1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 35 OF 2010 Shri Santosh Naik, Son of Govind Naik, Age 34 years, Service, R/o House No.399, Aldona, Banastari, Ponda-Goa. Presently undergoing sentence in Sub-Jail Sada, Vasco Da Gama. ... Applicant versus State of Goa, Through Public Prosecutor, Panaji, Goa. ... Respondent Shri M. Amonkar, Advocate for the Applicant. Shri C. A. Ferreira, Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE : 23RD AUGUST, 2010. ORAL ORDER The applicant herein is an accused who has been convicted and sentenced under Sections 279, 304-A I.P.C. by the learned J.M.F.C., Ponda, by Judgment dated 17-12-2009, and whose conviction and sentence has been 2 confirmed by the learned Assistant Sessions Judge, Panaji by his Judgment/Order dated 16-8-2010. 2. The accused was charged and tried with the allegation that on 27-5-2007 at about 1.50 p.m., the accused drove Sumo jeep bearing No.GA- 01-S-2844 in a rash and negligent manner causing the death of Ramchandra Gaude, the husband of PW7/Taramati Gaude. 3. In support of the charge, prosecution examined 11 witnesses, and amongst them there was PW3/Sanjyoti Naik, the wife of the accused. PW4/Laxmi Naik, the mother-in-law of the accused, and PW6/Madhura Gaonkar, a close relative of the accused. The accused was examined under Section 313 of the Code(Code of Criminal Procedure, 1973) and the case of the accused was that false complaint was filed against him. The accused did not even admit that he was driving the said Tata Sumo nor explained as to how the accident had taken place. There is otherwise no dispute that the Tata Sumo driven by the accused went off the road and fell down on a hut, at a depth of about 2 meters, causing the death of the said Ramchandra Gaude. Although, the accused gave no explanation as to how the accident was caused, it appears that in the cross-examination, the defence taken by the accused was that the road was slippery on account of the rains. 3 4. The learned J.M.F.C. observed that the accused tried to throw the blame on the rains and the slippery road which the rains caused. The learned Magistrate observed that it is common knowledge that during rains and specially at the time of the first rains the roads tend to get slippery but there is no ground to absolve a driver from causing any accident and that in the case at hand, it was not as if the rains had started all of a sudden and from the material on record he had found that it was raining for quite some time, and in such circumstances, the accused ought to have taken great care and caution while driving his Tata Sumo, and the question was not of driving fast or slow but the question was of driving at a speed that the accused as a driver could control his vehicle in such weather condition. The fact that the accused landed his vehicle off the road and that too overturned would indicate that the accused was indeed not driving slowly but was driving at least at a considerable and uncontrollable speed. The learned Magistrate further observed that the accident spoke for itself with respect to the driving of the accused and all the prosecution witnesses including the relatives of the accused had corroborated that the accused fell on the hut of Ramchandra Gaude after going off the road. 5. The learned Assistant Sessions Judge in Criminal Appeal No. 14 of 2010, observed that a person is said to be negligent when he does not take sufficient care as required under the prevailing circumstances. The learned Assistant Sessions Judge further observed that it was raining at the time of the 4 accident which had made the road slippery and the accused knew about it but he drove his vehicle at a fast speed and caused the accident and thus he acted in a rash and negligent manner, and, therefore the learned Magistrate did not commit any error in holding the accused guilty. The learned Assistant Sessions Judge also noted that the vehicle of the accused had gone off the road and covered a distance of about 5.45 meters before falling on the hut which was at a depth of 2 meters from the road and that in case the vehicle of the accused was going slowly it would not have fallen vertically downwards and there would not have been a distance of 5.45 meters from the edge of the road and the place where the vehicle had fallen. The learned Assistant Sessions Judge also noted that the vehicle of the accused had turned turtle and had not moved after it had fallen down which shows that the vehicle was running at a great speed and would not be controlled, and therefore it flew at the edge of the cliff covering a distance of 5.45 meters and fell on the hut. 6. Shri M. Amonkar, learned Counsel appearing on behalf of the applicant submits that although there are concurrent findings given by the Courts below, the same are not based on the prosecution evidence. Learned Counsel submits that no prosecution witnesses had stated that the accused was driving rashly or in a fast speed. Learned Counsel submits that the vehicle of the accused skidded because of the rains. Pointing out to the evidence of PW3/ Sanjyoti Naik, the wife of the accused, Shri Amonkar, learned Counsel 5 submits that according to her the vehicle had skidded because it was raining on that day. Referring to the evidence of PW4/Laxmi Naik, the mother-in-law of the accused, learned Counsel submits that the accused had tried to control the vehicle when it first went to the right and then to the left. Learned Counsel therefore submits that if at all the accident took place, it took place because of skidding of the vehicle on a rainy day which did not show that the accused was either rash or negligent. Contending that the accident itself did not show either negligence or rashness, Shri Amonkar has placed reliance on the case of State of Karnataka v. Satish(1996 DGLS(Soft) 558). Contending that the accused did not have knowledge of the deceased staying in the hut down below the road, to the right Shri Amonkar has placed reliance on State v. Mohammadsab Urf Baba(2006 CRI. L. J. 3410). 