State v Dutt [2011] FJMC 145; Traffic Case 199 of 2011 (6 December 2011)

IN THE MAGISTRATE'S COURT
SIGATOKA

Traffic Case No. 199 of 2011

STATE

V

KUNAL KRITESH DUTT

For State: PC Munsami Chetty.
Accused: Present - Represented by Mr. Janend K Sharma.

JUDGMENT

Introduction

The Accused is charged with 2 Counts of Dangerous Driving Occasioning Death, contrary to Section 97 (1), (2) (c), (5) (d) (8) and 114 of the Land Transport Act 1998.

First Count:

"Kunal Kritesh Dutt on the 5th day of March 2011 at Togabula, Sigatoka in the Western Division being the driver of private motor vehicle Registration Number SAI 23 drove the said motor vehicle on Queens Road Togobula in a manner dangerous to the persons, thereby occasioning the death of Dikesh Sinh S/O Natwar Singh"

Second Count:

"Kunal Kritesh Dutt on the 5th day of March 2011 at Togabula, Sigatoka in the Western Division being the driver of private motor vehicle Registration Number SAI 23 drove the said motor vehicle on Queens Road Togobula in a manner dangerous to the persons, thereby occasioning the death of Hari Dutt S/O Tota Ram"

The Law

The relevant sections and provisions of the Land Transport Act 1998 that the prosecution relied upon in charging the accused are as follows:

"97. - (1) A person commits the offence of aggravated dangerous driving occasioning death if the person commits the offence under subsection (2) in circumstances of aggravation.

(2) A person commits the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle –

(c) in a manner dangerous to another person or persons.

(5) For the purposes of this section, the circumstances in which a vehicle is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following –

(d) the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact;

(8) A person who commits an offence under subsection (1), (2), (3) or (4) is liable on conviction to the prescribed penalty.

114. - (1) The penalties prescribed in the third column of the Schedule are prescribed as the maximum penalties for offences against the sections of the Act respectively mentioned.

(2) Where the prescribed penalty is shown by "$..../..... months" or similar, the court may impose a fine up to the maximum amount shown or a term of imprisonment up to the maximum period shown or both such fine and such imprisonment.

(3) Where the prescribed penalty includes disqualification, subsections (2) and (3) of section 59 apply.

(4) Where the prescribed penalty includes demerit points, subsections (2) and (3) of section 88 apply."

The essential elements of the offence of occasioning death by dangerous driving which the prosecution is to prove in order to prove the charge are that:

a. the accused,

b. drove a motor vehicle,

c. in a manner which was dangerous to the public, and

d. caused the death of another.

Justice Goundar in State v Ganesh [2009] FJHC 207; HAM030.2008 (17 September 2009) stated that:
"The High Court has not changed what has been the longstanding law on dangerous driving causing death in Fiji. This is evident when the case of Ajnesh Kumar was taken on appeal to the Court of Appeal (Kumar v. State Criminal Appeal No. AAU0014 of 2002S).
Judge Goundar went on to state that the Court of Appeal said:

"In Fiji the decision in Sambhu Lal v. Regina Fiji Court of Appeal Criminal Appeal No. 49 of 1986 having analysed the law followed the English decision in R v. Gosney [1971] 3 All ER 220 (the law in England then being the same as in Fiji). At p.224 of Gosney it was stated:

"In order to justify a conviction there must be not only a situation which viewed objectively was dangerous but there must also have been some fault on the part of the driver causing the situation."

"The Court in Gosney went on to note that the fault involved may be no more then slight. These observations were accepted by the Court of Appeal in Fiji which accepted a summing up which included the direction:

"So long as there is fault on the part of the driver which creates a dangerous situation he can be guilty of causing death by dangerous driving and it matters not whether the driving was careless, dangerous or reckless"."

The Court of Appeal also said:

"Mr. Singh submitted that the judge in the High Court was wrong in stating that a person who drives carelessly also drives dangerously if he/she thereby causes a death.

The view of the Judge in the High Court is in accordance with the longstanding decision of this Court in Sambhu Lal v Regina, Supra which has been consistently applied in Fiji. It may be that in an appropriate case that decision could be reconsidered but this is not such a case. The findings of fact are sufficient to establish that the driving as distinct from the situation it created was dangerous."

