1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 63 OF 2008. 1. Suresh Desai Son of Prataprao Desai, Resident of House No.1417, Desai Nagar, Sanquelim. .... Applicant. Versus 1. State Through the Bicholim Police Station, Bicholim. ..... Respondent. Mr. J. J. Mulgaonkar, Advocate for the applicant. Ms. W. Coutinho, Public Prosecutor for the respondent. CORAM :- C. L. PANGARKAR, J. DATE OF RESERVING THE JUDGMENT : 7 TH JANUARY, 2009. DATE OF PRONOUNCING THE JUDGMENT:14 TH JANUARY, 2009 . JUDGMENT : 1. Rule, returnable forthwith. Heard with consent of the parties. 2. This revision application is by the accused whose conviction under Section 279, 338 of the Indian Penal Code, is confirmed by the Sessions Judge. 2 3. The facts are as follows : On 02.04.2006, Kiran Govekar, the complainant had gone along with his friend to Maulingem. After finishing their work, they were on way back to Bicholim. They were, therefore, going from Maulingem to Bicholim. They were riding motor cycle No.GA04-A- 2565. Kiran was driving motor cycle while his friend was pillion rider. While they were on way and their motor cycle had reached near Lakere Bordem, one motor car of Matiz make, was coming from opposite direction. There was also autorikshaw in front of the said motor car. It is alleged that the driver of the motor car i.e. the accused took motor car to the extreme right in order to overtake the autorikshaw and gave dash to the motor cycle driven by the Kiran. Kiran sustained injuries due to the accident. The matter was reported to police and panchanama was drawn and chargesheet came to be filed against the accused. 4. The learned Magistrate framed charge against the accused under Section 279, 337 and 338 and sentenced him to undergo simple imprisonment for a period of 15 days on each count. He also directed to the accused to pay compensation of Rs.1,000/-. The accused was acquitted of the offence under Section 337. 3 5. The accused preferred an appeal before the Sessions Judge, who confirmed the order passed by the Judicial Magistrate, First Class. Hence, this revision. I have heard the Counsel for the petitioner/ accused and the State. 6. The scope of revision is always limited. The Court can look into the legality and propriety of the order passed by the Court below and cannot reassess the evidence over again unless it is shown prima facie that appreciation of the evidence was perverse. 7. In the instant case, the prosecution has examined two important witnesses i.e. the driver of the motor cycle and autorikhaw driver, who could be said to be an independent witnesses. The pillion rider also has also been examined. The learned Counsel for the accused / petitioner, contends that the evidence of P.W.2 driver of the motor cycle, suffers from infirmities. He submits that this witness, in fact, changes the spot of the accident, therefore, his version should not have been accepted. He submits that the witness No.2 states that the accident had taken place exactly a the curve, but the spot panchanama shows that it had taken place more than 8 metres away from the curve. The learned Magistrate has ignored this discrepancy on the ground that it is so minor 4 that it cannot be taken cognizance of. If the sketch of the spot, is seen, it is very close to the curve and if the witness says that the spot was near the curve, that may have been his perception. Therefore, even if he says that the accident had taken place near the curve, that does not affect his testimony otherwise. 8. The evidence of the witness No.3 autorikshaw driver, was assailed on the ground that he was unable to give correct make of the car. It is stated in the evidence that he is unable to give the description of the car while the investigation shows that the make of the car, was matiz. This is not a ground to reject the testimony. The power of retention as well as perception, can defer from person to person. It is the prosecution case itself that the accident had taken place while overtaking the autorikshaw. The presence of such autorikshaw, is even not disputed. This witness had also carried the injured in autorikshaw to the hospital. His presence on the spot, therefore, cannot be disputed and even if, he is unable to give the correct description or make of the car, that does not materially affect his veracity. In the circumstances, the learned Magistrate had rightly relied on the evidence. 