CR.A/710/1996 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 710 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 JAMALBHAI RAHEMANBHAI - Opponent(s) ======================================================== Appearance : MR MR MENGDE, APP for Appellant(s) : 1, MR HR PRAJAPATI for Opponent(s) : 1, MR MR PRAJAPATI for Opponent(s) : 1, ======================================================== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 18/02/2008 ORAL JUDGMENT Being aggrieved and dissatisfied with the judgment and order CR.A/710/1996 2/5 JUDGMENT rendered by the learned Judicial Magistrate First Class, Bhavnagar [hereinafter referred to as 'the learned Magistrate'], dated 7/6/1996 in Criminal Case No. 1791 of 1991, whereby the learned Magistrate was pleased to acquit the accused for the offences punishable under sections 279 and 304(A) of the Indian Penal Code and sections 177 and 184 of the Motor Vehicles Act, the State of Gujarat preferred this appeal under section 378 of the Code of Criminal Procedure [hereinafter referred to as 'Cr. P.C.']. 2. The case of the prosecution, in short, is that on 14/5/1991 at about 8.30 a.m., the respondent – driver, driving the truck bearing registration no. GTS 8633, rashly and negligently, dashed his truck with minor Vijay and in the accident minor Vijay succumbed to the injuries instantaneously. In this connection, one Balabhai Punabhai lodged FIR before police and after the completion of the investigation, the police filed charge-sheet against the respondent – accused in the Court of the learned Magistrate. The respondent – accused did not plead guilty and, therefore, the prosecution adduced its oral and documentary evidence. The prosecution examined complainant Bala Puna at Exh. 6, Panch Savjibhai Bhikhabhai at exh. 8 and witnesses Vasantben Naranbhai, Dipak Jamnadas, Kanubha Bachubha, Samantbhai Ranabhai and Dr. Kantibhai Shankarbhai at exhs. 17, 20, 21, 22 and 26 respectively. No more witnesses were examined by the prosecution. The prosecution produced relevant documentary evidence like FIR, panchnama of scene of occurrence, inquest panchnama and PM report, on record. After the conclusion of the evidence, the learned Magistrate recorded further statements of the accused under section 313 of the Cr. P.C., wherein the accused denied all the allegations levelled against him by the prosecution including the fact that at the time of accident, he was driving the truck. After hearing arguments advanced on behalf of both the parties, the learned Magistrate delivered the impugned judgment and order whereby the learned Magistrate was pleased to acquit the respondent – accused. Feeling aggrieved and dissatisfied with the judgment and order delivered by the learned Magistrate, the State of Gujarat preferred this appeal. CR.A/710/1996 3/5 JUDGMENT 3. On behalf of the appellant – State, learned APP Mr. Mengde submitted that the learned Magistrate committed error in not properly appreciating the evidence on record. Admittedly the deceased was minor and, therefore, it was the incumbent duty on the part of the driver of a heavy vehicle like truck, to drive his truck in such a manner that he can avoid the accident under any eventuality. That as per the evidence on record, the only eye witness available at the time of accident was mother of deceased Vijay named Vasantben. That Vasantben, in her deposition, narrated the facts regarding the accident and considering her deposition as a whole, it clearly transpires that the accused was solely responsible for causing the accident and he was driving the vehicle rashly and negligently. That considering the panchnama of scene of occurrence, it clearly transpires that wheel marks showing application of brake by the driver of the truck extended about 12 ft., in length on the road. This fact, coupled with the fact that the vehicle was involved in the accident, was heavy vehicle like truck, discloses the fact that the accused must be driving his truck with full speed. Thus, the learned Magistrate failed to properly appreciate the evidence on record. That therefore, this is a fit case that this appellate Court should interfere with the judgment and order passed by the learned Magistrate. 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 respondent – accused be punished in accordance with law. 3.1. On behalf of the respondent accused, learned advocate Mr. HR Prajapati submitted that the learned Magistrate correctly appreciated the evidence on record. That the basic fact connecting the accused with the crime itself is not established by the prosecution. That there is no iota of evidence to come to the conclusion that at the time of accident, the accused was driving the truck in question. That even considering the testimony of sole eye witness Vasantben, the identity of the accused is not established. That it has come on record that at the time of accident, deceased boy Vijay, who was accompanying his mother, abruptly attempted to cross the road, which was high way road CR.A/710/1996 4/5 JUDGMENT having vehicular traffic on the road and ill-fated accident occurred. That the learned Magistrate assigned cogent and convincing reasons to come to the conclusion that the prosecution not only failed to prove beyond reasonable doubt the identity of the accused, but even the factum of negligence. Therefore, it is submitted that the appeal be dismissed. 4. Considering the impugned judgment and order passed by the learned Magistrate, coupled with the evidence on record, it clearly transpires that this is a case of sole eye witness, who was the mother of deceased Vijay, named Vasantben. Considering the testimonies of other witnesses including the complainant, it clearly transpires that at the time of accident, they were not present. The learned Magistrate, in the impugned judgment, on the basis of appreciation of evidence, rightly observed that neither complainant Bala Puna nor the witnesses Dipak Jamnadas, Kanubha Bachubha and Samantbhai Ranabhai established the identity of the accused and they clearly admitted that they have not seen the accused driving the truck. In the impugned judgment, the learned Magistrate discussed the testimony of eye witness Vasantben Naranbhai at length and observed that even considering her testimony, she had not seen the accused driving the truck. Though in her deposition, she narrated the accident, considering her cross-examination on behalf of the accused, she clearly admitted that she could not identify the driver of the truck at the time of accident. Further more, considering her deposition, it clearly transpires that at the time of accident, there was vehicular traffic on the road, which was a high way. Her two sons were accompanying her and both were minor. She was going to her parents' house. That one of her sons Vijay abruptly attempted to cross the road and Vijay was run over by a truck and died on the spot. In this connection, if the panchnama of scene of occurrence is considered together with the deposition of panch Savjibhai Bhikhabhai, it clearly transpires that scattered blood marks were visible on the road. It further transpires that the wheel marks showing application of brake by the driver of the truck extended upto 12 ft., on the road. In the impugned judgment, the learned Magistrate CR.A/710/1996 5/5 JUDGMENT rightly observed that the driver of the truck visualizing that suddenly a boy attempted to cross the road, applied brake so as to avoid the accident. This fact is corroborated not only by the testimony of Vasantben, but even by the panchnama of scene of occurrence. 5. When the prosecution failed to establish the identity of the accused, at that time the learned Magistrate rightly observed in his judgment that it was incumbent on the part of the Investigating Officer to record statement of the owner of the truck to establish the nexus of the accused with the truck. However, no statement of owner of the truck was recorded by the Investigating Officer nor any identification parade was held in this case. In the impugned judgment, the learned Magistrate assigned cogent and convincing reasons to come to the conclusion that the prosecution failed to prove beyond reasonable doubt the case against the accused. 6. In light of the entire above discussions, it becomes clear that there is no reason whatsoever for this appellate Court to interfere with the judgment and order of acquittal recorded by the learned Magistrate. Under such circumstances the appeal deserves to be dismissed. In the result, the appeal is dismissed. ( J .C. UPADHYAYA, J. ) *Pansala.