More recently in Ram Karan v State Criminal Appeal No. AAU014 of 2007S, the Court of Appeal confirmed that the principles laid down in Gosney applied to a charge brought under section 97(2)(c) of the Land Transport Act.

Further in Ram Karan, the Court of Appeal observed:

"..... it is almost certainly well past the time when there can be a debate about this topic because the Court of Appeal of Fiji has embraced R v. Gosney [1971] 3 All ER 220, (1971) 55 Cr App R 502 with its reference to a requirement of fault."

The burden of proof in this case is on the Prosecution, the State. The Prosecution is required to prove all the elements of the charge the accused is charged with beyond reasonable doubt. If the defence establishes to the Court's satisfaction that there is reasonable doubt, then the prosecution fails.

Lord Denning in Miller v Minister of Pensions, in commenting on the proof beyond reasonable doubt stated:

"it need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable,' the case is proved beyond reasonable doubt, but nothing short of that will suffice.".

Summary of the Evidence

The Prosecution called 7 witnesses in this case.

Pw-1 was Savenaca Rakuro, who gave sworn evidence. His evidence in chief was as follows:

"owner of LM240 is Josateki Tagilaba. Recall 5th March 2011 was in Suva. 5th March I drove LM240. I drove from Suva to Lautoka. I am a Mini-van driver. Taking passengers from Suva to Lautoka. 10 passengers in vehicle. Checked vehicle before leaving Suva. I stopped at Sigatoka town.

Weather in Sigatoka was bit rainy. Time was 4pm. Stka to Nadi road was not that busy. At Vatudradra Police Post I went slowly, cones were on the road. I drove at 60 km/hr. At Lomawai Junction saw a vehicle coming to my left side. I wanted to dodge the vehicle I could not. We had an accident. A vehicle came and picked us up and took us to hospital. Left hand side of my vehicle was damaged.

The left side of the other vehicle hit my vehicle. I did not see the other driver. Reg number of other vehicle was SAI23. Other passengers in my vehicle were Taga, Jim, Timoci, Gase. I can recall these names."

Cross-examination – "Left Suva at 2pm. I arrived at Stka after 4pm. Was bit rainy. Passengers in min-van. I talked to them when we left Stka but not on the way. At Lomawai junction did not notice water cross the road. Did not go to right lane at Lomawai junction. Rough patch on the left lane as we go from Stka to Nadi. I did not avoid the patch. I went slowly on the left (my) lane. [witness shown photo] see rough patch on left lane. [defence tendered photo as DE-1] I did not pull onto right lane. I went slowly. SAI23 is colour green. Was travelling slowly at the rough patch at 60 km/hr. I was not speeding that day. Hold group 4 licence # 788900. Remember giving statement to police on 15th April 2011. Not correct I told police I am the owner of the mini-van. Can read and understand English. [line 5 – read in court – I am the owner of the mini-van]. I signed the statement. I am not the owner of the vehicle. Stka Town to Lomawai junction takes almost an hour.

I did not take evasive action as I did not want to risk lives of the passengers. SAI23 is green vehicle. Sure about that."

In Re-examination - "I stepped on the brake when I saw the other vehicle."

Pw-2 was Alesio Taga, who gave sworn evidence. His evidence in chief was as follows:

"recall 5th March 2011. Had an accident was in the minibus. Boarded bus in Stka Town Cannot recall reg # of the M/bus. M/bus driven by Save from Serua [pointed to driver – PW-1 in Court]. Was on way to Nadi. I was seated in front. At Lomawai junction saw a blue vehicle come from other side. The other vehicle came past Lomawai junction and came off road. It came and hit our vehicle my legs were locked.

I saw the driver with phone outside the vehicle. Recognize the driver [witness pointed to accused in accused box]."

Cross-examination – "I cannot recall the time M/van left Stka. Accident from ½ past 4 to ½ past 5. I did not talk to the driver in the mini/van I did not know driver personally. Can not recall noticing water running across the road. m/bus did not go to right lane. No water on the road. When we left Stka 4 man and 3 ladies – 7 people in van. That's what I know.

No re-examination of PW-2.

