CR.A/164/1998 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 164 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 IMTIAZ MUSEJI SHAIKH - Opponent(s) ====================================== Appearance : MR MR MENGDE, APP for Appellant(s) : 1, MR DIVYESH JOSH for MR JB PARDIWALA for Opponent(s) : 1, ====================================== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 30/01/2008 ORAL JUDGMENT CR.A/164/1998 2/8 JUDGMENT 1. By preferring this appeal under section 378 of the Criminal Procedure Code, 1973, the State of Gujarat challenged the judgment and order passed by the learned Judicial Magistrate First Class, Chikhli [hereinafter referred to as 'the learned Magistrate'] dated 29/11/1997 In Criminal Case No. 603/1993. By virtue of the impugned judgment and order, the learned Magistrate was pleased to acquit the accused from the charge of offences punishable under sections 279, 337 and 304(A) of the Indian Penal Code and sections 177 and 184 of the Motor Vehicles Act. 2. The case of the prosecution, in brief, is as under : 2.1. It is the case of the prosecution that the vehicular accident occurred on 23/4/1993 at about 4.00 p.m., near village Pipalgabhan on Chikhli – Khergam road. It is the case of the prosecution that because of the marriage ceremony, deceased boy Tejas aged about two and half years, along with his father, had come to attend the marriage ceremony. The place of marriage ceremony was nearby to the road. As per the case of the prosecution, boy Tejas along with his father Bhanabhai Gandabhai, was standing on the edge of the road; at that time, the accused driving the tempo bearing registration no. GJ-15-T-2624 rashly and negligently, dashed his tempo with deceased boy Tejas and Tejas was knocked down and was run over by the speeding tempo. He was removed to hospital and during treatment, Tejas succumbed to the injuries. Uncle of the deceased Tejas named Jitendrabhai Patel lodged FIR before the police. After the FIR was lodged, investigation by police started, police recorded statements of the witnesses, drew panchnama of the scene of occurrence in presence of panchas, collected documentary evidence like post mortem report, etc., and filed charge-sheet for the offences punishable under sections 279, 337 and 304 (A) of the Indian CR.A/164/1998 3/8 JUDGMENT Penal Code and sections 177 and 184 of the Motor Vehicles Act. 2.2. Since the accused did not plead guilty, the prosecution adduced oral and documentary evidence. The prosecution examined witness Jitendrabhai Patel, who has lodged the FIR before the police, at exh. 12. Exh. 13 is the FIR. Prosecution also examined witnesses Ramanbhai Gopalbhai at exh. 17, Arvindbhai Maganbhai at exh. 21, Bhanabhai Gandabhai at exh. 24, Kirankumar Ravjibhai at exh. 25, Gitaben Bhanabhai at exh. 31, Bhikhubhai Chhotubhai at exh. 32, Shaileshkumar Maganbhai at exh. 35 and Dineshbhai Dhirubhai at exh. 36. 2.3. The prosecution produced panchnama of the scene of occurrence at exh. 18, inquest panchnama at exh. 22 and post mortem report of the deceased at exh. 37. 3. Considering the impugned judgment delivered by the learned Magistrate and the evidence on record, it transpires that the prosecution examined complainant Jitendra Patel at exh. 12 and witnesses Bhanabhai Gandabhai exh. 24, Kirankumar Ravjibhai exh. 25, Gitaben Bhanabhai exh. 31, Bhikhubhai Chhotubhai exh. 32, Shaileshkumar Maganbhai exh. 35 and Dineshbhai Dhirubhai exh. 36 in capacity as eye witnesses of the scene of occurrence. In the impugned judgment, the learned Magistrate has elaborately discussed the depositions of all the above referred eye witnesses and, therefore, I need not reproduce here the depositions of those eye witnesses. Suffice it to say that as per the evidence adduced by the eye witnesses, they deposed that at the time of accident, boy Tejas aged about two and half years, along with his father Bhanabhai Gandabhai, was standing on the side of the road. The road was approximately 8 ft., in width. They also stated that at the time of accident a marriage ceremony was going on and the CR.A/164/1998 4/8 JUDGMENT place of the said ceremony was adjacent to the road. They also stated that at the time of accident, on each side of the road, so many persons were standing and there was continuous vehicular traffic at the time of accident. They also stated that some ice-cream and candy vendors were on the side of the road. Now according to their depositions, one tempo driven with excessive speed, by the