Criminal Revision Application No.30 of 2018

22nd November, 2018.

Petitioner Counsel: Shri NIKHIL PAI
Respondent Counsel: Shri PRAVIN FALDESSAI

Cases Cited:
Rajaldas G. Pamnani Vs. State of Maharashtra, 1974 ALLMR ONLINE 528 (S.C.) : (1975) 3 SCC 375 [Para 7]
Jagdev Singh Vs. State of Himachal Pradesh, 2015 SCC OnLine HP 2520 [Para 7,14]
Kurban Hussein Mohamedalli Rangawalla Vs. State of Maharashtra, 1964 ALLMR ONLINE 477 : AIR 1965 SC 1616 [Para 7,13]
State of Karnataka Vs. Muddappa, (1999) 5 SCC 732 [Para 12]
Rattan Singh Vs. State of Punjab, 1979 ALLMR ONLINE 527 (S.C.) : AIR 1980 SC 84 [Para 18]

JUDGMENT

JUDGMENT :- The applicant / accused was prosecuted for the offence punishable under Sections 279 and 304A of Indian Penal Code (IPC, for short) and Section 185 of the Motor Vehicle's Act, 1988 (M. V. Act, for short) before the learned Judicial Magistrate, First Class at Margao in Criminal Case No.232/S/2012/A. The learned Magistrate, by a judgment and order dated 31/05/2017, found the applicant guilty of all the three offences. The applicant has been sentenced to undergo Simple Imprisonment for a period of four months on each count. All the sentences are directed to run concurrently.

2. The applicant unsuccessfully challenged the same before the learned Sessions Judge in Criminal Appeal No.66/2017, which has been dismissed on 27/04/2018. Hence, this Revision Application.

3. The prosecution case may be briefly stated thus :

On 22/04/2012, now deceased Ameena, then aged 18 years, was proceeding on foot along with her younger sister Sabina Khan (PW2) when she was hit by a Maruit Swift Car No.GA-06-D-7561, driven by the applicant The accident occurred near the MES Gate, Rawanfond, Margao. Incidentally, the deceased Ameena as well as the vehicle involved in the accident were proceeding from Rawanfond towards Canacona. It is said that the applicant, who was driving the vehicle was under the influence of liquor at the time of the accident. In the accident, the vehicle went to the right side of the road, hit the deceased and then swayed towards the left and ultimately hit a compound wall. In the accident, Ameena was thrown into a drain adjacent to the road and sustained injuries to which she subsequently succumbed.

4. Before the learned Magistrate, the prosecution examined in all twelve witnesses, namely Abdul Lohar (PW1), Sabina Khan (PW2), Percy Coutinho (PW3), Anton Pereira (PW4), Karima Gauns Khan (PW5), Dr. Avinash Pujari (PW6), Vijay Jain (PW7), Seema Palav (PW8), Dr. Sanjay Dalvi (PW9), Keshav Shetgaonkar (PW10), Prajyot Fadte (PW11) and PSI Ajit Umarye (PW12) and produced contemporary record of the investigation. The applicant neither entered into the witness box nor examined any defence witnesses.

5. The learned Magistrate found the applicant guilty on all the three counts and sentenced him as aforesaid, which has been confirmed by the learned Sessions Judge.

6. I have heard Shri Pai, the learned Counsel for the applicant and Shri Faldessai, the learned Additional Public Prosecutor for the respondent. With the assistance of the learned Counsel for the parties, I have gone through the record.

