so inconsistent in his statements that he could not have been believed to come to the conclusion that the accused was driving the said vehicle. Learned Counsel has placed reliance on the case of Nageshwar Sh. Krishna Ghobe V/s. State of Maharashtra (AIR 1973 SC 165) and has submitted that only because no explanation came forward from the accused as to how the accident took place, that would not be sufficient to sustain his conviction. Indeed, the Apex Court in the aforesaid decision has 4 stated that; “In cases of road accidents it is ordinarily difficult to find witnesses who are in a position to affirm positively the sequence of vital events during the few moments immediately preceding the actual accident, from which its true cause can be ascertained. When accidents take place on the road, people using the road or who may happen to be in close vicinity would normally be busy in their own pre-occupations and in the normal course their attention would be attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. It is only then that they would look towards the direction of the noise and see what had happened. It is seldom – and it is only a matter of co-incidence - that a person may already be looking in the direction of the accident and may for that reason be in a position to see and later describe the sequence of events in which the accident occurred. At times it may also happen that after casually witnessing the occurrence those persons may feel disinclined to take any further interest in the matter, whatever be the reason for this disinclination. If, however, they do feel interested in going to the spot in their curiosity to know something more, then what they may happen to see there, would lead them to form some opinion or impression as to what in all likelihood must have led to the accident. Evidence of such persons, therefore, requires close scrutiny for finding out what they actually saw and what may be the result of their imaginative inference. Apart from the eye- witnesses, the only person who can be considered to be truly capable of satisfactorily explaining as to the circumstances leading to accidents like the present is the driver himself or in certain circumstances to some extent the person who is injured. In the present case the person who died in the accident is obviously not available for giving evidence. The bhaiya (Harbansing) has also not been produced as a witness. Indeed, failure to produce him in this case has been the principal ground of attack by Shri Pardiwala and he has questioned the bona fides and the fairness of the prosecution as also the trustworthiness of the version given by the other witnesses.” 6. The Apex Court further held that when an accident like the present takes place one naturally expects the driver concerned to explain the 5 circumstances in which he was obliged to take the bus on to the footpath and to strike against the electric pole with such force, thereby killing one human being and injuring several others. The Apex Court further held that merely because the nature of the accident prima facie requires an explanation from the driver, would not be sufficient to sustain his conviction, if the truth of his explanation, which is not liable to rejection outright, could have been appropriately judged if the evidence left out by the prosecution had been produced. The Apex Court with reference to the facts of that case had found that the material evidence was not been collected by the investigating agency for reasons which were wholly unconvincing and the evidence actually produced, left a serious lacuna in bringing the guilt of the accused. It is in such circumstances that the Court held that although prima facie an explanation from the accused was required absence of it would not be sufficient to sustain his conviction. 7. In the case of Thakur Singh V/s. State of Punjab (2004 SCC (Cri.) 1183) there was no dispute that the accused was driving the vehicle and the vehicle driven by him over the bridge had gone and fallen into the canal and it is in such a situation that the doctrine of res ipsa loquitur was applied and the burden was placed on the accused who was in control of the automobile to establish that the accident did not happen on account of his negligence and as the accused did not succeed in showing that the accident had taken place 6 due to the causes other than the negligence on his part that the conviction of the accused was maintained. 8. As far as the facts of the present case go, the prosecution was certainly required to prove firstly that it is the accused who was driving the vehicle concerned and, the same was being driven rashly and negligently. As already stated, the prosecution examined the said Korgaonkar/PW4 to prove that the vehicle was being driven by the accused and he was cross-examined by the prosecution. The learned trial Court did observe that the witnesses had made inconsistent statement to protect the accused. The said Korgaonkar/PW4 had stated that he had four drivers and the accused was one of them. At one stage he had undertaken to produce the register showing the movements of the vehicles and the names of the drivers. On the next occasion, he came up with the explanation that the registers were not available. He had denied the suggestion that on 9/05/2006 he had given the keys of the vehicle to the accused. In cross-examination he had admitted that he had not seen the accused driving the vehicle and had further stated that he did not know who was driving the vehicle on that particular day. If that be the case, there was no question of the trial Court coming to the conclusion that the accused was driving the vehicle, inspite of inconsistent statements having been made by him. There was no onus upon the accused at all to show, by producing evidence, that someone else was driving the vehicle at relevant time as 7 observed by the learned trial Court. One of the inconsistent statements could not have been accepted to come to the conclusion that the accused was driving the said vehicle as sought to be done by the learned JMFC. A person who makes inconsistent statements is unworthy of being given any evidence. 9. Be that as it may, all that the prosecution had proved through the evidence of the pancha witness Shri Hazhrat Ali Mulla/PW1 and Investigating Officer, Shri Prakash Naik/PW5 was that the pickup was found on the road from Dhuler to Cuchelim, in somewhat oblique position, almost on the middle of the road with a space of 80 cms. on the left and 130 cms. on the right and behind the tempo at a distance of about 2.30 mts. there were blood stains which were at a distance of about 95 cms. from the right edge of the tar road and from the said spot it could be presumed that the impact on the deceased might have taken place, at that spot. As rightly pointed out on behalf of the accused, the parents nor the attendant of the said 7 years old deceased girl have been examined and one does not know under what circumstances the said minor girl came on the said road to come in contact with the said vehicle and this was certainly for the prosecution to have explained which the prosecution has miserably failed to do, either by examining any eye witnesses or either of the parents of the deceased girl. One cannot rule out the possibility that the said girl might have suddenly darted out and come in the middle of the road only to be dashed by the said 8 vehicle. 10. Considering the facts of the case, in my view, this was certainly not a case for invoking the principle of res ipsa loquitur and convict the accused solely based on the said principle. Considering the evidence produced by the prosecution, there was no acceptable evidence either to show that it is the accused who was driving the said vehicle or that the same was driven rashly or negligently. 11. Accused, therefore, certainly deserves to be given benefit of doubt. Consequently, the revision succeeds. The judgments of the Courts below are hereby set aside and the accused now shall stand acquitted for offences for which he previously stood convicted, with no order as to costs. Bail bonds shall stand discharged. N.A. BRITTO, J. NH/-