STATE THROUGH PUBLIC PROSECUTOR Vs. JANU GAWADE

JUDGEMENT

(1.) THIS is State's Appeal against the acquittal of the accused under Sections 279, 377 and 304A I.P.C., by Judgment dated 25.08.2004, of the learned J.M.F.C., Panaji. A fatal accident took on 03.03.2001, at about 13.20 hours at a place which is commonly known as Ribandar, Cause way between the KTC Mini bus No. GA 01/X 0185 driven by the accused and a Trax Jeep bearing No. GA 01/C 1016, driven by Jose Gomes, who died subsequently when he was taken in the hospital. The said Jose Gomes, at the relevant time was returning after collecting about eleven children and some marble slabs. The KTC bus was proceeding from Ponda to Panaji, while the said Trax Jeep was proceeding from Panaji towards Ponda. In other words, the accident took place whilst both the vehicles were moving in opposite direction.

(2.) AFTER the accident, panchanama and sketch were drawn by Head Constable Rahul/P.W.13. In support of the panchanama, prosecution has examined P.W.1/Gomes. The said panchanama and sketch when read with the evidence of P.W.1/Gomes, shows that the width of the tar road at the place of accident is about six metres and the bus was found with its back and front wheels at 1.35 metres and 1.70 metres respectively from the edge of the said road from its left hand side. There was a space of about 2.60 metres from the right back wheel of the said bus. The Trax jeep is shown on its left side and apparently there was a distance of about one metre between the front right wheels of the respective vehicles. Although both the said vehicles were moving in opposite direction, rashness was attributed to the accused as the driver of the said K.T.C. bus on the allegation that the accident had taken place whilst he was overtaking another vehicle. The case of the accused was that the accident was not caused due to his mistake. In other words, although the accused did not say it in so many words, as per the accused, the accident was caused due to the mistake of the said Jose Gomes, the driver of the said Trax.

(3.) THE learned Magistrate in acquitting the accused has come to the conclusion that the prosecution witnesses examined, gave different versions and, therefore, they could not be relied upon. Ms. Coutinho, the learned Public Prosecutor on behalf of the State has submitted that the evidence of the students, who were examined by the prosecution clearly shows that it is the accused who was overtaking another vehicle and in doing that, the accused came and gave a dash on the Trax driven by the said Jose Gomes. On the other hand, Shri Bhobe, the learned Counsel on behalf of the accused submits that it is difficult to accept the version given by the said prosecution witnesses that they had seen the accused overtaking another vehicle consideting the number of them, who were packed in the said Trax and further considering that they were all returning from school and might have been busy, talking amongst themselves. Learned Counsel Shri Bhobe further submits that none of the said witnesses have deposed in what manner the Trax itself was bring driven, and therefore, their description of the bus being driven in a particular manner without description as to how the Trax, in which they were traveling, was being driven, cannot be accepted. Learned Counsel has also pointed out that the trial was conducted in a casual manner in that, one witness, who was 12 years old, was asked questions to find out whether he was in a position to understand the questions put to him but another witness of the same age, was not asked any questions.