CR.A/784/1999 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 784 of 1999 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 MANUBHAI CHUNILAL PANCHAL - Opponent(s) ====================================== == Appearance : MR AJ DESAI, APP for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1, MR YV BRAHMBHATT for Opponent(s) : 1, ====================================== == CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 01/05/2008 ORAL JUDGMENT CR.A/784/1999 2/9 JUDGMENT 1. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Judicial Magistrate First Class, Limkheda ('ld.Magistrate', for short) on dated 23.4.1999 in Criminal Case No.428/1995, the State of Gujarat preferred this appeal under section 378 of the Code of Criminal Procedure, 1973 ('Code', for short). The ld.Magistrate by virtue of the impugned judgment and order was pleased to acquit the respondent herein, who was accused in the aforesaid Criminal Case No.428/1995 for the offence punishable under sections 279, 337, 338 and 304-A of the Indian Penal Code, and punishable under sections 177 and 184 of the Motor Vehicles Act. 2. The prosecution case in nutshell is as under:- 3. It was the case of the prosecution that on dated 6.11.1994, the respondent – accused was driving the S.T. Bus bearing registration No.GJZ-458. It was plying between Jalod to Ahmedabad. When the bus reached near Village Fulpari, and when it was descending a slope on a zigzag road, at about 17.45 in the evening, at that time the accused was driving the bus with full speed rashly and negligently. That the accused lost control over the steering, and the bus left the road and fell in a ditch in a turtled position. One of the passenger named Madhuben Bharatbhai sustained serious bodily injuries and she succumbed to the injuries, and about 12 passengers sustained bodily injuries. The FIR was lodged in connection with this accident by one passenger named Limbabhai Ranchodbhai in Limkheda police station. Police investigation was started, and the statements of witnesses were recorded, and in presence of Panchas CR.A/784/1999 3/9 JUDGMENT panchnama of scene of offence was drawn. After collecting PM report, and injury certificates from Jalod Hospital, the police filed chargesheet against the respondent – accused in the Court of ld.Magistrate. Since the accused did not plead guilty, the prosecution adduced its oral and documentary evidence. The prosecution examined in all 7 witnesses. Documentary evidence like FIR, panchnama of the scene of offence, inquest panchnama, PM report and injury certificates were produced. After the prosecution completed its evidence, the ld.Magistrate recorded further statement of the accused u/s.313 of the Code. In his further statement, the accused generally denied all the allegations leveled against him by the prosecution, and he explained that there was slope in the road, and the brakes had suddenly failed, yet, he tried his best to control the bus to avert the accident. That despite this, since the brakes failed, and there was slope in the road, the bus could not be controlled. That the accident did not occur because of his rashness and negligence. The ld.Magistrate after appreciating the oral and documentary evidence on record, and after hearing arguments advanced on behalf of both the sides, delivered the impugned judgment and order whereby he was pleased to acquit the accused. 4. On behalf of the appellant – State, ld.A.P.P. Mr.Desai submitted that the impugned judgment and order delivered by the ld.Magistrate is contrary to law and evidence on record. That the prosecution examined eye- witnesses, who are none other than the passengers in the bus itself, and they all categorically stated that the accused was driving the bus with full speed, despite the CR.A/784/1999 4/9 JUDGMENT fact that the road was narrow and at the place of accident there was a curve and a slope. That the very fact that the bus left the road and fell in ditch in a turtled position, itself reveals the negligence of the driver of the bus. Therefore, it is submitted that this is a fit case to interfere with the acquittal order recorded by the ld.Magistrate. Hence, it is submitted that the appeal be allowed and the impugned judgment and order passed by the ld.Magistrate be set-aside, and respondent – accused be appropriately convicted and sentenced for offence alleged against him by the prosecution. 5. As against this, ld.Advocate Shri Y.V.Brahmbhatt for the respondent – accused submitted that there is no reason whatsoever for this Appellate Court to interfere with the order of acquittal recorded by the ld.Magistrate. That all the witnesses, including the Investigating Police Officer in their depositions, outright admitted that the accident occurred because of brake failure. They also admitted that despite the fact that the brake had failed, yet, the accused tried his level best to avert the accident and to control the bus. That therefore, because of mechanical defect, the accident had occurred and there was no negligence worth the name on the part of the accused for the mishap. Therefore, it is submitted that the appeal be dismissed. 6. Before the evidence recorded by the ld.Magistrate in the Criminal Case is appreciated, it would be necessary to consider the case of 'Chandrappa and others Vs.State of Karnataka reported in (2007)4 SCC 415. In the aforesaid case, in connection with the acquittal appeals u/s.378 of the Code, it was held as under by Honourable CR.A/784/1999 5/9 JUDGMENT the Apex Court: (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 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.' 