1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 46 OF 2008 State of Goa. ... Appellant versus Menino Dias S/o John Dias r/o H. No. 4, Vaddem, Near Poi Hospital, Vasco Goa. ... Respondent Ms. Winnie Coutinho, Public Prosecutor for the Appellant. Shri Arun Bras De Sa, Advocate for the Respondent. CORAM : N. A. BRITTO, J. DATE : 22ND JULY, 2009. ORAL JUDGMENT This is State's appeal and is directed against the acquittal of the accused under Sections 279, 337 IP.C., by Judgment dated 29-2-2008 of the learned J.M.F.C., Panaji. 2. There is no dispute that the Respondent herein(accused, for short) was driving the bus in question at the time when it met with an accident on 2 15-8-2005 at about 3.00 p.m. as it was coming from Vasco-da-Gama to Panaji, after crossing the Zuari bridge in which several passengers were injured. The said bus driven by the accused belonging to KTC and bearing No.GA-01-X-0306 went from left to right, hit a tree and turned turtle with all the four wheels facing the sky, and, as later stated by PW1/Hanumant Volvoikar, it is that tree which saved them all. 3. The accused was charged and tried with the allegation that on the said date and time, he drove the said bus in a rash and negligent manner endangering human life whilst coming from Vasco to Panaji, in a fast speed whereby he lost control and his bus went off the road, causing injuries to PW4/Smt. Neema Gawas, her daughter and other passengers travelling in the said bus. 4. The case of the accused was that a spring leaf of the right side of the bus suddenly broke and the bus went off the road and turned turtle and the accident took place because of the said defect and not because of his fault. 5. In support of the charge, the prosecution examined eight witnesses, out of whom, four were passengers who were travelling in the said bus. The accused examined none. The medical certificates of the injured were produced by the prosecution with the consent of the accused by application filed under Section 294(2) of the Code(Code of Criminal Procedure Code, 1973). 3 6. In acquitting the accused, the learned Magistrate observed that there was no evidence on record to show that any of the passengers prior to the accident had told the accused that he was driving the bus fast, as if to say, that the passengers travelling in the bus were expected to tell the driver that he was driving fast. The learned Magistrate further observed that it could not be ascertained whether the accident had occurred on account of the fault of the accused and that an inference was possible that on account of sudden mechanical defect the accident might have taken place and benefit of doubt ought to have been given to the accused as if to say whatever was stated by the accused was readily to be accepted without any corroboration circumstantial or otherwise. As far as the injuries are concerned, learned Magistrate observed that the injuries were not disputed but it was not shown that they were caused on account of rash and negligent driving by the accused. 7. To prove the panchanama of the scene of offence the prosecution initially had examined PW1/Hanumant Volvoikar but since he did not support the panchanama, prosecution examined PW7/Lawrence Ferrao who identified his signature on the panchanama earlier produced and stated that the panchanama was written in English and explained to them in konkani. The only suggestion which was put to him was that the panchanama and the sketch were signed at the Police Station. PW8/P.S.I. Jaganath Bhosale also stated that he had conducted the said panchanama of the scene of offence in the presence of two panch witnesses, namely, PW7/Lawrence Ferrao and PW1/Hanumant Volvoikar. The details of the 4 said panchanama were thereafter narrated by him in his evidence. Learned Counsel on behalf of the accused submits that the panchanama has not been proved by the prosecution. This submission cannot be accepted in the light of the evidence of PW7/Lawrence Ferrao as well as PW8/P.S.I. Jaganath Bhosale. The said panchanama shows that the accident had taken place after crossing the Zuari bridge and before a speed breaker. It also shows brake marks to the extent of 12.05 meters of both the tyres on the left lane of the said road, coming from the bridge towards Agacaim, and thereafter scratch marks to the extent of 4.05 meters on the other lane of the road and then the bus resting over electric pole and a tree, on the extreme right side of the road. 8. PW2/Supradha Sawant, who was travelling in the said bus and who was sitting in the last seat, stated that the bus left Vasco at 3.00 p.m. and after about 15 minutes the bus crossed the Zuari bridge and all of a sudden it turned turtle and thereafter there was chaos in the bus. She stated that she suffered injury on her right knee and fracture on the left vertebra. In cross-examination she stated that towards Agacaim side of the Zuari bridge the level of the road is high due to which the vehicles jump at that spot. Again, she stated that the vehicles give a jerk. PW4/Nima Gawas was another passenger who stated that the bus left Vasco at 3.00 p.m., and after crossing Zuari bridge it suddenly turned and she suffered injuries to her head, legs and waist. She stated that along with her, there were two of her children and one neighbour by name Darshana. She stated that her elder daughter sustained injuries to her forehead and suffered stitches and further stated 5 that she did not know how the accident occurred exactly. Nevertheless, she stated that bus was in a fast speed but not so fast as it was shuttle service and had not taken any stop in between. In cross-examination, she stated that there was heavy traffic on the bridge and further admitted that on account of speed breaker the vehicle jerks at the end of the bridge. PW5/Darshana Gawas