Bombay High Court
State Represented By Public Prosecutor vs Suhas Satardekar on 22 January, 1999
Equivalent citations: 1999(5)BOMCR507
Author: R.K. Batta
Bench: R.K. Batta
ORDER R.K. Batta, J.
1. The respondent was tried for rash and negligent driving resulting in simple hurt to Subash Gaonkar and Ameti Gaonkar under sections 279 and 337 Indian Penal Code. The prosecution had examined six witnesses in support of the charges. The trial Judge acquitted the respondent of the charges vide judgment dated 30th June 1997, against which the State has come in appeal.
2. Learned Public Prosecutor Shri Lawande has urged before me that inspite of clear evidence of two eye-witnesses and the panchanama on record, the trial Judge, disregarding the said evidence, ordered the acquittal of the respondent. He took me through the evidence of eye-witnesses P.W. 3 Amethi Gaonkar and P.W. 4 Subash Gaonkar as well as the panchanama and urged before me that it had been established by the prosecution that the accident took place on the right side of the road, taking the direction of the truck driven by the respondent; that the brake marks of the truck to the extent of 6.5 metres were was found on the right side of the road; though the respondent had suggested to eye witnesses P.W. 3 Amethi Gaonkar and P.W. 4 Subash Gaonkar that the respondent was not driving the truck and instead the truck was being driven by one Eknath Gaonkar, the said plea was neither taken in the plea to the charge nor in statement under section 313 Criminal Procedure Code and that trial Judge permitted recording of inadmissible evidence in relation to what was deposed by said Eknath Gaonkar before the police by allowing the defence to cross-examine the Investigating Officer in respect of the statement of the said Eknath Gaonkar before him, who had not been examined in the Court. It was also pointed out that the trial Judge had seriously erred in coming to the conclusion that the evidence of P.W. 3 Amethi Gaonkar and P.W. 4 Subash Gaonkar, who were injured in the accident, could not be relied upon, since they are interested witnesses. On the contrary, it is urged by Public Prosecutor Shri Lawande that injured eye-witnesses are the best witnesses and that the approach of the trial Judge in discarding the testimony of injured eye-witnesses on that count is totally erroneous in view of principle of assessment of evidence.
3. On the other hand, learned Advocate Shri Nabar, appearing on behalf of the respondent, urged before me that none of the two eye witnesses examined by the prosecution has been able to give the speed of the truck; that P.W. 4 Subash Gaonkar does not even say that the truck was being driven at a fast speed; the brake marks on the road shows that the respondent was cautious in driving the vehicle, which was proceeding on the upward ascend; that P.W. 3 Amethi Gaonkar suffered injuries on account of application of brakes and that the prosecution had failed to establish rashness and negligence on the part of the respondent. He, however, admitted that the trial Court did permit recording of inadmissible evidence of Eknath Gaonkar, which was brought through the Investigating Officer, and that evidence upon which reliance was placed by the trial Judge be ignored.
4. The panchanama of the scene of offence and the sketch of scene of offence was produced through pancha P.W. 2 Krishna Gaonkar, who has stated that there was no kutcha road on either side of the tarred road; that brake marks were shown to him and the other pancha and the said brake marks pertained to the truck and that the scooter was lying on the right side of the road. The truck was proceeding from Dabal Sanvordem main road to Gonvolwaddo-Bandoli and according to P.W. 3 Amethi Gaonkar, who was travelling in the truck, the scooter was coming from the right side of the truck, if one faces the road from the said truck. According to P.W. 4 Subash Gaonkar, after the accident he had fallen on the left side of the road, taking into consideration his direction. According to him, the truck came from the opposite direction and dashed on the right side bumper of the scooter. According to him, the accident took place at a turn where neither he could see the truck nor the truck driver could see the scooter.
5. From the above evidence it is established that the accident took place on the right side of the road taking the direction of the truck into consideration and the accident took place on a turn where the truck driver could not see beyond the said turn. The brake marks of the truck on the right side of the road are to the extent of 6.5 metres. The truck dashed the scooter coming from the opposite direction on its own side. The fact that the accident took place on the right side of road on a blind turn and brake marks of 6.5 metres were found on the right side of the road, by itself proves that the respondent was rash and negligent in driving the said truck. Rashness and negligence need not necessarily in all cases be due to high speed, but rashness and negligence can be on account of various factors. The fact that the truck driver had suddenly applied brakes is also proved by the fact that P.W. 3 Amethi Gaonkar, who was travelling in the truck, dashed against the screen of the truck and received injuries. She does speak that the truck was being driven at a fast speed, though she was not able to give the speed of the truck.
6. I am rather surprised with the approach and assessment of evidence by the trial Judge, who has ignored all principles of recording of evidence and assessment of evidence. He permitted inadmissible evidence of Eknath Gaonkar to come on record through the Investigating Officer, P.W. 6 eventhough Eknath Gaonkar had not been examined. It was suggested by the respondent that this Eknath Gaonkar was in fact driving the truck. The respondent, instead of eliciting inadmissible evidence of the said Eknath Gaonkar through the Investigating Officer, could have examined him in his defence, but the method adopted by the defence was totally illegal and not permissible in law to elicit the statement of the said Eknath through the Investigating Officer. In these circumstances, no adverse inference, as has been drawn by the trial Judge against the prosecution, could be drawn. The trial Court has rejected the evidence of injured eye-witnesses Amethi Gaonkar P.W. 3 and Subash Gaonkar P.W. 4 on the ground that they are interested witnesses. It is now well settled that eye witnesses are the best witnesses and even otherwise, the statement of the witness cannot be rejected only on the ground that he is interested witness though the evidence of an interested witness has to be cautiously scrutinized. At any rate, the eye witnesses could not be said to be interested witnesses, as labelled by the trial Judge. Inspite of ample evidence on record, the trial Judge has recorded acquittal of the respondent, which cannot be sustained and is liable to be set aside. Falsity of defence that the respondent was not driving the truck is an additional link to sustain the guilt of the respondent.
7. For the aforesaid reasons the Order of acquittal of the respondent is set aside and the respondent is held guilty for rash and negligent driving resulting in simple injuries to Subash Gaonkar and Amethi Gaonkar under sections 279 and 337 Indian Penal Code.
8. On the point of sentence, learned Advocate Shri Nabar urged before me that the respondent is 21 years old and that he had taken the injured persons to the hospital immediately after the accident, as a result of which lenient view in the matter be taken and the appellant be not sent to prison. . Taking into consideration the facts and circumstances, 1 am of the opinion that ends of justice will be met by sentencing the respondent to pay fine of Rs. 1000/- under section 279 I.P.C. in default simple imprisonment of one month and fine of Rs. 500/- under section 337 Indian Penal Code and in default simple imprisonment of fifteen days. The fine shall be deposited in the trial Court within three weeks from today. If the fine is not deposited during the said period, the trial Court shall take coercive steps against the respondent and in case of non-payment of fine, shall send the respondent to undergo imprisonment in default of payment of fine. If the fine is recovered, a sum of Rs. 500/- shall be paid as compensation to Amethi Gaonkar P.W. 3 and a sum of Rs. 1,000/- to Subash Gaonkar P.W. 4 as compensation out of fine realized from the respondent. The appeal is, accordingly, allowed in aforesaid terms.
9. Appeal allowed.