7. Therefore, in light of the principles established by Honourable the Apex Court in the above referred ruling, it would be necessary to re-appreciate the evidence CR.A/784/1999 6/9 JUDGMENT adduced by the prosecution in the aforesaid criminal case. Considering the deposition of complainant Limba Ranchhod, recorded at Exh.3, he stated that at the time of accident, he was traveling with his family members in the bus, and so many other passengers were also traveling in the bus. He stated that at about 5 p.m., the bus had started from Jalod, and when the bus reached near Singapur curve, at that time, the bus was proceeding with full speed. That some of the passengers were shouting and requesting the driver of the bus to apply brakes, but, the speed was not reduced. That the bus fell in ditch. That he sustained injuries in his leg. He lodged FIR before the police, which is produced at Exh.4. He stated that the accused was driving the bus. In his cross-examination on behalf of the defence, he admitted that at the place where the accident occurred, there was a sharp curve and a slope in the road. That the road was zigzag. He admitted that he was seated in the rear seat of the bus. He categorically admitted that the driver of the bus attempted to apply brakes, but the brakes had failed. The prosecution examined other witnesses, who were passengers traveling in the bus, namely Madhuben Limbabhai at Exh.5, Sangitaben Limbabhai at Exh.8, Saileshbhai Limbabhai at Exh.9, Sanjaybhai Sagjibhai Vasaiya at Exh.13 and Naishatkumar Savjibhai Vasaiya at Exh.14. Their testimonies are more or less identical like the testimony of complainant Limba Ranchhod, who was examined by the ld.Magistrate, and whose deposition was recorded at Exh.3. Almost all the witnesses admitted that at the place of accident, there was a slope, and at the end of the slope, there was a sharp curve. And that there CR.A/784/1999 7/9 JUDGMENT was brake failure in the bus, and therefore, the bus left the road and fell in ditch. Witness Sanjaybhai Sagjibhai, whose deposition was recorded at Exh.13, in his cross- examination stated that despite the fact that the brake of the bus was failed, yet, the accused tried his level best to avert the accident, and even he tried to put the bus in low gears, but, the bus turned turtle. Considering the deposition of witness Naishatkumar Savjibhai, recorded at Exh.14, he deposed in his cross-examination that before the bus reached near the place of accident, the bus was proceeding in a normal speed, but, as the bus started descending the slope, because of brake failure, it proceeded with speed. 8. The prosecution examined the Investigating Police Officer named Bapusinh Bhayjibhai, and his deposition was recorded at Exh.41. In his examination-in-chief, he narrated about the investigation made by him in connection with this offence. However, in his cross- examination, in the very first line, he categorically admitted that, the accident occurred because of the brake failure of the bus. He further admitted that during the course of his investigation, he did not make any attempt to have the bus examined and tested by R.T.O. No more witnesses were examined by the prosecution. Exh.10 is the panchnama of scene of occurrence. Perusing the panchnama, it is true that the bus was found in turtled position in a ditch. However, it is further stated that over the northern side of the bus, there was a valley. In this connection, considering the deposition of witness Naishatkumar Savjibhai, recorded at Exh.14, in his cross- examination he stated that if the bus had fallen in the CR.A/784/1999 8/9 JUDGMENT deep valley, there would have been more casualties, many passengers would have lost their lives. 9. Ld.Advocate Shri Brahmbhatt for the respondent, relied upon the case of Tukaram Sitaram Gore vs. State, reported in AIR 1971 Bombay 164. In a case for the offence punishable u/s.304-A of the IPC, it was held that high speed of motor vehicle does not by itself prove rashness or negligence of the driver. However, in the instant case, as admitted by almost all the witnesses, including the Investigating Police Officer, there was brake failure in the bus, and unfortunately, the brake had failed, when the bus was descending a slope. Under such circumstance, it cannot be said that the accused was responsible for the speed. In the case of Badri Prasad Tiwari vs.State reported in 1994(1) Crimes 687, it was observed that rashness or negligence to be established must be more than an error of judgment. In the case of Veerabhadrappa vs.State of Karnataka reported in 1990(1) Crimes 615, in an accident case, for the offence under sections 279 and 338 of IPC, Karnataka High Court observed that in accident cases, non-examination of the Motor Vehicle Inspector may prove fatal to the prosecution. In the instant case, as admitted by the Investigating Police Officer, he did not make any attempt to see that the bus was examined and tested by R.T.O., despite the fact that the cause of the accident was brake failure of the bus. 10.In the impugned judgment delivered by the ld.Magistrate, the ld.Magistrate while appreciating the oral and documentary evidence adduced by the prosecution, took into consideration the above aspects of the matter. When CR.A/784/1999 9/9 JUDGMENT such is the situation, there is no reason whatsoever for this Appellate Court to interfere with the impugned judgment and order of acquittal passed by the ld.Magistrate. 11.For the foregoing reasons, the appeal is hereby dismissed. [ J.C. Upadhyaya, J. ] binoy*