stated that she was with PW4/Nima Gawas and along with her two daughters and that they had boarded the KTC bus at 3.00 p.m. from Vasco bus stand and she further stated that the bus was in a fast speed and as it crossed Zuari bridge, the bus suddenly went to the right side of the road and overturned and there were passengers in the bus. She stated that she suffered injuries on her right leg and the said PW4/Nima Gawas along with her kids also suffered injuries. In cross-examination, she stated that she was sitting in the middle of the bus and further stated that she had stated to the Police that the bus was very fast but it was not recorded by the Police. She also stated that the end of the bridge the bus gave a jerk but she did not hear any noise at the spot of the accident. She further stated that the bus was in a fast speed as it was a non stop bus from Vasco to Panaji, and the accused had maintained the same speed whilst travelling on Zuari bridge. She stated that she suffered injuries on her head and back. 9. PW8/P.S.I. Bhosale stated that he was attached to Agacaim Police Station and was on SHO duty on 15-8-2005 when he received a wireless message from the constable posted near the Agacaim bridge informing that the KTC bus had turned turtle and passengers were injured and on receiving a message he 6 registered an accident case and proceeded to the scene of accident and thereafter shifted the injured to Goa Medical College, Bambolim in private vehicle as well as police jeep and thereafter conducted the scene of offence panchanama. He also stated that he had referred the KTC bus for inspection to a Motor Vehicles Inspector. In cross-examination he stated that he could not say anything to the suggestion that the present accident had taken place on account of mechanical fault. He stated that at the end of the road there was a speed breaker which was uneven but it is levelled. Again, he stated that he could not say anything that the accident occurred on account of mechanical default or that the witnesses had stated that there was a sound and the bus went at the side of the road. He also admitted that a similar accident had taken place at the spot involving another Kadamba bus and he had investigated the case. He stated that there is a sign board indicating no overtaking and showing the speed limit at 30 kms. at a distance of 80 meters from the said bus and there was a speed breaker at a distance of about 25 meters from the said bus towards Panaji side. 10. The prosecution had also examined PW6/Lavu Chodankar who was working as a Traffic Inspector in KTC who had produced driver's attendance card which showed that the accused was driving the bus on that day. He had further stated that they maintained depot log sheets where defects of the vehicles are mentioned at the time of taking charge. Prosecution had also examined PW3/Mahesh Walke who at the request of Agacaim Police Station had inspected the bus of the accused and which in his opinion could not be road tested due to the 7 damages stated by him. He had mentioned that the steering connection was damaged and the front right hand side spring set was broken. He had also stated that the front bumper was damaged on the right hand side, front wind screen was broken, front left hand side window glass was broken, passenger door was damaged and its window glass was broken. He had produced the accident report form and had further stated that the speed limit of vehicles on the Zuari bridge is 30 to 40 kms. per hour. He had further stated that after crossing the Zuari bridge towards Agacaim side there was a slight curve at a distance of about 2 to 3 meters and it is an under curve i.e. the road is at a lower level than the portion of the road. 11. Admittedly, the bus driven by the accused left the left side of the road and went to the right side which is a wrong side and dashed against a tree and in such a situation as observed by the Apex Court in the case of Thakur Singh v. State of Punjab(2004 SCC(Cri.) 1183) the doctrine of res ipsa loquitur comes into play and the burden shifts on the man who is in control of the automobile to establish that the accident did not happen on account of any negligence on his part. The only plea of the accused is that the spring leaf of the right hand side was broken and considering the nature of the accident, it is more than probable that this spring leaf or leaves of the right hand side were damaged, as stated by PW3/Walke, after the bus dashed against the said tree and not before. PW3/Walke opined that if the right hand side spring set was broken the vehicle would move to the right hand side, but at the same time, he also stated that the driver would have known the damage to the steering connection in advance before starting the 8 vehicle and such a damage would have been noticed when the driver was moving the steering. He further opined that with the said damage, the driver could not have reached from Vasco to Agacaim. The opinion expressed by PW3/Walke makes the case of the accused improbable that because of breakage of the spring leaf that he went towards the right hand side and dashed against the tree. On the contrary, the prosecution witnesses had stated that the accused was fast. There is also evidence on record to show that there was a speed limit of 30 to 40 kms. per hour on the bridge and the accident took place soon after the bridge. PW2/Supradha Sawant and PW5/Darshana Gawas has also stated that the accused maintained the same speed whilst travelling on the Zuari bridge. It is quite probable that there was a depression or difference on the level of the road soon after the bridge, as stated by PW3/Walke and it is because of the speed of the bus of the accused, and the said depression that the accused lost control, inspite of application of brakes, and then went towards the right hand side and dashed against the tree, on the extreme right side of the road. The accused was a regular driver on the shuttle service and ought to have known about the said depression and reduced the speed, which he was even otherwise required whilst crossing the bridge which had a speed limit to cross. A vehicle driver, is expected to keep the vehicle always in a state of control; whether the accused acted rashly or negligently depends on the facts of each case. It is the speed of the bus driven by the accused coupled with the said depression which was the cause of accident. 