7. Shri Pai, the learned Counsel for the applicant has submitted that Section 185(a) of the M. V. Act requires the alcohol content exceeding 30 mg per 100 ml of blood for the offence of a drunken driving being proved. It is submitted that in the present case, PW9 had only drawn 10 cc of blood and the evidence of PW8, who analysised the sample, would show that 110 mg % of alcohol was found. It is, thus, submitted that the said percentage is not sufficient to hold the applicant guilty for the offence punishable under Section 185(a) of the M.V. Act. It is submitted that the procedure for drawing of the sample is also not proper. It is submitted that PW9 had admitted in his cross-examination that he cannot accurately ascertain whether the smell from the applicant's mouth and breathe was of alcohol or not. It is, therefore, submitted that the conviction of the applicant under Section 185 of the M. V. Act is not proper. The learned Counsel sought to place reliance on the guidelines for conducting the blood test as prescribed under the Bombay Prohibition Act. Although it was not disputed that the guidelines per se would not apply in the present case (as there is no similar enactment prevailing in the State of Goa), it is submitted that the guidelines are salutary in nature and the prosecution will be required to ensure that similar procedure is followed. For instance, it was pointed out that while obtaining the blood sample, swab of alcohol cannot be used to sterilise either the needle or part of the body from where the blood sample is taken. It is submitted that none of the prosecution witnesses have deposed about the manner in which the sample was obtained by PW9 and whether it was sent in a sealed condition to PW8. It is submitted that the evidence of PW8 also is not clear as to the requirement of the percentage as prescribed under Section 185 of the M. V. Act. Reliance in this regard is placed on the decision of the Supreme Court in the case of Rajaldas G. Pamnani Vs. State of Maharashtra; (1975) 3 SCC 375 : [1974 ALLMR ONLINE 528 (S.C.)], which arose under the Prevention of Food Adulteration Act, 1954. Reliance is then placed on the decision of the Himachal Pradesh High Court in Jagdev Singh Vs. State of Himachal Pradesh; 2015 SCC OnLine HP 2520. It is next submitted that admittedly the road at the spot of accident was a straight road and it is not possible that the vehicle would all of a sudden swirl to the right, hit the deceased and then sway to the left ending up hitting the compound wall. It is submitted that the evidence of PW3, Assistant Motor Vehicle Inspector would show that front left side tyre of the car was found punctured. In the submission of the learned Counsel for the applicant, it is not possible if the Car travels to the right side and hits the victim, there would be damage/ puncture of the left side front wheel of the Car. It is submitted that the prosecution evidence is not sufficient to bring home the charge under Sections 304A and 279 of IPC. Reliance is placed on the decision of the Supreme Court in the case of Kurban Hussein Mohamedalli Rangawalla Vs. State of Maharashtra; AIR 1965 SC 1616 : [1964 ALLMR ONLINE 477], in order to submit that to invite a criminal liability under Section 304-A of IPC, it is necessary that the death should have been the direct result of the rash and negligent driving of accused and that act must be the proximate cause without intervention of the another's negligence. It is submitted that it is not shown in this case that the death of the victim was a direct result of the rash and negligent driving of the applicant. He, therefore, submits that the application be allowed.

8. Shri Faldessai, the learned Additional Public Prosecutor, on the contrary, has supported the impugned judgment. It is submitted that Section 185(a) of the M. V. Act only prescribes the required percentage of the quantity of the alcohol, which should be 30 mg per 100 ml of blood, which can be detected in a test by a breathe analyser. It is submitted that the law does not require that the minimum of 100 ml of blood sample has to be obtained. The learned Additional Public Prosecutor was at pains to point out that even in a case of blood donation, the maximum quantity of blood, which is taken is 250 ml and in his submission, it cannot be the import of Section 185(a) of the M. V. Act that minimum of 100 ml of blood sample is to be obtained. It is submitted that the evidence of PW8 and PW9 read together would clearly establish that the applicant was driving under the influence of liquor and the required percentage was as is required by Section 185(a) of the M. V. Act. It is submitted that none of the grounds about the procedure followed for obtaining of sample and the test conducted, were raised before any of the Courts below. He, therefore, submits that it is not open for the applicant to raise these grounds for the first time before this Court.

