1. Heard rival submissions on this criminal revision petition challenging the judgment and order dated 21/11/2013 passed by the Judicial Magistrate First Class, Canacona, Goa and subsequent order dated 28/03/2014 passed by Additional Sessions Judge, South Goa, Margao.
2. By the order of the Judicial Magistrate First Class, Canacona, Goa, the present revision petitioner was convicted for the offence punishable under Sections 279,337 and 338 of Indian Penal Code and was directed to suffer simple imprisonment for the period of 2 months, 1 month and 3 months, respectively. He was also directed to pay fine for the offence punishable under Section 134(a)(b) of Motor Vehicles Act and also directed to pay fine of Rs.1,000/- under Section 196 of the Motor Vehicles Act. Certain other fine amounts were also imposed on contravention for relevant provisions of Central Motor Vehicle Rules.
3. In short, the main conviction is for the offences punishable under Sections 279, 337 and 338 of Indian Penal Code. The above conviction was challenged before the Sessions Court in Criminal Appeal No.6/2014 and the appeal was partly allowed, thereby partly quashing and setting aside the imposition of fine on contravention of Rule 100 of Central Motor Vehicles Rules and other fine amounts. In short, by the order of the appellate Court in partly allowing the appeal, the main conviction for the offences punishable under Sections 279, 337 and 338 was maintained. Mainly this maintaining of the conviction is challenged in the present revision petition by the petitioner/original accused.
4. Prior to appreciating the rival arguments some factual position as to how the offence has occurred and how the present petitioner came to be arrested, is required to be mentioned in order to have proper perspective of the matter.
5. Without going in much details suffice it to say that when PW5 and 6 were proceeding on the motorcycle on 30/08/2012 in the evening time, one Maruti 800 motor car bearing no.GA-08-E-0656 came from behind and gave dash to the motorcycle thereby causing injury to the motorcycle rider and pillion rider i.e. PW5 & 6. Both the injured persons were taken to the hospital and were treated by PW2/Dr. Dessai. PW6 was seriously injured and he was also subsequently treated by Dr. Shaha from Neurological Department. According to the case of prosecution, on the next day of the incident the said motor car was brought to the police station by the present petitioner. Present petitioner was subsequently taken charge of and arraigned as the accused on the premise that he was driving the motor car involved in the accident on 30/08/2012. At this stage, it can be mentioned that there is no explanation given by the Investigating Officer during recording of evidence before the trial Court as to how the present petitioner was treated as an accused and mainly treated as a person who was driving the vehicle at the time of the accident. Also it must be mentioned at this stage that though the statement of the owner of the motor vehicle was recorded during investigation, said owner was not brought before the Curt for giving the evidence for establishing the fact that the vehicle was being driven at the time of the accident by the present petitioner.
6. Now coming to the arguments advanced on behalf of the petitioner, the case of the prosecution is assailed on three counts. First one that there was no rash and negligent driving proved on the part of the present petitioner. Secondly that there was no proof as to the specific point of impact at which the accident took place and thirdly and importantly that there is no proper identification of the driver of the vehicle at the time of the accident inasmuch as there was nothing brought on record that the present petitioner was driving the vehicle and, as such, was responsible for the said accident. In the opinion of this Court, considering the substantive evidence of 8 prosecution witnesses, the main point of argument, that is the identity of the present petitioner as the driver of the offending vehicle is preferred to be dealt with as in the event of prosecution failing to establish this fact the entire case of prosecution cannot be taken against the present petitioner, much less proof of any rash and negligent driving on the part of the petitioner.