7. In the case of State of Karnataka v. Satish(supra) the Apex Court noted that merely because the truck was being driven at a high speed did not speak of either negligence or rashness by itself, and that none of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by high speed which was a relative term, and it was for the prosecution to bring on record material to establish as to what it meant by high speed, in the facts and circumstances of the case. The Apex Court further held that in a criminal trial the burden of proving everything essential to the establishment of the charge against an accused 6 always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. The Apex Court also held that no presumption of rashness or negligence could be drawn by invoking the maxim res ipsa loquitur, and further observed that the evidence had shown that immediately before the truck turned turtle, there was a big jerk and the prosecution had not explained whether the jerk was because of the uneven road or mechanical failure, and although a report was prepared by a Motor Vehicle Inspector, he was not examined by the prosecution. 8. In the case of State v. Mohammadsab Urf Baba(supra) the evidence showed that there was a lorry which was stuck up in slush mud which was extricated and parked by the side of the road. The accused while proceeding with his lorry hit against the stationery lorry and ran over one Rasoolsab who was trying to untie the rope connecting the tractor and the lorry and the learned Single Judge observed that the act of the accused in dashing against the stationery lorry may amount to rash and negligent driving. Because of the head lights, the driver of the offending vehicle should have been able to see the stationery lorry and with diligent driving could have avoided the accident. The death of Rasoolsab cannot be directly attributed to the rash and negligent driving of the accused. The accused had no knowledge of the deceased working in front of the lorry and he could not forsee the 7 consequences of the negligent act. Therefore, conviction of the accused under Section 304-A was bad in law and the accused was therefore convicted only for an offence under Section 279 I.P.C. 9. As far as the facts of this case go, there is no dispute that it is the accused who was driving the Tata Sumo which, on a rainy day, went off the road and fell at the depth of about 2 meters on a hut causing the death of the said Ramchandra Gaude. The accused who was driving the said Tata Sumo would have been in a best position to explain how the accident took place or under what circumstances the vehicle driven by him went off the road and fell down on the said hut of Ramchandra Gaude. The accused for best reasons known to him did not offer any explanation and that is an additional circumstance which can be taken, against the accused. 10. Intention or knowledge is not one of the ingredients of Section 304-A I.P.C. Death due to a reckless act is. With respect, I am unable to subscribe to the view held in State v. Mohammadsab Urf Baba(supra). The learned Magistrate has taken note of the fact that at the time of first rains the roads try to get slippery but there is no ground to absolve any driver, and in the fact of the case further observed that it was already raining for quite some time suggesting thereby that the accused ought to have driven with greater care and caution. The learned Assistant Sessions Judge has stated that the fact 8 that the accused landed his vehicle off the road and which overturned would indicate that the accused was indeed driving at a considerable and uncontrollable speed. Again, the learned Assistant Sessions Judge stated that the accused whilst driving on a rainy day did not take necessary care and caution as was expected of him while driving the said vehicle and I am entirely in agreement with the said observations of the learned Assistant Sessions Judge. In the case of Baburao Kudalkar v. State of Goa(Criminal Revision Application No.11 of 2009) this Court had referred to the case of Shyam Sunder and others v. State of Rajasthan(1974(1) SCC 690) and stated that the maxim res ipsa loquitur does not embody any rule of substantive law nor a rule of evidence but is resorted to when an accident is shown to have occurred and the cause of the accident is primarily within the knowledge of the driver. This Court had also referred to the case of Rattan Singh v. State of Punjab(AIR 1980 SC 84) wherein the Apex Court had observed that the aforesaid principle could be applied with care, and in the case of Thakur Singh v. State of Punjab(2004 SCC(Cri.) 1183) had taken note that in a situation where the bus driven by the accused over the bridge had fallen into the canal the doctrine of res ipsa loquitur comes into play and the burden shifts on the man who was in control of the automobile to establish that the accident did not happen on account of any negligence on his part. Rashness or recklessness is doing a deliberate act knowing that there is some risk of damage resulting from the act but continuing in the performance of that 9 act. In the case at hand, the only plausible inference is that the accused inspite of knowing the conditions of the road continued to drive in a speed which he was not able to control as a result of which the vehicle went off the road and caused the death of the said Ramchandra Gaude. 11. In the facts of the case, therefore, I find that there is no scope for interference against the concurrent findings of facts arrived at by the Courts below, and consequently I proceed to dismiss the application. 12. Shri Amonkar, learned Counsel on behalf of the applicant at this stage seeks release of the applicant on bail. Considering the facts of the case, the prayer is rejected. N. A. BRITTO, J. RD