9. It is next submitted that according to the prosecution, the vehicle, after hitting the victim, had then swayed towards the left and had ended up hitting the compound wall on the left side and thus, the damage to the left front side wheel and puncture of the tyre is but natural, in the ordinary course of nature. It is submitted that the fact that the vehicle travelled to the right side (wrong side) and hit the victim, who was thrown at a distance of about 8.60 metres in the drain, itself is indicative of the manner in which the vehicle was driven. He further points out that the vehicle then travelled back to the left side and hit the compound wall, which is indicative of the rash and negligent driving of the applicant. He submits that the applicant has not shown as to how the concurrent findings recorded by the Courts below are erroneous. He, therefore, submits that no case for interference is made out.

10. I first propose to deal with the offence under Section 185(a) of the M. V. Act. Under the said section, whoever while driving or attempting to drive a vehicle has in his blood, alcohol exceeding 30 mg per 100 ml of blood, detected in a test by a Breath Analyser, is guilty of the offence of drunken driving. The learned Additional Public Prosecutor is right that the Section cannot be read to mean that minimum of 100 ml of blood sample has to be obtained. This is because what Section 185(a) essentially requires is the percentage of the alcohol in the blood, which should exceed 30 mg per 100 ml. In the present case, PW9 had drawn a sample of 10 ml which was sent to PW8 for analysis. PW8, in his evidence, has stated that the blood sample was analysed and he found 110 mg "percentage of alcohol" present in the said sample. The report produced on record also shows 110 mg "percentage of alcohol" in the blood sample. The evidence, in my considered view, is not clear. If at all 110 mg was not actually the quantity found, but percentage of the quantity found, then the said quantity of alcohol has to be reckoned in relation to 100 ml of the blood sample. This is because speaking in percentage terms, it would always be in relation to the quantity found per 100 ml of the blood. If the said quantity is to be considered in relation to 10 ml of blood sample, which was sent, the quantity found would be 11 mg. Although PW9 has initially stated that he had noticed smell of alcohol from the mouth and the breathe of the applicant, in the cross-examination, he admitted that he cannot "accurately ascertain" whether the smell from the patient's mouth and breathe was that of alcohol or not. It is further significant to note that PW9, who examined the applicant immediately after the accident, has stated that the applicant could perform 'finger to nose test'. He could pick up a pencil from the floor and his eyes and conjunctiva were normal and the BP was also normal. PW9 also stated that the knee and ankle reflect was present. The applicant was well oriented in time and place and was able to take care of himself. There is also no acceptable evidence about the manner in which the blood sample was obtained, as to whether it was properly sealed and the nature of the tests conducted. Looking to the overall evidence, in my considered view, the applicant would be entitled to a benefit of doubt in so far as the offence under Section 185 of the M.V. Act is concerned.

11. This takes me to the offence under Sections 279 and 304-A of IPC. Under Section 279, whoever drives any vehicle or rides on any public way, in a manner so rash or negligent as to endanger human life or to be likely to cause hurt or injury to another person, shall be punished with imprisonment of either description for a term, which may extend to six months or with fine, which may extend to 1,000/- or with both. Section 304-A speaks of causing death by negligence and provides that whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term, which may extend to two years or with fine or with both.