Pw-3 was Praveen Singh, who gave sworn evidence. His evidence in chief was as follows:

"5th March 2011 at 6pm was in my garage at home. Garage is 30m from Lomawai Junction. Not really sure of distance. I saw a car go at a high speed cross the junction. Heard noise of accident went to scene. Colour of vehicle cannot recall.

Car on left hand side. Minivan on right side. People of mini-van were taken out – passengers in car, still there.

Cross-examination – "did not see actual collision. 80km is the speed limit. Water running at the Lomawai junction. It created a dangerous situation. The speed of the car was such it cannot be controlled. Garage is from here (ct) to gate of the stadium. Time of accident around 5.30 to 6pm. Not really sure. At that time came out of garage and checking one engine. Only had a glance of the car go by and then sound of accident. Do not recall colour of car. Did not notice # of passengers in the car.

In Re-examination - "one white van behind the car of accused. Crossed the water on the road.

Pw-4 was Jai Singh, who gave sworn evidence. His evidence in chief was as follows:

"live in Lomawai (Togobula). 5th March 2011 between 6.30 to 7pm was at mandir picking up flowers to pray. Temple is 1 to 1 ½ Chain from Main Highway. View to main highway is clear can see clearly all vehicles. Car – Nadi to Stka. Van- Stka to Nadi. Car came 6-7 inches water on the road. Car splashed water on the w/screen and car went out of balance. Car went right and left. Mini-van also went left and right then accident happened. I saw car first. When I saw white van it was on left lane. Car and van collided. Car on right side. Van on left side on center lane.

Cross-examination – "water on the road that day – lot of water. It was quiet dangerous for vehicles. After bend then you see the water (Nadi to Stka Side). Water went onto glass. The vehicle went zig-zag. Driver lost control. Due to the water. Mini-van was left. Then right left – right, then accident. After accident drains dug on side of road. If drains before then no accident would have happened. Water went on w/screen. Time of accident 6.30 to 7pm.

In Re-examination - "other vehicles crossed that water. They went safely."

Pw-5 was Sunny Narayan, who gave sworn evidence. His evidence in chief was as follows:

"recall 5th March 2011 went to Ltka to a funeral we took SAI23 left Ltka around 4pm from Stka. Driver was accused. Other passengers were Hari Dutt, Dikesh and myself. On our way we stopped at Nadi Club. Myself and Dikesh had beer.

We stopped on top of hill near Lomawai junction. Stopped 1km from Lomawai junction. One vehicle in front of our vehicle. A bus slowly going. Gave us signal to overtake. I saw signal. I asked accused to overtake and we went smoothly. Not sure of distance where he overtook.

I have a valid d/licence. Groups 2,3,4 and 8. Speed of accused was about 70 to 80 km/hr. Not really sure. At Lomawai junction pool of water on left lane. Accused avoided. Car slipped Mini-van on other side. That's all I remember of accident."

Cross-examination – "M/van was on middle of the road. The water was crossing the whole h/way. I saw m/van in middle of the road. I said something to accused. I told accused that M/van is coming on top of us try and save us. Accused tried to save the vehicle. m/van hit us within seconds. The m/van caused the accident. Donot recall # of M/van. Not sure of time of accident. It was not Kunals fault."

In Re-examination - " M/van was about 100m from us in middle of road."

Pw-6 was Sgt 1458 Peni Bale, who gave sworn evidence. His evidence in chief was as follows:

"31 years in Police Force. Traffic officer in-charge. Recall 10th March 2011 interviewed accused. Shown c/interview (Q.8 on wards read in Court) – [PE-1 C/Int of accused]

2 vehicles at scene. Could not be separated. The investigating officer was there. No water at that time. We were at place where there was no water."

Cross-examination – "accused told me m/van caused the accident. Accused told us about the water on the road. I arrived at the scene 1 hour later. Had to call crime writer and traffic writer. Appox arrived at 6.30pm. had rained early in the day.

No re-examination of PW-6.

Pw-7 was Const 3782 Rohit, who gave sworn evidence. His evidence in chief was as follows:

"4 years in traffic in Stka. 5th March 2011 recall received report from Lomawai. I attended. I saw m/van and car. LM240 and SAI23. I was at Vatudradra when I received report. After 3 mins I was at scene. I met the drivers. M/van driver was also there. Injured people were transported to hospital.