accused, dashed with boy Tejas, who was standing on the side of the road and Tejas was knocked down by the speeding tempo and he sustained serious bodily injuries and succumbed to the injuries later on in a hospital. Considering the cross-examination of these eye witnesses, it further transpires that approximately 250 to 300 ft., away from the place of occurrence, there was a curve on the road and there was a diversion because construction work of a bridge was going on. The eye witnesses denied the suggestion that Tejas abruptly attempted to cross the road and at that time the tempo driven by the accused hit the boy and the accident occurred, to which, however, the witnesses denied such suggestions. On behalf of the accused, it was also suggested to these witnesses that Tejas wanted to buy ice-cream and he abruptly attempted to cross the road and the accident occurred, to which also all these eye witnesses denied the suggestion. The prosecution produced documentary evidence like panchnama of the scene of occurrence, post mortem report, etc. 4. Now on the basis of the impugned judgment and the above referred oral and documentary evidence on record, on behalf of the appellant – State, Ld. APP Mr. Mengde vehemently submitted that the prosecution successfully proved that the accident occurred because of rash and negligent driving of the tempo by the accused. It was submitted that there is no dispute that at the time of accident the accused was driving the tempo. Even the factum of accident is not in dispute. It is also not in dispute that Tejas died because of the vehicular injuries CR.A/164/1998 5/8 JUDGMENT sustained by him. That by examining eye witnesses the prosecution has produced voluminous evidence on record to come to the conclusion that because of the rash and negligent driving of the tempo by the accused, the accident occurred. The learned Magistrate committed serious error in discarding the depositions of the eye witnesses and acquitting the accused by coming to the conclusion that the accused was not at all negligent while causing the accident. That considering the depositions of the eye witnesses, no a single eye witness deposed that at the time of accident Tejas was trying to cross the road and the accident occurred. They all categorically stated that Tejas was standing along with his father on the side of the road at the time of accident. It is submitted that as deposed by the eye witnesses as well as considering panchnama of the scene of occurrence exh. 18, it clearly transpires that on the road, there were wheel marks showing application of brake by the accused extended upto 17 ft. The length of the wheel marks clearly reveals that the tempo must be proceeding with excessive speed. That even panchnama reveals that the tempo was found on the road in a transversed position. That considering the ocular evidence adduced by the prosecution together with the panchnama of the scene of occurrence, it becomes crystal clear that the prosecution was successful to prove that the accident occurred because of rash and negligent driving of the tempo by the accused. That the learned Magistrate erred in acquitting the accused. Therefore, it is submitted that the appeal be allowed and the impugned judgment and order passed by the learned Magistrate be set aside and the accused be convicted for the offences charged by the prosecution. 4.1. As against this, on behalf of the respondent – accused, learned counsel Mr. Divyesh Joshi for Mr. JB Pardiwala, learned counsel submitted that the impugned judgment and order delivered by the learned Magistrate, by virtue of which the accused came to be acquitted, CR.A/164/1998 6/8 JUDGMENT is perfectly legal and valid and in conformity with the evidence on record. All the so called eye witnesses, whose depositions are recorded before the trial Court are relatives of the deceased and are interested witnesses. They all tried to bring on record a fact that at the time of accident, boy was standing along with his father on the side of the road. However, the reality is otherwise. Considering the FIR exh. 13 and the panchnama of scene of occurrence exh. 18, it becomes crystal clear that the accident occurred on th middle of the road. That from the very beginning, it is the defence of the accused that abruptly Tejas tried to cross the road and the accident occurred. Considering the FIR and the panchnama, it cannot be said that the defence of the accused is false and baseless. This creates doubt in the case of the prosecution