9. The third ground that was urged by the Counsel for the accused/ petitioner, was that, in fact, there is no evidence of rash and 5 negligent driving. He submits that it was merely an error of judgment and there was no evidence of rashness and negligence. According to him, an error of judgment, is not equivalent to rashness and negligence. He relied on the decision of Orissa High Court in the case of Badri Prasad Tiwari Versus State reported in 1994(1) Orissa High Court 687. The observations are as follows : “ 5. Section 279, I.P.C. deals with rash and negligent driving of any vehicle or riding on a public way in a rash and negligent manner so as to endanger human life or likely to cause hurt or injury to any person. In order to constitute an offence under Section 279, I.P.C. it must be established that the accused was driving the vehicle on a public way in a rash and negligent manner to endanger human life or to likely cause hurt injury to any other person. For the purpose of Section 279 rash and negligence may be described as criminal rashness or criminal negligence. It must be more than mere carelessness of error of judgment. The essential ingredients of Section 279 are : (i) Rash and negligent driving or riding on a public way; (ii) The act must be such as to endanger human life or likely to cause hurt or injury to any person.” For an offence punishable under Section 304A, I.P.C. the point to be established is that the act of accused was responsible for resulting in the death and such act of the 6 accused was rash and negligent although it did not amount to culpable homicide. To establish either of Sections 279 or 304A, rash and negligent has to be established, but only distinction is that in section 279 rash and negligent act relates to the manner of driving or riding on a public way, while offence under section 304A extends to any rash and negligent not falling short of culpable homicide. As indicated above, rashness or negligence to be established must be more than an error of judgment. Distinction between rashness and negligence is that negligence connotes want of proper care, while rashness conveys of idea of reckless doing of an act without consideration of any consequences. 10. Another decision of the Supreme Court reported in the case of State of Karnataka Versus Satish reported in (1998)8 SCC 493, was placed before me. The Supreme Court observes thus: “4. Merely because the truck was being driven at a “high speed” does not bespeak of either “negligence” or “rashness” by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by “high speed”. “High speed” is a relative term. It was for th prosecution to bring on record material to establish as to what it meant by “high speed” in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an 7 accused 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. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of “rashness”or “negligence” could be drawn by invoking the maxim “res ipsa loquitur”. There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.” 11. The Supreme Court observes that mere high speed does not connote either rashness or negligence. In the instant case, it is not stated by any of the witness that offending vehicle was in high speed. Here, the case of the prosecution is that the accused, ignoring the rule of driving, overtook the vehicle ahead of him and that too, without taking care of the on coming traffic. Every driver of the vehicle, is certainly bound to see if another vehicle is coming from opposite direction before overtaking the vehicle ahead of him. In the instant case, the accused had taken the vehicle to the extreme right in order to overtake leaving 8 no space for motor cycle to pass by. The accused took the risk of overtaking the vehicle ahead of him without noticing the motor cycle, coming from the opposite direction and this risk is nothing short of negligence and rashness. The accused was, bound in fact, to take that care and caution. It is stated by witness No.2 that, in fact, no space was left for him to his left as there was a gutter by the side. He, therefore, also could not avoid the accident. It was urged that the accused was not driving the vehicle at all. This ground is not raised before the Sessions Judge in grounds of appeal and, cannot be considered by this Court now. If this evidence and facts are considered, it cannot be said that the order suffers from illegality or impropriety. 12. The learned Counsel for the applicant submits that the applicant is a young boy and recently married and has an infant child and he also submits that he has recently started his career and being he is sent to jail, immense harm would be caused to him and his family. Considering this, he submits that the Court may alter the sentence and may direct the applicant to pay fine alone and the sentence of imprisonment, may be set aside. After having considered the submission, I find that the conviction of the accused, needs to be maintained and the sentence needs to be altered. The conviction of the accused, is maintained. The sentence of imprisonment, imposed on him, 9 is set aside and instead, the accused is directed to pay fine of Rs.2500/- on both the counts. 12. Rule is made absolute accordingly. C. L. PANGARKAR, J. SMA