N THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No 319 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- ASHOKBHAI MAKANBHAI PATEL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Revision Application No. 319 of 2003 MR MUKESH H RATHOD for Petitioner No. 1 MR PY DIVYESHVAR for Petitioner No. 1 Mr S S Patel, APP for Respondent No. 1 -------------------------------------------------------------- CORORAM : HON'BLE MR.JUSTICE D.P.BUCH Date of decision: 01/10/2003 ORAL JUDGMENT The present revision application has been filed under section 397 read with section 401 of the Criminal Procedure Code, 1973 (for short, 'the Code') challenging the judgment and conviction order recorded by the learned Judicial Magistrate First Class, Navsari dated 11.3.1997 in criminal case No.10502/95 whereby the learned Magistrate convicted the present petitioner for offence punishable under sections 279 and 304A of IPC while acquitting the petitioner from offences punishable under sections 177, 184 and 134 of the Motor Vehicles Act. For offence punishable under section 279 of IPC, the petitioner was sentenced to suffer R.I. for two months and was directed to pay fine of Rs.500/-. In default of payment of fine, he was required to undergo further imprisonment for 10 days. For offence punishable under section 304A of IPC, the petitioner was sentenced to suffer R.I. for three months and he was required to pay fine of Rs.1000/-. In default of payment of fine, he was required to undergo further imprisonment for 20 days. 2. Feeling aggrieved by the said judgment and conviction order of the trial court, the petitioner preferred criminal appeal No.6/97 before the Sessions Court at Navsari. The learned Addl.Sessions Judge at Navsari dismissed the said appeal of the appellant by judgment and conviction order dated 21.4.2003. Feeling aggrieved by the said judgment and order of the Sessions Court at Navsari, the petitioner has preferred this Revision Application before this Court. It has been contended that there was no material before the trial court to show that the petitioner was driving bus rashly and negligently at the relevant point of time and yet the two courts below have convicted the petitioner illegally. That therefore, the judgments and conviction orders are illegal and deserve to be set aside. 3. On receiving the revision application, notice was issued and in response to the service of notice, Mr S S Patel, learned APP has appeared on behalf of the State. I have heard the learned Advocate for the petitioner and the learned APP for the State. They have taken me through the entire evidence on record. It is the case of the prosecution that on 27.9.1995, the petitioner was driving the bus and in the process the bus dashed against the deceased boy and it also dashed against Sarojben, causing them injuries. The deceased sustained grievous hurt on account of the said dash and on account of the injuries sustained by him he died on the spot itself. Therefore, FIR was filed and the petitioner was arrested, investigation was undertaken, charge sheet was filed and the charge was framed against the petitioner. The peitioner did not plead guilty and, therefore, evidence was recorded. At the end of the evidence, further statement of the petitioner under section 313 of the Code was recorded. Arguments were heard and at the conclusion of the trial, the learned Magistrate found the petitioner guilty for the aforesaid offence and imposed the aforesaid punishment on him. Feeling aggrieved by the said judgment and conviction order, the petitioner preferred the appeal as aforesaid unsuccessfully. These facts are not in dispute. 4. Now so far as the evidence is concerned, the prosecution has examined Sarojben at Exh.5 and Anilaben at Exh.6. Sarojben happens to be mother of the deceased boy who was aged about 6 to 7 years. She has clearly deposed that the boy was accompanying her on the road and the bus came from the back and dashed against the boy as well as her also. She also fell down and she was unconscious. The boy who had fallen on the road was run over by the rear wheel of the said bus. An attempt was made to show that according to the evidence of this witness, the bus was not going in a high speed. Speed may not be material in all cases. The point is that a boy of 6 to 7 years was going on road and the petitioner was required to take care of the boy going on the road, while driving. The boy and his mother Sarojben both were going on extremely left hand side of the road. She has further deposed that on account of the dash by the bus, she had fallen on the road and in the process she has dashed against the wall at the left hand side of the road. This shows that she was very close to the left hand side of the road. It therefore, cannot be said that the bus had dashed against the boy when the bus was running on the middle of the road or on the wrong side of the road. An attempt was made to argue that the said witness has deposed before the trial court that it is not true that she has stated in her statement before the police that the boy had fallen on the ground on receiving a dash from the bus. However, there is also evidence of Anilaben at Exh.6 who was almost following PW 1 Sarojben at exh.5. This witness has completely supported the case of Sarojben and, she has also deposed that Sarojben and the deceased boy both were going ahead of her and the bus came from the backside and had dashed against the boy who was going by the side of Sarojben. It is significant to note that the learned Advocate for the petitioner before the trial court did not find it proper to cross examine PW 2 Anilaben, Exh.6. In other words, the evidence of Anilaben has remained unchallenged on record. Therefore, there would be no reason to reject the testimony of Anilaben Exh.6 which is uncontroverted and unchallenged. Then there is evidence of PW 3 Chhotalal at Exh.7 who saw the accident from his house and he rushed to the spot. PW 4, Kasambhai at Exh.10 is the Conductor of the bus from whose evidence it is proved that the petitioner was driving the bus at the time when the accident took place. This witness has deposed in cross examination that he did not know as to how the accident took place. At the same time, the witness has also deposed in the cross examination that the deceased boy was not run over by the wheel of the bus. If he had not seen the accident as per the cross examination, then it is not clear as to how he had deposed before the trial court in cross examination that the deceased boy was not run over by the rear wheel of the bus. 5. It is required to be considered that this Kasambhai and the petitioner were both serving under one employer and, therefore, he might have come forward to render some support to the petitioner. Any way, his evidence supports the case of the prosecution on the point that the petitioner was driving the bus at the relevant point of time and that the dead body of the said boy was found near the rear wheel of the bus and at that time, the boy had received grievous hurt on his head. Then there is evidence of Panchas and Police Officers. The above evidence makes it clear that the boy was run over by the rear wheel of the bus driven by the petitioner. This shows that the petitioner did not take care to avoid any accident being occurred. The two courts below have properly appreciated the evidence on record and, therefore, no illegality has been shown in appreciation of evidence. When the evidence has not been appreciated illegally and when there is no infirmity in the appreciation of evidence, it would not be possible for this court to interfere with the judgments and conviction orders recorded by the courts below particularly when the two courts below have rendered concurrent findings of fact. 6. For the foregoing reasons, I find no substance or merit in the present revision application and the same deserves to be dismissed. This Revision Application is accordingly dismissed. Notice discharged. [D P Buch, J.] msp