and the accused is entitled to the benefit of doubt. It is further submitted that the tempo was loaded with gunny bags containing rice and, therefore, mere fact that the wheel marks showing application of brake on the road extended upto about 17 ft., cannot be co-related with the speed. Therefore, the prosecution failed to prove beyond reasonable doubt the offence alleged against the accused. It is further submitted that in catena of decisions it has been laid down that in an acquittal appeal even if two views are possible, one leading to the guilt of the accused and another to the innocence of the accused, the view leading to innocence of the accused should be adopted. Reliance was also placed upon the judgment rendered in the case of State of Gujarat v/s. Mohmed Sharif Umar Gajal Muslim reported in 2007 [3] G.L.H. 561. Therefore, it is submitted that appeal be dismissed. 5. Now as discussed above, the eye witnesses whose depositions are recorded, have stated that the accident occurred on the side of the road as at the time of accident Tejas, along with his father, was standing on the side of the road and he was hit by the speeding CR.A/164/1998 7/8 JUDGMENT tempo driven by the accused. Now their depositions are required to be considered in light of the FIR exh. 13 and the panchnama of scene of occurrence exh. 18. Considering the FIR exh. 13 about the place of accident, it is stated that the tempo knocked down Tejas on the middle of the road and the accident occurred. Likewise, considering the panchnama of the scene of occurrence exh. 18, the wheel marks showing the application of brake along with blood marks, were found approximately on the middle of the road. It is stated that all the above marks were visible on the road which were approximately 5'.2 inches from the eastern edge of the road and they were on the road. However, in the panchnama of the scene of occurrence, the width of the tar road is not mentioned, but the eye witnesses stated that the width of the road was 8 ft. Now if the prosecution case as it is, is accepted, then the place of accident must be on the side of the road; whereas the documentary evidence like FIR and panchnama of scene of occurrence reveal that the accident occurred almost in the middle of the road. In the impugned judgment, the learned Magistrate discussed in detail this aspect of the matter. Therefore, it becomes clear that during the course of adducing oral evidence the witnesses tried to change the place of accident and stated that the accident occurred on the side of the road; whereas the fact is otherwise. 6. It is true that in the vehicular accident a life is lost of a boy aged two and half years. However, as admitted by eye witnesses, boy was not alone on the road. He was accompanied by his father and other relatives. In the impugned judgment, the learned Magistrate has rightly observed that it was also a duty of the father of the boy and his relatives to see that the boy does not leave them and stand up by their side especially when they were standing near a busy road having vehicular traffic. CR.A/164/1998 8/8 JUDGMENT 7. In the impugned judgment the learned Magistrate has taken into consideration all the above referred relevant aspects of the matter. In light of the above discussions, it is clear that the learned Magistrate did not commit any error in coming to the conclusion that the prosecution failed to prove its case beyond reasonable doubt against the accused. As argued by learned counsel Mr. Joshi for the respondent – accused, even if two views are possible, one leading to the guilt of the accused and other leading to the innocence of the accused, the appellate Court should adopt the view leading to innocence of the accused. As established in the cases of (1) State of Uttar Pradesh v. Ram Veer Singh and Ors. - 2007 (6) Supreme Court 164 and (2) State of Gujarat v. Bharatbhai Balubhai Lad and Ors. 2006 (1) GLH 718, the Appellate Court, although vested with powers to reappreciate and re-evaluate the evidence, would be slow in reversing the finding of acquittal unless the findings of the Trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. 8. In light of the entire above discussions, there is no such legal infirmity in the judgment under challenge and, therefore, there is no reason to interfere with the impugned judgment and order under challenge passed by the learned Magistrate. Hence the appeal deserves to be dismissed and accordingly it is dismissed. ( J .C. UPADHYAYA, J. ) *Pansala.