CR.A/941/1998 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 941 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE J.C.UPADHYAYA ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== STATE OF GUJARAT - Appellant(s) Versus AMBALAL MOHANLAL PATEL - Opponent(s) ====================================== Appearance : MR MR MENGDE, APP for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1, ====================================== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 07/03/2008 ORAL JUDGMENT The State of Gujarat preferred this appeal under section 378 CR.A/941/1998 2/8 JUDGMENT of the Code of Criminal Procedure [for short 'the Code'] challenging the legality and validity of the judgment and order passed by the learned Metropolitan Magistrate, Court No. 12, Ahmedabad [for short 'the learned Magistrate'] dated 2/9/1998 in Criminal Case No. 730 of 1992. The learned Magistrate by virtue of the impugned judgment and order acquitted the respondent – accused for the offences punishable under sections 279, 304(a) and 427 of the Indian Penal Code [for short 'the IPC'] and sections 119, 177 and 184 of the Motor Vehicles Act [for short 'the MV Act']. 2. The case of the prosecution, in short, is as under :- 2.1. It is the case of the prosecution that on 20/4/1992 at about 5.30 a.m., the accused was driving a bus belonging to Ahmedabad Municipal Transport Service bearing registration No. GJ-1T-7507. That the accident occurred near the area called Victoria Garden Circle. That at that time, complainant – Bheraji Taraji and deceased Jivaji Ukaji were proceeding on their bicycles for the purpose of purchasing vegetable. That it is the case of the prosecution that at that time the accused driving the aforesaid bush rashly and negligently and with full speed, dashed his bus with the cycle of deceased Jivaji Ukaji, deceased fell on the road and he sustained serious bodily injuries and died on the spot. That initially bus did not stop and, therefore, he shouted loudly and thereupon the driver of the bus stopped the bus, but the driver fled away. Original complainant Bheraji Taraji lodged the FIR In connection with this offence before the police. Police recorded statements of witnesses, prepared necessary panchnamas and after receiving P M report of the deceased, the police filed charge-sheet for the aforesaid offences in the Court of the learned CR.A/941/1998 3/8 JUDGMENT Magistrate. 2.2. As the accused did not plead guilty, the prosecution adduced its oral and documentary evidence. After completion of the evidence, the learned Magistrate recorded further statement of the accused under section 313 of the Code wherein the accused generally denied all the allegations levelled against him including the fact that at the time of accident, he was driving the bus. The learned Magistrate, after considering the evidence on record and after hearing learned counsel representing both the parties, delivered the impugned judgment and order and was pleased to acquit the accused from the offences aforesaid. 3. Mr. Mengde, Ld. APP for the appellant – State during the course of his arguments submitted that the prosecution squarely proved its case beyond reasonable doubt against the accused. That the learned Magistrate erred in not properly appreciating the oral and documentary evidence on record and seriously erred in coming to the conclusion that the identity of the accused as driver of the bus in question is not established. That considering evidence of the witnesses, including the complainant, it is proved that at the time of accident the accused was driving the bus and that he was driving it rashly, negligently and with full speed and on the wrong side of the road and he caused the accident. Therefore, it is submitted that the impugned judgment and order passed by the learned Magistrate be set aside and the respondent accused be punished for the offences punishable under sections 279, 304(a) and 427 of the IPC and sections 119, 177 and 184 of the MV Act in accordance with law. 3.1. None appeared for the respondent – accused. CR.A/941/1998 4/8 JUDGMENT 4. I have gone through the record of the trial Court. The deposition of the complainant Bheraji Taraji was recorded at exh. 4. During the course of his deposition he produced the FIR at exh. 5. The deposition of Panch – Pratapji Ramaji was recorded at exh. 9. He was examined in connection with panchnama of the scene of offence exh. 10. The deposition of witness Ranchhodji Ukaji was recorded at exh. 11. The prosecution examined witness Ramaji Bheraji at exh. 12. The deposition of Investigating Officer [IO] PSI Pratapji Sendhaji was recorded at exh. 13 and in his deposition he produced the inquest panchnama and also post mortem report. No more oral or documentary evidence was adduced by the prosecution. 5. Before the evidence adduced in this case by the prosecution is again appreciated by this Court, it would be necessary to consider the following principles established by the Hon'ble Supreme Court in the case of Chandrappa V/s. State of Karnataka reported in (2007) 4 SCC 415 :- “(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “distorted conclusions”, “glaring mistakes”, etc., are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to CR.A/941/1998 5/8 JUDGMENT emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not be disturbed by the appellate court.” 