CR.A/740/1996 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 740 of 1996 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 CHAUHAN MOHMAD HANIF - Opponent(s) ======================================================== Appearance : MR MR MENGDE, A.P.P. for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1, ======================================================== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 08/02/2008 ORAL JUDGMENT This appeal is directed against the judgment and order passed by the ld. Judicial Magistrate First Class, Wadhwan (for short the 'ld.Magistrate'), CR.A/740/1996 2/7 JUDGMENT dated 05.06.1996 in Criminal Case No.869/1993. The ld.Magistrate acquitted the respondent – accused for the offence punishabl e under Section 279, 304-A of Indian Penal Code and Section 184, 177 of the Motor Vehicles Act. Being aggrieved by the impunged judgment and order delivered by the ld.Magistrate, the State of Gujarat preferred this appeal under Section 378 of the Criminal Procedure Code. 2. The prosecution case in nutshell is that on 24.08.1993, at about 5.30 a.m., on National Highway, near Village Baldana, vehicular accident occurred. That the accused was driving S.T. bus bearing No.GJ-1Z-2264. It is the case of the prosecution that at the time of accident, the accused was driving his bus with full speed, rashly and negligently, and dashed his bus with one Sajanbhai Rupabhai Bharvad and two cows. Sajanbhai Rupabhai Bharvad succumbed to the injuries. The accused himself reported the incidence before Police. Investigating Police Officer recorded the statement of witnesses, prepared relevant panchnama in presence of Panchas, and after completion of investigation, filed chargesheet in the Court of the ld. Magistrate. Since the accused did not plead guilty, the ld.Magistrate recorded the evidence adduced by the prosecution. The deposition of witness Khodabhai Hindubhai was recorded at Exh.3, deposition of witness Jivanbhai Rupabhai was recorded at Exh.4, deposition of Sajanbhai Chhaganbhai is recorded at Exh.12, deposition of witness Ahmedlatif Navajuddin is recorded at Exh.13 and deposition of Investigating Police Officer Bharatsinh Khumansinh Zala is recorded at Exh.14. No more witness was examined by the prosecution. During the course of evidence, the prosecution produced relevant documentary evidence. After the evidence was closed, the ld.Magistrate recorded further statement of the accused, wherein he denied the allegations levelled against him by the prosecution. After hearing arguments advanced by both the parties, the ld.Magistrate by virture of the impugned judgment and order, came to the conclusion that the prosecution failed to prove beyond reasonable doubt the CR.A/740/1996 3/7 JUDGMENT case against the accused. Ultimately, the ld.Magistrate by virtue of the impugned judgment and order, acquitted the accused. Feeling aggrieved and dissatisfied with the order of acquittal passed by the ld.Magistrate, the State of Gujarat preferred this appeal under Section 378 of the Criminal Procedure Code. 3. Learned A.P.P. Shri Mengde for the appellant State, submitted that the ld.Magistrate erred in coming to the conclusion that the prosecution failed to prove beyond reasonable doubt the case against the accused. That as a matter of fact, the case of the prosecution is supported by the testimonies of eye-witnesses. That the accident occured during the early morning, at National Highway, and except those eye-witnesses, none else was available on road. Therefore, there was no reason to discard the depositions of eye-witnesses. That the accused himself reported the accident before the police. Therefore, there is no question of any identity of the accused. The accused himself was driving the bus. Therefore, it is submitted that the impugned judgment and order passed by the Trial Court be set-aside and the accused be convicted for the offence punishable under Section 279, 304-A of Indian Penal Code and Section 184 and 177 of the Motor Vehicles Act by allowing the appeal. 4. Now, perusing the impugned judgment delivered by the ld.Magistrate, it clearly transpires that the ld.Magistrate appreciated the evidence of eye-witnesses, as well as the evidence adduced by way of panchnamas, and came to the conclusion that the prosecution failed to prove its case beyond reasonable doubt. It is settled legal position that although the Appellate Court is vested with power to re-appreciate and re-evaluate the evidence on record, generally it would not interfere with an order of acquittal, unless it is found that the judgment of the Trial Court is perverse, contrary to the material of record, palpably wrong, manifestly erroneous or demostrably unsustainable. (Ramesh Babulal Desai V/s.State of Gujarat reported in CR.A/740/1996 4/7 JUDGMENT 1996(9) SCC 225). In the case of Kaliram V/s.State of Himachal Pradesh reported in AIR 1973 SC 2773, the Honourable Supreme Court held that where two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused, should be accepted. Considering the settled legal principles, it is necessary to re-appreciate and re-evaluate the evidence adduced by the prosecution in this case. 5. Considering the deposition of witness Khodabhai Hindubhai - Exh.3 in brief, he stated that at the time of accident he himself, deceased Sajanbhai Rupabhai , Sajanbhai Chhaganbhai and Jivanbhai Rupabhai were proceeding on National Highway along with their cows. That at that time the S.T. bus, driven by the accused, came from behind. At that time, it was 4 – 4.30 a.m. The S.T. bus blew horn, and therefore, in panic the cows started running on the road and the bus dashed with two cows, and Sajanbhai Rupabhai. That Sajanbhai Rupabhai died on the spot. That the driver stopped the bus, but he ran away. In his