12. In the present case, we have both ocular as well as circumstantial evidence on the point of negligence of the applicant. PW1-Abdul Lohar, PW2-Sabina Khan and PW7- Vijay Jain are eye witnesses to the accident. PW1 has stated that on the date and time of the accident, i.e. 3.30 to 3.45 p.m., he was proceeding to Quepem from his residence at Navelim by bike by the Rawanfond- Quepem road. He stated that when he reached Rawanfond, one Swift vehicle, which was proceeding towards Quepem, went to the right hand side portion of the road and gave a dash to a girl, who fell in a gutter. The Car proceeded further and thereafter, gave a dash to the compound wall, which was at the left hand side of the road. Nothing significant has come in the cross-examination of this witness. He stated that he was working with Aruna Electricals, Margao and his working time is from 9.00 a.m. to 6.30 p.m. However, on the day of the accident, there was off day, being a Sunday. PW2 is younger sister of the deceased, who was walking along with the deceased at the time of the accident, who has also stated about the manner, in which the accident occurred. PW7 also happens to be a spot panch as well as the eye witness. He stated that at the spot of the accident, the road was approximately 6 meters wide. He had observed the tyre marks of the Maruti Swift Car stretching from the right hand side portion, towards left hand side, touching the compound wall, where the Swift Car had ultimately hit the compound wall. He claims that at the time of the accident, he was sitting in Bhaskar Gada, having tea along with others and had personally witnessed the accident. I have gone through the evidence of this witness and there is nothing in the cross-examination to dislodge his evidence. Admittedly, the road, where the accident occurred, was a straight road and the applicant was expected to proceed by the left hand side of the road. However, there is clear evidence on record that the Swift Car travelled to the right side, gave a dash to the deceased and then swayed back to the left hand side before dashing the compound wall. There are tyre marks while the Car swayed to the left before dashing the compound wall, which would be indicative of the speed at which the vehicle might have been driven. The sketch annexed to the spot panchanama shows that from the spot of impact, the dead body was thrown to a distance of 8.60 metres in the drain by the side of the katcha road. There are absolutely no contributory factors coming forth on record, which might have caused the accident except the negligence of the applicant. The learned Magistrate as well as the learned Sessions Judge has considered the prosecution evidence threadbare and has rightly come to the conclusion that the applicant was guilty of the offence punishable under Sections 279 and 304-A of IPC, which does not require interference in the revisional jurisdiction of this Court. It is trite that while entertaining the Revision, this Court would not re-appreciate the evidence unless and until the findings recorded by the Courts below are perverse. Reliance placed on behalf of the applicant on the decision in the case of State of Karnataka Vs. Muddappa; (1999)5 SCC 732 is, to my mind, misplaced. There cannot be any dispute with the proposition that for the offence under Section 304-A of IPC to be brought home, the death has to be a direct and proximate result of the rash and negligent act of the accused. In the present case, I have already held that there are no contributory factors, which are discernible from record, which contributed to the accident and there is clear evidence that the accident occurred solely due to the negligence of the applicant.

13. The decision in the case of Kurban Hussein Mohamedalli Rangawalla (supra) turned on its own facts. In that case, the appellant accused was a Manager and working partner of a factory, which was licensed to store turpentine, varnish and paint. The licence was issued subject to certain conditions. The appellant converted the factory from the cold process of manufacturing dry paints to a process of manufacturing wet paints by heating and for that purpose, four burners were used for melting resin or bitumen by heating them in barrels and thereafter adding turpentine thereto, after temperature cooled down to a certain degree. It appears that as soon as one Hatim started pouring turpentine, the mixture began to froth and Hatim was unable to stir as according to him his assistant was at some distance. As a result of this, the froth overflowed out of the barrel and because of heat, the varnish and turpentine, which were stored at a short distance, caught fire, which spread rapidly, resulting into the death of 7 persons. In the facts and circumstances of the case, the Supreme Court, while setting aside the conviction of the appellant under Section 304-A of IPC, maintained the conviction under Section 285 of IPC as the Supreme Court came to the conclusion that mere fact that the appellant allowed the burners to be used in the same room, in which varnish and turpentine were stored, although may be negligent, it would not be enough to make the appellant responsible for the fire, which broke out. In other words, it was held that this circumstance was indirectly responsible for the fire, which broke out and the death was not the direct or proximate cause of any negligent act of the appellant.

14. It would not be necessary to refer to the decision of the Himachal Pradesh High Court in the case of Jagdev Singh (supra), as I have already found the evidence to be insufficient to hold the applicant guilty for the offence under Section 185 of the M. V. Act.

15. The learned Counsel for the appellant made an alternate submission of extending the benefit of Probation of Offenders Act to the applicant. It is submitted that at the time of the accident, the applicant was 21 years of age and he has no criminal antecedents to his discredit and has been of a good behaviour. He submits that the benefit of the Probation Offenders Act may be extended to the applicant and he may be released on admonition.