6. Now in light of the above referred principles established by the Hon'ble Supreme Court in the case of Chandrappa v/s. State of Karnataka [supra], if the oral evidence adduced by the prosecution in this case is re-appreciated and simultaneously the impugned judgment and order delivered by the learned Magistrate is considered, it clearly transpires that the learned Magistrate rightly came to the conclusion that the prosecution failed to prove beyond reasonable doubt that at the time of accident the accused was driving the bus. As stated above, in connection with the accident the FIR was lodged by the complainant – Bhreaji Taraji before the police, which is produced at exh. 5. Considering the FIR, no-where the name of the accused is mentioned as driver of the bus which caused the accident. As per the FIR, after the accident initially the bus did not stop and thereupon the complainant shouted loudly and after covering some distance the bus stopped but the accused fled away. Even considering the FIR the complainant stated that at the time of CR.A/941/1998 6/8 JUDGMENT accident, he was proceeding ahead on his cycle and the deceased was much behind him on his own cycle. Therefore, the bare reading of the FIR will reveal the fact that the complainant must not have seen the actual occurrence of the accident in the sense that the accident took place behind him. Now in this connection, considering the deposition of the complainant – Bheraji Taraji exh. 4, about the accident he stated that the bus came on the wrong side of the road with full speed and dashed with the cycle of the deceased Jivaji; that the deceased died on the spot. In his deposition he stated that he had seen the accused at the place of occurrence. He stated that in his complaint he had stated before the police that the driver was Ambalal Patel [accused] and that he knows the accused. As stated above, in the FIR no such facts are mentioned by him. Even in his cross-examination on behalf of the accused, he admitted that in his FIR he has not given the name of the accused as driver of the bus. In his cross-examination he also admitted that at the time of accident he was on his bicycle much ahead of the deceased and the deceased was coming on his own bicycle behind him. Under such circumstances, it becomes clear that he must not have seen the actual occurrence of the incident. 7. Considering the panchnama exh. 10, it is stated that the bus was parked on the road approximately at the distance of 3 ft. from the footpath. However, in connection with this panchnama, the prosecution examined panch – Pratapji Ramaji at exh. 9. He stated that he had seen the wheel marks showing application of brake extending approximately 3 ft in distance. In this connection, in the panchnama exh. 10 it is clearly stated that no wheel marks showing application of brake were visible on the road. In his cross-examination he admitted that police obtained only CR.A/941/1998 7/8 JUDGMENT his signature in the panchnama. The prosecution examined witness Ranchhod Ukaji at exh. 11. He also stated that one AMTS bus dashed with the cycle of the deceased and deceased died on the spot. In his deposition he admitted that he did not see the accused driving the bus and even at the time of his deposition, he could not identify the accused. Similar is the deposition of Ramaji Bheraji at exh. 12. Even he did not refer the name of the accused in his deposition in capacity as driver of the bus. He admitted that he did not know as to who was driving the bus. Moreover, he stated that the accident occurred on the footpath of the road and even after the accident the bus was parked on the footpath. Such is not even the case of the prosecution. The prosecution examined IO PSI Pratapji Sendhaji at exh. 13. It is pertinent to note that in his cross- examination he admitted that there were no wheel marks showing application of brake on the road. As stated earlier, the version of the panch witness – Pratapji Ramaji is otherwise. 8. Perusing the impugned judgment and order passed by the learned Magistrate, it clearly appears that the learned Magistrate while assigning cogent and convincing reasons and appreciating the evidence on record, came to the conclusion that not only the prosecution failed to prove its case beyond reasonable doubt that at the time of accident the driver of the bus was driving his bus rashly and negligently and with full speed, but even prosecution failed to prove beyond reasonable doubt that at the time of accident the respondent- accused was driving the bus. 9. In light of the entire above discussions, there is no reason whatsoever for this appellate Court to interfere with the impugned judgment and order delivered by the learned Magistrate acquitting the respondent – accused for the offences referred above. In the result the CR.A/941/1998 8/8 JUDGMENT appeal deserves to be dismissed. The appeal is hereby dismissed. ( J .C. UPADHYAYA, J. ) *Pansala.