Dayanand Ramahaskutti S/O. ... vs State (Through Public ...
2001 Latest Caselaw 26 Bom

JUDGMENT

D.D. Sinha, J.

1. Heard Shri Irshad Agha, Counsel for the applicant and Ms. Winnie Coutinho, Additional Public Prosecutor, for the respondent.

2. The Revision is directed against the judgment and order dated 18th January, 2000 passed by the Additional Sessions Judge, Margao in Criminal Appeal No. 8 of 1997 whereby the appeal preferred by the present applicant/accused was dismissed.

3. The facts giving rise to the prosecution of the accused are as follows :-

5-1996, at about 2.30 a.m., at Bhatpal, the accused was driving vehicle (Tata pickup) on a public road. He gave dash to the stones fixed by the side of the road and the pickup van fell down in the river and turned turtle, thereby causing injuries to Devidas Kurle, who succumbed to the injuries on the spot. The injuries were also caused to Namdev Vithal Piranker, who was also one of the occupants of the pickup van. The Canacona Police Station filed charge-sheet against the accused for the offences punishable under sections 279, 337 and 304-A of the Indian Penal Code. The trial Court vide judgment and order dated 18th January 2000 convicted the applicant/accused for the offence punishable under section 279 of the Indian Penal Code and sentenced him to suffer Simple Imprisonment for 2 months, similarly, convicted him under section 337 of the Indian Penal Code and sentenced him to suffer Simple Imprisonment for 2 months. The applicant/accused is also convicted for having committed offence under section 304-A of the Indian Penal Code and sentenced to undergo Simple Imprisonment for 6 months. All these sentences were directed to run concurrently.

4. Being aggrieved by the above referred judgment and order passed by the trial Court, the applicant/accused preferred the Criminal Appeal No. 8 of 1997. The lower Appellate Court after re-appreciating the entire evidence on record, dismissed the appeal and confirmed the finding of conviction recorded by the trial Court. Hence the present Criminal Revision Application.

5. The learned Counsel for the applicant contended that the prosecution in the present case failed to prove the fact of rash and negligent driving by the accused. It is contended that at the relevant time, injured P.W. 5 Namdev, who was the occupant of the pickup van, was asleep and therefore, his evidence is of no assistance in considering the fact whether the applicant was, at the relevant time, driving the pickup van in a rash and negligent manner. It is further submitted that the width of the road at the place of accident is narrow and there was a curve at the spot of the occurrence. It is further submitted that it was raining at the relevant time and, therefore, the road was slippery and because of that, while the accused was negotiating the curve, the vehicle slipped, dashed against the stones and fell down in the ditch. It is contended that no independent witness has been examined by the prosecution in order to show on the point of rash and negligent driving by the accused/applicant. It is, therefore, contended that both the courts did not consider these aspects properly and, therefore, the conviction in the circumstances is unsustainable in law and should be set aside.

6. Heard Ms. Winnie Coutinho for the State. The learned Additional Public Prosecutor supported the judgment and order passed by the trial Court as well as by the Lower Appellate Court.

7. Considered the contentions raised by the respective Counsels. Perused the judgment and order passed by the trial Court as well as by the lower Appellate Court. I must express, at the outset, that the scope of enquiry under section 397 of the Code of Criminal Procedure is limited and this Court cannot re-appreciate the evidence adduced by the prosecution under section 397 of the Criminal Procedure Code. Only if there is a manifest error of law which renders the finding recorded unsustainable in law, then alone, this Court can interfere with the finding recorded by the Court below.

8. On the backdrop of the above settled position in law, I have examined the finding recorded by the Courts below. The prosecution has examined as many as six witnesses in order to bring home the guilt of the accused. The evidence of the panch witness is of material nature. The totality of the evidence of the prosecution witnesses would show that at the relevant time, the accused was in fact driving the vehicle in a rash and negligent manner. The sequence of events brought on record by the prosecution would undoubtedly support the theory put forth by the prosecution in the complaint. Similarly the post-mortem report corroborates the material particulars of the prosecution case. It is no doubt true that the post-mortem report is not a substantive piece of evidence. However, same can always be used for corroboration. Taking into consideration all these aspects, there is no manifest error of law in the findings recorded by the courts below.

9. The learned Counsel for the applicant alternatively contended that the applicant is the only bread earner in the family and is having wife and children. It is submitted that at the relevant time, since it was raining and the road was slippery, these aspects are also responsible to some extent to cause the accident. It is , therefore, submitted that some leniency may be shown and the sentence may be reduced.

10. It is no doubt true that the prosecution has proved the case against the applicant/accused beyond all reasonable doubt for the offences charged. However, since it was raining at the relevant time, this, in the circumstances, can be a mitigating factor for the consideration of reduction of the sentence awarded by the courts below for the offence punishable under section 304-A of the Indian Penal Code. Similarly, the age of the accused and the fact that he is the only bread earner in the family are the other aspects which, in my opinion, also needs to be considered in this regard.

11. In the circumstances, and for the reasons stated hereinabove, the conviction and sentence of the applicant on all counts under sections 279 and 337 of the Indian Penal Code is hereby confirmed. The conviction of the applicant under section 304-A of the Indian Penal Code is confirmed. However, the sentence awarded under section 304-A of the Indian Penal Code is modified and reduced to 2 months. All the sentences are directed to run concurrently and the applicant is entitled for set off.

12. The Revision is partly allowed in the above terms.