CR.A/112819/1995 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1128 of 1995 With CRIMINAL REVISION APPLICATION No. 6 of 1996 For Approval and Signature: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA ========================================= 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 JAISUKH VALLABH HINGU - Opponent(s) ========================================= Appearance : MR KT DAVE, ADDL. PUBLIC PROSECUTOR for Appellant(s) : 1, MR YOGESH S LAKHANI for Opponent(s) : 1, Criminal Revision Application No. 6 of 1996 THAKKAR ASSOCIATES for Petitioner MR KT DAVE, APP, for Respondent(s): 1 MR YS LAKHANI for Respondent(s) : 1 ========================================= CORAM : HONOURABLE MR.JUSTICE RAJESH H.SHUKLA CR.A/112819/1995 2/8 JUDGMENT Date : 07/10/2008 ORAL JUDGMENT By way of the present appeal under Section 378 of the Code of Criminal Procedure, 1973 (“the Code” for short), the appellant- State has questioned the legality and validity of the impugned judgment and order dated 7.9.1995 passed in Criminal Case No. 1170/88 by the learned Judicial Magistrate, First Class, Amreli. 2. The facts of the case, briefly summarized are, that the respondent-original accused was going in his Ambassador car bearing Regn. No. GJ-S-5885 near Village Vankhia and he drove his vehicle in a rash and negligent manner with full speed and dashed with one public carrier which was a stationary truck on the road side and caused the accident. As a result thereof, the occupants of ambassador car, Tofiq Ismail Memon and Iqbal Jamal received injury and the other two persons, Husein Abdul and Iqbal Daud succumbed to injuries. Therefore, a complaint being C.R. No. I-41/88 came to be lodged for the offences under Sections 279, 337, 338, 304-A of the Indian Penal Code as well as Sections 112, 116 of the Motor Vehicles Act with Amreli Rural Police Station by PSI Mr. K.N. Khelda and on the basis thereof the charge sheet was filed. The learned Judicial Magistrate, First Class, Amreli recorded the plea wherein the accused claimed to be tried. On the basis of the CR.A/112819/1995 3/8 JUDGMENT material and evidence on record produced, the learned Magistrate recorded the acquittal of the accused which has been assailed by the appellant-State in the present appeal on the grounds grounds narrated in detail in the memo of appeal, inter alia, that the learned Magistrate has failed to appreciate that the accused was driving the ambassador car which has dashed from behind the stationary truck and therefore he was rash and negligent. It has also been contended that the learned Magistrate has failed to appreciate the evidence on record and the order of acquittal passed by him is erroneous. 3. The brother of deceased Iqbal Daud and cousin of the deceased Husein Abdul, Ashraf D. Moghul, filed Criminal Revision Application No. 6/96 against the impugned judgment and order recording acquittal under Sec. 401 of the Cr.P.C. for the prayer that the impugned judgment and order recording acquittal may be quashed and set aside and therefore it has been kept for hearing along with the present appeal. 4. Learned APP Mr. K.T. Dave has referred to the impugned judgment and order as well as the material on record and emphasized that, admittedly, the accident has been caused by the respondent-accused who was driving his ambassador car with full speed and in rash and negligent manner when it dashed with the CR.A/112819/1995 4/8 JUDGMENT stationary truck from behind. Therefore, the learned APP submitted that the thing speaks for itself that the respondent- accused was driving his vehicle in such a speed and in a rash and negligent manner, and he has caused the accident by dashing his vehicle with the stationary truck from behind. The truck was stationary and therefore there is no question of any contributory negligence or any negligence and it was the rough driving on the part of the respondent original accused which has resulted in the accident. He referred to the observations in the judgment and tried to submit that though observations have been made that as there was full light of the oncoming vehicle from the other side and when he saw the stationary truck he could not avoid the accident. Therefore, it cannot be said to be any criminal negligence or negligence and it was merely an accident. Therefore, the observations made by the trial court that though it was an accident it cannot be said to be as a result of the negligence by the respondent original accused and it cannot be said to have been established that it was only because of the rash and negligent driving by the respondent-accused and the findings are given accordingly. However, learned APP Mr. Dave submitted that this finding is erroneous and the thing speaks for itself and had he been slow, the accident could have been avoided. 