Shri Marshall Cardozo vs State

N. A. Britto, J.—This revision petition is filed by the accused and is directed against Judgment/Order dated 9-8-2010 of the learned Additional Sessions Judge, Margao, by which the appeal filed by him against conviction and sentence imposed upon him by the learned J.M.F.C., Margao, has been dismissed. Heard Shri Arun Bras De Sa, learned Counsel on behalf of the Applicant/Accused and Shri C. A. Ferreira, learned Public Prosecutor on behalf of the Respondent.

The accident took place between the Maruti Esteem Car bearing No.GA-01-C-0776 driven by the accused, and the rickshaw bearing No.GA-02-T-2788, on 5-7-2006 at about 21.20 hours near Goa Co-operative Bank at Borda, Margao in which the driver of the said rickshaw, namely PW1/Peter Gracias and his daughter Ehtal Gracias sustained simple injuries while his other daughter by name Esmeralda @ Sweety Gracias, died.

The Applicant/Accused was charged and tried under Sections 279, 337, 304A I.P.C. and Section 185 of the M. V. Act, 1988 in which the prosecution had examined 12 witnesses, most important amongst them having been PW1/Peter Gracias, the driver of the rickshaw, PW3/Santosh Jadav and PW4/Ulhas Naik. The last two were coming on a scooter behind the said rickshaw driven by PW1/Peter Gracias. The evidence of both these witnesses has been relied upon by both the Courts below and I have no reason to disbelieve them either, since their evidence has been consistent except for a slight discrepancy, and otherwise no motive has been attributed to them as to why they deposed against the accused and in favour of the prosecution.

Learned Counsel on behalf of the Applicant/Accused submits that the panch witness PW2/Santosh Mahale was a witness who had stood as a panch on several occasions, and, therefore no reliance could have been placed on his evidence but that does not explain as to why no reliance could have been placed on the evidence of the Police Officer who had drawn the said panchanama. Learned Counsel next submits that the nature of the injuries on PW1/Peter Gracias shows that the accused was not driving at a fast speed. That may be partly true but the fact remains that both the Courts below have accepted the version of PW1/Peter Gracias that the accused in the process of overtaking another vehicle came towards his side of the road and dashed against him. That again, explains the damage caused in the middle of the bumper of the vehicle driven by the accused. Learned Counsel further submits that PW1/Peter Gracias by keeping his said two daughters Ehtal, four years old and the deceased Esmeralda, 5 years old sitting on the back seat of the rickshaw has contributed to the death of Esmeralda and injuries to Ehtal.

Shri C. A. Ferreira, learned Public Prosecutor submits that if such a submission is accepted by the Court then it would suppose that the accused would have a right to dash against the motorcycle driver and cause his death only because he was not wearing a helmet.

I am not inclined to accept the submission of Shri Bras De Sa. Both the children of PW1/Peter Gracias, aged four years and five years were sitting on the back seat of the said rickshaw driven by him and it is on account of the dash given by the vehicle driven by the accused that they fell out of the rickshaw which caused grievous injuries to Esmeralda and who succumbed to the same and whose death was proved by autopsy report prepared by Dr. Damodar Kantak. Therefore, it is obvious that the death of Esmeralda was due to the impact given by the vehicle driven by the accused to the rickshaw in which the deceased was seated.

The Applicant/Accused has also been convicted by the Courts u/s 185 of the M.V. Act, 1988 as he was found with alcohol in his blood more than the tolerable limits, and on that count also the conviction and sentence imposed upon the accused cannot be faulted. Considering the facts of the case, and the correct appreciation of the evidence produced by the prosecution, by the Courts below, in my view, there is no scope for interference at all in this revision petition and accordingly the same is hereby dismissed.