I made sketch plan of accident (witness – ID the plan) [pointed to point of impact – is the lane towards Nadi temple side.] 0.9m from other road side. Both were on temple side of road. After witnesses statement got to know which way they were travelling. [PE-2 – Medical Report, PE-3 Medical Report] made fair sketch and keys. [PE-4 – Rough Sketch, PE-5 – Fair Sketch and PE-6 Keys].

I was the investigating officer. After receiving the caution interview was instructed to charge the accused. [PE-7 – Charge Statement]"

Cross-examination – "time of accident appox 6pm. Took names of m/van passengers. 9 passengers in m/van. Did not take their statements. Only 1 statement from front seat passenger. Decided to take only 1 witnesses statement from m/van. All passengers were witnesses. Had to locate the witnesses. Transferred to Nadi and Ltka. Details taken down by Nadi and Lautoka officers. Only names taken down by police not addresses.

Point of impact. Not determined by witnesses. Did not take account of what witnesses had to say. Did not say what witnesses might say. Not present at scene, came after collision. It was dark. Did not notice water. Did not measure from temple driveway to alleged point of impact. Did not measure from the bend to collision site.

Had found the vehicles had turned around. Found vehicles in left lane going from Stka. Must be collision and vehicles spun and moved. Width of lane is about 3.5m. Do not know width of each vehicle. Not possible vehicles swung and ended on left lane. Driver of m/van was not charged. Instructed by Divisional Traffic Officer to charge accused. Accused has maintained accused not at fault."

No re-examination of PW-7.

With Prosecution and Defence Counsels consent the vehicle examiners report and photos were tendered.

The accused gave sworn evidence. His evidence was as follows:

"work for Fijian Resort. IT Technician. Recall 5th March 2011. 11.30 That day at Nads Shop. Waiting for Dikesh to go to funeral in Ltka. Left for Ltka at about 11.50am. We attended the Lovu Cemetery in Ltka. After funeral we went to Ltka Club. We reached at 1.30pm. Police interviewed me. at Q.9 recall telling we reached Ltka Club at 1.30pm. Police made a mistake. Left Club around 4.30pm. Sunny's idea to go to Lautoka Club. I was with father, Dikesh and Sunny Narayan. Dikesh, Sunny and Dad had few beers.

At 4.30 we left for Nadi. I was not drinking. I was driver. Left Nadi at 4.30pm. we stopped at Nadi to fuel up. Dikesh called his friends wanted to go to Nadi Club to meet his friends. We went to Nadi Golf Club. Sunny and Dikesh decided to go to Nadi Club. At Nadi Club I went to have lunch. Dikesh, Dad and Sunny had few Beers. Nadi Club is behind Prouds in Town. Left Nadi at around 5.45pm. I drove the car. Recall the accident.

Left Nadi Club. I drove at Korovuto Shop Dad brought Chicken. From there I drove at road there was water. Because of rain we were going slowly. Normal day. At Ciriwai junction Dikesh and Sunny wanted me to pull over they wanted to go and relieve. I stopped the car we 3 went out. Dad did not go out. Took us 7 minutes. Just as I drove at about 20km/hr saw a bus behind us. Bus was fast. I slowed down. Bus overtook us. I was about 20 km/hr.

I went slowly at Adi's handicraft, Lomawai Road. Bus dropped passengers and came onto road. Bus signaled to me to clear. Sunny told me road clear. I overtook bus. Speed at that time 75-80 km – overtook bus. I was on my lane at Lomawai junction I slowed speed. I was to turn bend. At junction speed was about 60-65 km. At the bend I saw water on my side was flooded. I went slightly to right side. So that water I could avoid the water. [Photo of bend – I took photo – marked A where I saw pool of water] water was on road was well. On my side of road all water over it.

Saw water on bend. Went slightly to other side. As soon as I went past bend I saw m/van on my lane. Water flowing from other side onto vans lane. Across the road marked B in Photo.

