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CR.A/112819/1995 8/ 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
Date
: 07/10/2008
ORAL
JUDGMENT
By
way of the present appeal under Section 378 of the Code of Criminal
Procedure, 1973 (?Sthe 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 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 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 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 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 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 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)
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