SHUDHIR HALANKAR Vs. STATE THROUGH PORVORIM POLICE STATION

JUDGEMENT

(1.) This revision is directed against concurrent findings of the learned Judicial Magistrate First Class, Mapusa and the learned Additional Sessions Judge, Mapusa whereby the Courts below have found the applicant guilty of offences punishable under Sections 279 and 304A of the Penal Code and Sections 134(a) and (b) of the Motor Vehicles Act and sentenced him to undergo simple imprisonment for a period of 3 months and to pay a fine of Rs. 1,000/- or in default to undergo simple imprisonment for one month under Section 279 of the Penal Code, simple imprisonment for a period of 6 months and to pay a fine of Rs. 5,000/- or in default to undergo simple imprisonment for two months under Section 304A of the Penal Code and to pay a fine of Rs. 500/- or in default to undergo simple imprisonment for 15 days under Sections 134(a) and (b) of the Motor Vehicles Act. The facts which are material for deciding this revision application are as under:

(2.) The learned Magistrate explained the substance of accusation to the applicant who pleaded not guilty. Hence, he was put on trial at which prosecution examined in all 9 witnesses in its attempt to bring home guilt of the applicant. The applicant examined one witness in defence. After considering the prosecution evidence in the light of the defence of the applicant that it was victim herself who was at fault, the learned Magistrate came to hold the applicant guilty and convicted and sentenced him as aforementioned. Aggrieved thereby, the applicant preferred an appeal before the Court of Sessions, who dismissed his appeal. This is how the applicant is before this Court.

(3.) I have heard the learned counsel for the applicant and the learned Additional Public Prosecutor for the State and with the help of both, I have gone through the entire evidence on record. PW1/Luis Anthony D'Souza is a pancha at the panchanama of spot drawn up vide exhibit 7 and the sketch prepared vide exhibit 8. He states that he was called for drawing of the panchanama on 6th August. He also admitted mat he was related to the victim. The learned counsel for the applicant, therefore, submitted that since panchanama could not have been drawn up more than two months before the actual incident and since the witness is related to the victim, his evidence is thoroughly useless. There can be no doubt that the evidence of this witnesses has these two deficiencies. As for the first, it is not necessary that every witness should be able to tell the date correctly. Therefore, merely because the witness gave the date as 6th August that in itself cannot result in rejection of this testimony. As for his being related to the victim that too cannot be a ground to reject his evidence, though the police could have taken care to ensure that an independent witness was called for performing the panchanama. The panchanama was drawn up by PW8/Head Constable Balu Jadhav. PW8/Head Constable Balu Jadhav stated that on 10/10/2008 at about 6.25 p.m., he received information about the accident and after making entry of motor vehicle accident bearing No. 172/08, he proceeded to the spot. He then states having recorded panchanama of spot. He states that PW2/Ravindra Wadiyar and PW7/Arvind Menezes, who were eye-witnesses to the incident had told him about the accident. The panchanama at exhibit 7 however makes no reference to the presence of these two persons. However, the report given by PW8/Head Constable Balu Jadhav at exhibit 21 refers to the names of PW2 and PW7. Though, the learned counsel for the applicant had a serious objection to the reliance placed on the evidence of PW8/Balu Jadhav, there is no reason why PW8/Balu Jadhav should be preparing a false panchanama in order to implicate the applicant.