Lot of water [DE – Photo] saw m/van on my side I tapped the break water present my vehicle pulled to right side, I moved the steering. The m/van came to my lane. m/van hit my vehicle on passenger side. Our vehicles turned I was unconscious for few minutes. Vehicles were across both lanes. Collision took place almost near the middle of the middle of the road. [DE-3 Photo vehicle of accused, DE-4 Photo vehicle of complainant] DE-1 taken from Stka end facing Nadi. Rough patch on road – left lane. I took photos. When I went to take photos because of rough patch people (drivers) avoided the patch and came on the other lane. [DE-5 to DE-8 – Photos]

Vehicle going on opposite lane when vehicles approach the bad patch. [shown rough sketch – do not agree with rough sketch]. Not showing right plan. When took father out after 40 minutes vehicle was not even like this as per rough sketch plan. Vehicles were across. No space on right side. Traffic had stopped. Not possible to stop traffic according to sketch. As left lane was empty. My lane was left lane. m/van on my lane. Vehicles collided and I went to his side. Vehicles went side ways. [DE-9 – Photo of position of vehicles as per accused] damage to corner of each vehicle.

Police did not take my version before drawing sketch plan. After collision few minutes was unconscious. After consciousness saw father on dash board. Saw Dikesh down wards. Sunny was thrown up. Pulled my seatbelt. Vehicles were sideways. Saw one small girl on the road. Called friend from Kabisi at Foodhall to help me take people to hospital. He was at Olosara. He told me will send staff.

I called kaka (neighbour) to tell my mum. They said they will come. People came took photos. Nobody helped. Opened Sunny's door took Sunny out. He was on top of Dikesh. Sunny was put on road, took Dikesh out. People helped. Could not open front door to take father out. Tried to call Fire Brigade – Scotty. They said they will come. Tried to get help. Smoke from car. Tried to break car. 30-40 minutes later someone got hammer to break door. They broke seat and door. After Dikesh and Sunny out saw police after 10-15 minutes. Collision took place between 5.45 and 7pm. We loaded Sunny and Dikesh to hospital. Helped father after 40 minutes took father. Loaded in truck to hospital (Nadi).

On the way vehicle overheated near Pine forest. Vehicle was changed. Loaded from lorry to van went to Nadi Hospital. Unloaded father went with him was told he is dead (Doctor told me). also saw Dikesh was told he was dead. I did not run away from scene. I did not run away from hospital. I received attention at Private Doctor as Nadi Hospital did not treat me. They were attending to others. Had received injuries to chest, muscles, right wrist was damaged. Left elbow was damaged. Airbag hit face. Came to Stka Police myself day after accident. Police were saying things to me. had injuries was told by Doctor to rest.

Was interviewed after Fathers funeral. My condition the was mentally prepared after and best friend passed away. Physically had injuries. Collision that day was not my fault. I was not responsible for collision. Reason for collision was m/van, road condition and weather. I was not speeding. 1st pool of water – 65km/hr. I was at good speed to negotiate bend. Overtook bust at 75-80km/hr. At bend I slowed down.

Cross-examination – "did not allow bus to overtake before Lomawai junction. I overtook bus down Lomawai road. Did not overtake bus and have collision. Bend at junction towards Stka. Saw white lines on middle of road. Saw water on my lane. I applied my brakes – slowed down so that it did not go in the water. Went to Ltka Club also went to Nadi Club. Aware of road from Stka to nadi. Have d/licence. Used to driving SAI23. when left Nadi raining. As prudent driver to be careful whilst driving. Was interviewed by Police – Stg Peni at that time incident fresh in mind. I was in shock did tell whatever I knew. While negotiating bend drove around 65 km/hr. driving since 4 years.

At 65 km could stop if road not wet. Passenger side of both vehicles bumped. m/van came on my lane if I did not brake or avoid could be head on. When I applied brakes vehicle slipped to right side. I was able to control my speed. Took photos of scene after accident. Long stretch after bend. Can see far after bend. Was not speeding. Did not drive dangerously. After accident 1 empty and 1 sealed bottle in car. Cannot stop before pool. Just went slightly to right to cross pool of water. Went slightly to right not right lane. Had 1st sight of m/van after bend was about 8 metres then braked. Saw m/van applied brake car slipped.

In Re-examination - "not raining all way Nadi to Stka. Stopped raining around Nabou Pine. Was driving carefully that day. Did not drink alocohol that day. Did not exceed national speed limit."