9 12. Shri Arun Bras De Sa, learned Counsel on behalf of the accused has submitted that only because the accused was fast it could not be presumed that he was rash and in this context learned Counsel has placed reliance on Umakant Naik v. State through Public Prosecutor(unreported decision of this Court dated 20-4-2004 in Criminal Revision Application No. 3 of 2004) wherein it was held that high speed itself does not mean that the vehicle was driven in a rash or negligent manner. Learned Counsel may be right to that extent but here is a case where the accused drove the vehicle in a fast speed on the bridge inspite of there being speed limit and thereafter on a turn and inspite of the said depression and thereby lost control and met with an accident. Section 279 speaks of driving in a manner so rash or negligent. Criminal negligence, in the words of the Apex Court (in 1968 1 SCR 121) means gross and culpable neglect or failure to exercise that reasonable and proper care which was the imperative duty of the accused to have exercised. Criminal negligence is want of such degree of care as is required in particular circumstances of the case. In other words criminal negligence is gross and culpable neglect or failure to exercise that reasonable and proper care and to take precaution to guard against injury either to the public in general or to an individual in particular, which, having regard to all the circumstances attending the charge it was imperative duty of the accused person to have adopted. Prosecution evidence shows that another KTC bus had met with an accident at the same place and the accused as a KTC driver could have certainly known about it. The accused also ought to have known that there was a depression as he was a regular shuttle service driver and yet without taking proper care, the accused drove 10 his bus in a fast speed and because of the jerk, lost his control and went and dashed against the tree on the other side of the road and in doing so the accused was certainly rash and negligent. 13. PW1/Hanumant Volvoikar stated that he had an injury on the right forehead and lower back and this has been proved by medical certificate which states that he had tenderness on the lower part of left posterior chest wall. PW2/Supradha Sawant stated that she had suffered an injury on her right knee and fracture of the left vertebra. This was proved by medical certificate which shows that she had a laceration on the right knee and compressed fracture of the left vertebra. PW4/Nima Gawas stated that she had suffered injuries on her head, legs and waist. The medical certificate shows only tenderness on the sacral region. She further stated that her elder daughter had suffered injuries to her forehead and had received stitches. The medical certificate shows that Neha Gawas had a laceration on the right supra orbital region. PW5/Darshana Gawas stated that she suffered injuries on her right leg but there is no medical certificate of hers on record of the case and since her statement was not disputed, the same could be accepted. In other words, the prosecution had proved that PW1/Hanumant Volvoikar, PW2/Supradha Sawant and PW4/Nima Gawas had suffered injuries in the said accident and although the injuries suffered by PW2/Supradha Sawant are grievous, no conviction can be recorded under Section 338 IPC because the charge was framed only under Section 337 IPC. 11 14. The accused was sent for examination of drunkenness, but the medical officer who had examined him was not examined by the prosecution inspite of the test being positive for smell from mouth and breadth. The accused too was injured in the accident and had suffered a fracture of left radius. 15. Considering the evidence produced by the prosecution, in my opinion, the learned Magistrate was certainly not right in giving benefit of doubt to the accused by accepting his mere ipse dixit that the accident had taken place because breaking of spring leaf which was contrary to the opinion given by PW3/Mahesh Walke. Prosecution had produced overwhelming evidence to prove that the accident had taken place on account of the negligence of the accused, and, therefore the learned Magistrate ought to have held the accused guilty under Sections 279, 377, IPC. 16. Consequently, the appeal deserves to succeed. The Judgment of the trial Court dated 29-2-2008 is hereby set aside and the accused is convicted under Sections 279, 337, IPC. 17. Considering the facts of the case, the accused is hereby sentenced under Section 279 IPC to pay a fine of Rs.1000/-, in default to undergo S.I. for six months. The accused is also sentenced under Section 337 IPC to pay a fine of Rs.500/-, in default to undergo S.I. of one month. The accused is further directed to pay compensation in the sum of Rs.1000/- each to PW1/Hanumant Volvoikar, 12 PW2/Supradha Sawant, PW4/Nima Gawas, her daughter Neha Gawas and also to PW5/Darshana Gawas. The accused to deposit the fine within a period of three weeks before the trial Court, in default the accused shall undergo S.I. for five months. The learned Magistrate is directed to disburse the compensation herein awarded to the said witnesses, within a period of ten weeks. N. A. BRITTO, J. RD