5. However, the learned APP fairly conceded that the stationary truck was not having any reflector which could perhaps have CR.A/112819/1995 5/8 JUDGMENT avoided the accident. If there was reflector on the stationary truck, the respondent original accused could have been aware about the stationary truck being parked on the road side and then he could have avoided the accident. 6. Learned advocate Mr. Sanjeev Kumar appearing for M/s. Thakkar Associates for the complainant who has filed the revision application, as stated above, tried to support the submissions with regard to negligence and recklessness attributing the negligence or grave negligence of the respondent-accused and emphasised that it would attract Sec. 304-A of IPC r/w the provisions of the Motor Vehicles Act. 7. In view of these rival submissions and also on appreciation and scrutiny of evidence which has been referred to by both the sides, it is required to be considered as to whether it would call for any interference with the impugned judgment and order recording acquittal. From the scrutiny of evidence it transpires that it is not in dispute that the accident has occurred due to rash and negligent driving by the respondent original accused when it dashed from behind the stationary truck. However, it is also required to be appreciated that the stationary truck was not having reflectors and it is also discussed and reflected in the impugned judgment that due to the lights of the oncoming vehicle, the respondent accused CR.A/112819/1995 6/8 JUDGMENT could not see the stationary truck and by the time he could see it, it was too late to avoid the accident. There is a specific observation that even though the vehicle would be slow, still it was so near that it could not have avoided the accident. Therefore, the factum of accident is one aspect and negligence for the purpose of Motor Vehicles Act is another aspect. However, for proof of offence for Sec. 304-A as well as Sections 279, 337, 338 of IPC r/w Sec. 112 and 116 of the Motor Vehicles Act, the degree of negligence or recklessness has to be proved and it has to be positively established by material and evidence on record that the respondent accused was rash and negligent which would also establish his culpability for the offence beyond reasonable doubt. 8. In the facts of the present case, as stated above, the stationary vehicle was not having reflectors and it has also been explained that due to the light of the oncoming vehicle, he could not see till he reached near the stationary vehicle, which resulted in the accident. Therefore, it could be an accident without any recklessness on the part of the respondent-accused, which has been discussed and dealt with in the impugned judgment. Therefore, on appreciation and scrutiny of the evidence on record, it is evident that the view taken by the learned Magistrate recording acquittal cannot be said to be perverse but possible and this court is in agreement with the ultimate conclusion arrived at and recorded by the learned Magistrate. Therefore, it may not be necessary to CR.A/112819/1995 7/8 JUDGMENT further elaborate on this aspect. 9. Moreover, it is well settled that if two views are possible on the basis of the evidence and the view taken by the trial court is possible and reasonable, then this court would not interfere with the acquittal. The said principle has been discussed by the Hon'ble Apex Court in a judgment in the case of Shingara Singh v. State of Haryana & Anr. reported in AIR 2004 SC 124. It has also been reiterated subsequently in another judgment of the Hon'ble Apex Court in the case of K. Prakashan v. P.K. Surendran, reported in (2008) 1 SCC 258, which has again referred to this aspect and observed that when two views are possible, the appellate court should not reverse the judgment of acquittal merely because the other view was possible unless when the judgment of the trial court was neither perverse or suffered from any legal infirmity or non- consideration of the evidence on record. 10. Therefore, in view of the discussion made hereinabove, the impugned judgment and order dated 7.9.1995 passed in Criminal Case No. 1170/88 by the learned Judicial Magistrate, First Class, Amreli, is possible and on appreciation of the evidence, broadly, the conclusion arrived at is just and proper and this court is not inclined to interfere with the acquittal recorded by the learned Magistrate. Therefore, the impugned judgment and order passed CR.A/112819/1995 8/8 JUDGMENT by the learned Magistrate recording acquittal is hereby confirmed and the present appeal is required to be dismissed. 11. In the result, the present appeal stands dismissed. 12. In view of dismissal of the appeal, Criminal Revision Application No. 6/96 also does not survive and it is accordingly dismissed. (Rajesh H. Shukla, J.) (hn)