Analysis of the Law and the Evidence

At the outset it would be correct to point out that there is no dispute between the prosecution and the defence:

(a). that the accused was the driver of vehicle registered as SAI23,

(b). 2 persons, namely Dikesh Singh and Hari Dutt died as a result of the collision between SAI 23 and LM240,

(c). accident happened at Togobula, Sigatoka,

(d). accident happened on 5th March 2011.

The main issue for the Court to determine is whether the accused drove in a manner dangerous to another person or persons, and caused the death of Dikesh Singh and Hari Dutt.

The prosecution called 7 witnesses. The accused gave evidence in his defence. The Court noted all the evidence and the documents that were tendered in this Court.

This is a sad case where the accused lost his father and a friend. The Court is to determine this case as per the evidence that it has heard in Court and not on emotion or otherwise.

PW-1 and PW-2 were the driver and front seat passenger of the mini-van – LM420. The material evidence for (PW-1) was

"I drove at 60 km/hr. at Lomawai Junction saw a vehicle coming to my left side. I wanted to dodge the vehicle I could not. We had an accident. The left side of the other vehicle hit my vehicle. Did not go to right lane at Lomawai junction. Rough patch on the left lane as we go from Stka to Nadi. I did not avoid the patch. I went slowly on the left (my) lane. I did not take evasive action as I did not want to risk lives of the passengers.

For (PW-2)

"I was seated in front. At Lomawai junction saw a blue vehicle come from other side. The other vehicle came past Lomawai junction and came off road. It came and hit our vehicle my legs were locked. Can not recall noticing water running across the road. m/bus did not go to right lane. No water on the road."

PW-1 and PW-2 were eye-witnesses to the accident.

As to the evidence of PW-3 - Praveen Singh, this Court does not give much credence to his evidence for the following reasons: (a) he did not see the actual collision, (b) he did not positively and definitely identify the accused's vehicle as the one that he saw drive fast past his garage, and (c) he only had a glance of the vehicle.

From the evidence of Pw-4 - Jai Singh, the Court notes the following

"Car splashed water on the w/screen and car went out of balance. Car went right and left. Mini-van also went left and right then accident happened. I saw car first. When I saw white van it was on left lane. Car and van collided. Car on right side. Van on left side on center lane

Only had a glance of the car go by and then sound of accident. Do not recall colour of car. Did not notice # of passengers in the car. Water went onto glass. The vehicle went zig-zag. Driver lost control. Due to the water. Mini-van was left. Then right left – right, then accident."

Taking the evidence of PW-4 in relation that of the accused, who was the driver of SAI23 the Court finds from the evidence of the accused that he never mentioned in evidence that water was splashed onto the windscreen and the car went out of balance. Even that is not stated by PW-5. In fact the accused stated

"At the bend I saw water on my side was flooded. I went slightly to right side. So that water I could avoid the water. Saw water on bend. Went slightly to other side. As soon as I went past bend I saw m/van on my lane. Water flowing from other side onto vans lane."

The Court also does not also give much credence to the evidence of PW-4 as his evidence is inconsistent as regards the circumstances leading up to the accident.

The evidence of PW-5 Sunny Narayan, a passenger in the accused's vehicle in examination in chief, is that "At Lomawai junction pool of water on left lane. Accused avoided. Car slipped Mini-van on other side. That's all I remember of accident." Then in Cross examination he stated

"M/van was on middle of the road. The water was crossing the whole h/way. I saw m/van in middle of the road. I said something to accused. I told accused that M/van is coming on top of us try and save us. Accused tried to save the vehicle. m/van hit us within seconds. The m/van caused the accident."

PW-5 was a passenger with the accused. He himself he had been drinking that day before the accident. He had visited 3 clubs and had beer. He had been drinking with the other two deceased persons. While there is no clear evidence how much he had drunk that day and what was his level of intoxication. The Court having noted that he had been drinking is reluctant to give much weight to his evidence. PW-5's evidence is treated with caution for the fore-going reason.