cross-examination, he admitted that at the time of accident, so many vehicles were passing on the road, with full light and blowing horns. He admitted that because other vehicles which were passing on the road, blew horn, and therefore, the cows, in panic, started running on the road. That one of the cows dashed with the deceased Sajan Rupabhai, and in turn Sajan Rupabhai dashed with the bus. In his cross-examination, he admitted that the S.T. bus was proceeding with slow speed. Another eye-witness Jivan Rupabhai in his deposition stated that the S.T. bus was proceeding with slow speed. He also admitted that at the time of accident, many vehicles were passing on the road, blowing horns, and therefore, in panic the cows started running on the road. Considering the deposition of witness Sajan Chhaganbhai – Exh.12, he stated that at the time of accident, he was present. However, he stated that the bus was coming with full speed. He stated that no other vehicle except the bus was on the road at the time of accident. However, in his cross- CR.A/740/1996 5/7 JUDGMENT examination, he stated that he cannot say as to what was the speed of the bus. He stated that the bus dashed with Sajan Rupabhai and he died on the spot. This witness Sajan Chhaganbhai stated that even the bus had dashed with him and he sustained injuries. He stated that he had taken medical treatment for his injuries. In his cross-examination, he admitted that he did not state before the police that he himself was also knocked down by the bus, and had sustained injuries. 6. The prosecution examined conductor of the bus named Jivanbhai Punjabhai at Exh.5. In his testimony, he admitted that at the time of accident, bus was driven by the accused and he was conductor in the bus. He stated that the bus was proceeding with moderate speed. There was heavy traffic on the road. He heard some noise, and the bus was stopped. From the window of the bus, he saw two cows lying on the road. That 2 – 3 persons came near his bus and stated that one man had died. In cross-examination, he stated that at the time of accident, there was heavy traffic on the road. The vehicles which were coming from the opposite direction were coming with dazzling lights. Considering the panchnama of the scene of offence at Exh.6, it transpires that the place of accident was almost on the middle of the road. Damage was seen by the Panchas on the front side of the bus. The prosecution produced certificates issued by Veterinary Officer, Wadhwan, P.M. report of the deceased and the F.I.R. Therefore, perusing the FIR, Exh.15, it becomes clear that in connection with this accident, it was the accused who reported the accident before the police. In the impugned judgment, ld.Magistrate took into consideration this aspect of the matter elaborately in paragraph – 8 of the judgment. Before the ld.Magistrate, on behalf of the prosecution, it was submitted that the accused himself lodged the F.I.R., wherein he narrated the accident and virtually admitted his negligence. In paragraph – 8 of the judgment, the ld.Magistrate discussed about the evidentiary value of the F.I.R. filed by the accused himself. Before the ld.Magistrate, on behalf of the accused CR.A/740/1996 6/7 JUDGMENT the case of Aghnoo Nagesia Vs. State of Bihar reported in AIR 1966 SC 119 was relied upon. Considering the ratio laid down in the aforesaid decision delivered by Honourable Supreme Court, wherein considering the relevant provisions of the Evidence Act, the Honourable Supreme Court has held that any incriminating portion contained in such F.I.R. cannot be used in evidence against the accused. Relying upon the ratio laid down in the aforesaid judgment of the Honourable Supreme Court, the ld.Magistrate came to the conclusion that the incriminating portion referred in the F.I.R. - Exh.15, cannot be used against the accused. Even in recent judgment delivered by this Court, in the case of State of Gujarat Vs. M.S.U. Gajal Muslim reported in 2007(3) GLH 561, it appears that the facts of that case was almost similar to the facts of the present case, in the sense that in that case also, the accused who was facing the prosecution for the offence punishable under Section 279, 304-A of Indian Penal Code, had lodged the F.I.R. before the police against himself. In paragraph – 17 of said judgment, relying upon the decisions of Apex Court, it was observed as under:- “In the present case, since the FIR has been recorded on the basis of the confession made by the accused to the Police, the incriminating portion thereof cannot be used in evidence against the accused, except as admission of his conduct under Section 8 of the Indian Evidence Act, 1872. If the incriminating portion of the FIR is found to be inadmissible in evidence, then it srikes at the root of the case of the prosecution since it is hit by Section 25 of the Indian Evidence Act, 1872, and nothing further remains.” Now, coming back to the instant case, almost identical is the situation. Perusing the F.I.R. at Exh.15, it becomes clear that the incriminating portion thereof cannot be used in evidence against the respondent – accused, since the incriminating portion of the F.I.R. is found to be inadmissible in evidence and it goes to the root of the case. Under the circumstances, the ld.Magistrate did not err in not relying upon the incriminating portion contained in the F.I.R. - CR.A/740/1996 7/7 JUDGMENT Exh.15. 7. In the result, in light of the above discussions, the Trial Court did not commit any error in recording the findings of acquittal in favour of the respondent – accused. I do not find any valid or justifiable ground to interfere with the impugned judgment and order of the Trial Court. 8. For the foregoing reasons, the appeal is dismissed. (J.C. Upadhyaya, J.) binoy