7. Out of the 8 prosecution witnesses examined the important prosecution witnesses so far as the present criminal revision is concerned are PW5 & 6, that is the rider of the motorcycle one Velister Fernandes and pillion rider Vinay Apgi. Substantive evidence of both these witnesses show that when they were proceeding on a motorcycle at the relevant time red colour Maruti 800 vehicle came from behind and gave dash to them. That time the window glasses of the vehicle were on and they were dark coloured glasses. This presupposes that according to these witnesses admittedly they had not seen who was driving the vehicle and gave dash to their motorcycle and then flee away. Even in the substantive evidence of these witnesses PW5 & 6, they have not mentioned that the present petitioner, then accused before the Court was driving the vehicle, much less in a rash and negligent manner. Now, this position leads to finding any material from the prosecution story as to the establishment of the identity of the present petitioner as the driver of the offending vehicle and for this purpose the only evidence now available is that of PW8/Deepak Naik. Admittedly, his statement was recorded in investigation after about a month and his evidence was recorded before the Court after examination of 7 prosecution witnesses including evidence of Investigating Officer, PW7. Admittedly, Deepak Naik is the last prosecution witness examined as PW8. According to this witness, he was a chance witness on the road and he was proceeding in his motor vehicle and his motor vehicle was overtaken by the offending car in a high speed. He further noticed that the offending vehicle went ahead and gave dash to the motorcycle of PW5 and 6 thereafter according to these witnesses the said offending vehicle halted at a distance of about 100 meters or so beyond the spot of incident and thereafter flee away. This is the substantive evidence in the examination in chief. In the cross-examination this witness has improved on the story and mentioned that when the offending vehicle proceeded ahead after the accident and halted at a distance of about 100 meters, the driver peeped out from the window of the car and saw backwards and then after sometime flee away with the car. Apparently, according to this witnesses this was the opportunity for him to see the face of the driver of the vehicle and, subsequently, he had identified the present petitioner in the Court. In fact, this was very crucial evidence and it must be said that both the earlier Courts have lost the sight of factual position as to possibility of this witnesses observing the face of the driver so as to subsequently identify him in the Court during the trial. This was more so important in view of no substantive evidence by PW5 & 6 coming to the shelter of the prosecution so far as the identity of the driver. Again on this aspect admittedly there is nothing brought on record even by the Investigating Officer as to how the present petitioner can be termed as the driver of the offending vehicle. There was way out for the Investigating Officer to find out from the owner as to the present petitioner was actually driving his vehicle at the relevant day and time. However, apart from recording of the statement of the owner he was not brought before the Court to give substantive evidence. As such, it must be said that the prosecution is handicapped for want of any material to establish that the present petitioner was in fact driving the vehicle. It is also curious to note that there is no investigation on the part as to whether the present applicant had any driving licence or not.
8. Considering the substantive evidence of PW - 5, 6 & 8, in the opinion of this Court, the prosecution has failed to establish that the present petitioner was in fact driving the vehicle and was perpetrator of the crime. Consequently, rash and negligent driving on the part of the present petitioner is of no much significance. At this juncture, it must be made clear that so far as the involvement of the motor vehicle i.e. Maruti 800 of red colour in the said accident can apparently be seen from the material available. However, for want of the proof as to the petitioner was the driver of the said vehicle at the time of the accident, this aspect of involvement of the vehicle is of no much significance so far as criminal action against the petitioner is concerned. It is told to the Court that separate motor accident claim is pending before the clai
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ms tribunal and, as such, that aspect of involvement of the vehicle can be established before the said forum. 9. In view of the above observations and on account of the failure of the prosecution to establish involvement of the present petitioner as driver of the vehicle at the relevant time and in view of both the earlier Courts overlooking this aspect, there is need to interfere with the impugned orders under the revisional jurisdiction. Hence, the present revision petition succeeds and the same is accordingly allowed with following order: ORDER (i) Criminal Revision Application is allowed. (ii) The impugned orders dated 21/11/2013 & 28/03/2014 passed by the Judicial Magistrate First Class, Canacona and Additional Sessions Judge, South Goa, Margao are quashed and set aside. (iii) Bail bonds of the petitioner shall stand cancelled. (iv) Fine amount, if already paid, shall be returned back to the petitioner.