16. Shri Faldessai, the learned Additional Public Prosecutor for the respondent opposes the same. It is submitted that the offence is serious, in which a young girl has lost her life and this is not a fit case in which the benefit of Probation of Offenders Act can be extended to the applicant.

17. I have given my anxious consideration to the circumstances and the submissions made and in my considered view, it would not be appropriate to extend the benefit of the Probation of Offenders Act to the applicant in the present case. It is a matter of common experience, of which a judicial notice can now be taken that the highways and the city roads have become the greatest death traps. Looking to the explosion of number of motor vehicles and the callousness, in which the vehicles are driven, there is a phenomenal rise in the vehicular accidents, resulting in casualties and serious injuries to those involved in such accidents. A person driving a motor vehicle on a public road is under a duty to take care and negligence is essentially a breach of such a duty to take care, by which the person driving the vehicle not only endangers his own life and limb, but also endangers the lives and limbs of other users of the road. It is high time that the deterrent component of the punishment is emphasized in such cases. If the accused, who has been found guilty of an offence of a rash and negligent driving, resulting into death of a pedestrian or any other user of the road, is let off on admonition, it is likely to send a wrong signal to the society in general, apart from weakening the deterrent effect of the punishment.

18. A useful reference may be made to the following observations of the Hon'ble Supreme Court in the case of Rattan Singh Vs. State of Punjab; AIR 1980 SC 84 : [1979 ALLMR ONLINE 527 (S.C.)], which were made way back in the year 1980 and are in fact more relevant today given the explosion of the vehicle population on the public roads:

"This petition for special leave under Art.136 is by a truck driver whose lethal hands at the wheel of an heavy automobile has taken the life of a scooterist-a deadly spectacle becoming so common these days in our towns and cities. This is a case which is more a portent than an event and is symbolic of the callous yet tragic traffic chaos and treacherous unsafety of public transportation-the besetting sin of our highways which are more like fatal facilities than means of mobility. More people die of road accidents than by most diseases, so much so the Indian highways are among the top killers of the country. What with frequent complaints of the State's misfeasance in the maintenance of roads in good trim, the absence of public interest litigation to call state transport to order, and the lack of citizens' tort consciousness, and what with the neglect in legislating into law no-fault liability and the induction on the roads of heavy duty vehicles beyond the capabilities of the highways system, Indian Transport is acquiring a menacing reputation which makes travel a tryst with Death. It looks as if traffic regulations are virtually dead and police checking mostly absent. By these processes of lawlessness, public roads are now lurking death traps. The State must rise to the gravity of the situation and provide road safety measures through active police presence beyond frozen indifference, through mobilisation of popular organisations in the field of road safety, frightening publicity for gruesome accidents, and promotion of strict driving licensing and rigorous vehicle invigilation, lest human life should hardly have a chance for highway use."

19. For these reasons, I am not inclined to extend the benefit of the Probation of Offenders Act to the applicant in the present case. The conduct of the applicant also does not deserve the benefit of the Probation of Offenders Act being extended. The applicant, at the trial, even disputed that he was driving the vehicle, which contention is given up at this stage.

20. In the result, the following order is passed :

1. The criminal revision application is partly allowed.

2. The conviction and sentence awarded to the applicant for the offence punishable under section 185 of the Motor Vehicles Act, 1988 is hereby set aside. The applicant is acquitted of the offence punishable under section 185 of the Motor Vehicles Act.

3. The conviction and the sentence of the applicant for the offence punishable under section 304-A and Section 279 of I.P.C is hereby confirmed.

4. The bail bonds of the applicant stand cancelled. The applicant is granted six weeks time to surrender before the learned Chief Judicial Magistrate at Margao.

5. In the event the applicant fails to surrender, the learned Chief Judicial Magistrate shall issue a warrant for apprehending the applicant for serving the remainder part of the sentence.

6. The criminal revision application is disposed of in the aforesaid terms.

Revision partly allowed.