The material evidence of PW 6 and PW-7, the Police Officers, who caution interviewed the accused and was the investigating officer, respectively were independent and truthful account. They were not discredited in their evidence in Court. PW-7 was at the scene about 3 minutes after the incident. This has not been disputed or challenged. He was not discredited in any way in cross-examination. He drew the rough and fair sketch plan of the scene of the accident. He also marked the point of impact of the accident in his sketch. He truthfully mentioned that did not consult anyone. While it is a practice in accident situations to consult the drivers of vehicles to sight and sign the plan. It is understandably in this circumstance why this was not done. This was a graphic accident where passengers were stuck in vehicles and then transported to hospital. It might not have been possible in these circumstances to expect PW-7 to get them to highlight the point of impact. Even the accused had left with his father to the hospital. PW-6 and 7 were truthful and the Court believes their evidence.

The point of impact noted by PW-7 is on the lane LM240 was travelling. Both PW-1 and PW-2 gave evidence that LM240 did not go to the right lane. The evidence of the accused is

"At the bend I saw water on my side was flooded. I went slightly to right side. So that water I could avoid the water. Water was on road was well. On my side of road all water over it. Saw water on bend. Went slightly to other side. As soon as I went past bend I saw m/van on my lane. Water flowing from other side onto vans lane.

Lot of water. Saw m/van on my side I tapped the break water present my vehicle pulled to right side, I moved the steering. The m/van came to my lane. m/van hit my vehicle on passenger side. Our vehicles turned"

From the accused's evidence the Court notes that the accused does not deny he slightly turned to the right at the bend and then he braked and his vehicle pulled towards the right. From the accused's evidence he did not only go slightly towards the right after he braked he went right again. The right side the accused refers is towards the lane on which LM240 was travelling. Then in cross examination the accused stated

"Cannot stop before pool. Just went slightly to right to cross pool of water. Went slightly to right not right lane. Had 1st sight of m/van after bend was about 8 metres then braked. Saw m/van applied brake car slipped."

The Court has noted the photos and the sketch that were tendered as an exhibit by the Prosecution. From the sketch, the photos and the evidence of the witnesses in Court and the positioning of the vehicles the Court finds that the accident took place on the left lane, lane on which LM240 travelled. The accused who was the driver of SAI23 went onto that lane where the accident occurred. The Court believes PW-1 and PW-2 that their vehicle did not go to the right lane, or the lane in which SAI23 was travelling. It was the accused's vehicle that came onto the wrong lane as is depicted by the sketch and point of impact and PW-1 and PW-2. PW-7 has no reason to mislead the Court.

The accused's version that the vehicles turned and were sideways is in complete contrast to the version of PW-7. The Court from the sketch notes that the vehicles had turned but not as stated by the accused. On this issue the Court accepts PW-7's drawings and evidence.

The Court has noted the numerous photos tendered by the Defence in Court about the bad patch whereby it shows other vehicles in photos taken later avoiding the patch. The Court has carefully considered this evidence and the photos and in considering all the evidence in this case finds that LM240 did not go onto the other lane or cause the accident. A later visualization depicting what other vehicles do does not for ceratinity give credence as to what LM240 did or did not do that day. This can only be judged from the witnesses evidence and the Court accepts the version of PW-1 and PW-2, together with the sketch of PW-7 and his evidence after arriving at the scene 3 minutes after the accident.

The accused in his evidence blames the mini-van, weather and the road condition for the collision. The Court from the evidence finds that it was the accused who caused the accident by going onto the right lane, which was the oncoming traffic lane. From the evidence The Court finds that the accused tried to avoid the water and went onto the other lane where the accident occurred. The accused driving fell below that of a competent and prudent driver. From the evidence the Court finds that neither the Mini-van, the water or the road condition caused the collision. The Court from the evidence finds that the collision was caused after the accused went onto the opposite lane, which is the lane for the on-coming traffic. By going onto the other lane the accused caused the accident and the accused's standard as a driver fell below that of a competent and prudent driver. By going onto the other lane the accused was at fault, he created a dangerous situation. The dangerous situation caused the accident.

The Court is satisfied on the evidence before it beyond reasonable doubt that the prosecution has proven the 2 Counts of Dangerous Driving Occasioning Death against the accused.

The accused is found guilty of the 2 Counts of Dangerous Driving Occasioning and convicted as charged for both the counts. The Court will now hear the accused's mitigation.

6th December 2011

Chaitanya Lakshman
Resident Magistrate