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CR.A/768/1996 11/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 768 of 1996
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=========================================================
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
MAVJI
PANCHA SUTHAR - Opponent(s)
=========================================================
Appearance :
MS CM SHAH,
ADDL.PUBLIC PROSECUTOR for Appellant(s) :
1,
MR.DEVANG D DAVE for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 07/04/2010
ORAL
JUDGMENT
1. Heard
learned advocates for the parties.
2. The
appellant State of Gujarat has preferred this appeal under Section
378 of the Code of Criminal Procedure, 1973 challenging the order of
acquittal passed by the Sessions Court, Bhuj on 15.6.1996 in Criminal
Appeal No.31 of 1994 allowing the appeal of the respondent and
quashing and setting aside the order of conviction and sentence
passed by the Judicial Magistrate First Class, Rapar(Kachchh) on
30.9.1994 in Criminal Case No.823 of 1993 for the offence punishable
under Sections 279 and 429 of the Indian Penal Code and Sections 177
and 184 of the Bombay Motor Vehicles Act, 1939.
3. The
facts in brief leading to filing of this appeal deserve to be set out
as under:-
3.1 The
respondent hereinabove, was facing charge of committing offence
punishable under Sections 279 and 429 of the Indian Penal Code and
Sections 177 and 184 of the Bombay Motor Vehicles Act, 1939, as it
was alleged that on 2.9.1993 early in the morning at about 5 kms away
from village Adesar and on highway while driving S.T. Bus rashly and
negligently hit the cattle being conducted for grazing by the
complainant and killed 8 cattle and injured 2 cattle and thus
committed offence punishable under under Sections 279 and 429 of
the Indian Penal Code and Sections 177 and 184 of the Bombay Motor
Vehicles Act,1939. The complainant along with his companions was
conducting 40 to 50 cattle on the date of the incident on the highway
and after the accident, the bus had not stopped and therefore, the
complainant followed it in another truck along with his companions
and when they reached the railway crossing, which was 4 to 5 kms away
from the said place of incident, they found the bus which had stopped
then on account of close of rail-cross gate and they recognized the
driver of the bus. First information was given to the concerned
police station where it was initially registered as ‘Janwajog’ entry
and later on the same day the complaint came to be registered. The
investigation was carried out. The report was filed. The accused
pleaded not guilty and trial began. The Court, after appreciating the
evidence on record came to the conclusion that the offence as alleged
is said to have been proved and hence convicted the accused for the
offence punishable under Sections 279 of the Indian Penal Code and
sentence him to undergo 6 months simple imprisonment and ordered
payment of Rs.1000/- as fine and in default thereof, ordered him to
undergo 1 month simple imprisonment in addition to 6 months
imprisonment and also sentenced him under Section 429 to undergo 2
years simple imprisonment and ordered him to pay Rs.5000/- as fine
and in default thereof to further undergo 5 months simple
imprisonment and ordered that Rs.1000/- be paid to the complainant
and Rs.1000/- to each of the eye-witnesses Vanvir Nasha, Naran Nasha
and Pratapsinh Jorubha. This order of sentence and conviction dated
30.9.1994 was assailed by the accused respondent hereinabove in the
Sessions Court by preferring Criminal Appeal No. 31 of 1994. The
Appellate Court after examining, in detail, the reasoning adopted by
the Court and after narrating the serious lacuna in the case of the
prosecution, which were not taken into consideration by the Court of
the first instance, came to the conclusion that the appeal deserved
to be allowed and accordingly allowed the same by quashing and
setting aside the order of conviction and sentence dated 30.9.1994
passed by the Judicial Magistrate First Class, Rapar in Criminal
Case No.823 of 1993 and acquitted the accused vide the appellate
Court’s order dated 15.6.1996, which is assailed under Section 378 of
the Code of Criminal Procedure, 1973 in this acquittal appeal.
4.
Ms.C.M.Shah, learned Additional Public Prosecutor, has extensively
taken this Court through the testimony of the eye-witnesses as well
as the Investigation Officer and the Veterinary Doctor who performed
the post-mortem upon the carcasses of the cattle and submitted that
the trial Court’s reasoning ought not to have been discarded by the
appellate Court when the trial Court has appreciated the testimony
of eye-witnesses which cannot be said to be suffering from any major
contradiction so as to disbelieve them and when the trial Court has
also heavily relied upon the answer of the accused, which came to be
recorded while recording his statement under Section 313 of the Code
of Criminal Procedure, 1973 and also when in the said answer, the
accused has said that when he was standing with the bus at crossing,
he was contacted by the witnesses and was compelled by them to be
taken to the police station where he has said that he has not done
anything. The Panchnama of the bus could not have been disbelieved by
the appellate Court when the constable had supported the Panchnama of
the bus. Over all facts and circumstances attending the case would go
to show that the appeal ought not to have been allowed and the order
of conviction and sentence ought to have been confirmed and sustained
by the appellate Court.
5. Shri
Devang D. Dave learned advocate appearing for the opponent contended
that this being an acquittal appeal, the Court may not interfere with
the same unless and until it is established by the appellant that
sustaining the order of acquittal would result into miscarriage of
justice. In the instant case, he submitted that glaring discrepancies
were recorded by the appellate Court in the testimony of the
eye-witnesses and probability of the bus not being the same bus has
been discussed by the trial Court and when it can be said that the
trial Court’s order of conviction and sentence was passed upon the
conjunctures and surmises, then the order of acquittal passed by the
appellate Court after appreciating the evidence on record needs no
interference under Section 378 of the Code of Criminal Procedure,
1973. Shri Dave invited this Court’s attention to the findings
recorded by the trial Court on page 11 of the judgment and submitted
that the plain reading of this findings go to show that the trial
Court has acted upon presumption as the word Anuman is
employed time and again. Learned advocate for the respondent
thereafter drew the attention of this Court at Exh.38. i.e. the
‘Janwajog’ entry wherein also the route of the bus is shown to be
from Radhanpur to Rapar, whereas in the complaint, which was recorded
on the same day, the route of the bus is shown to be Anand to Rapar.
The learned advocate for the respondent submitted that the statement
of the accused which has been recorded under Section 313 of the Code
of Criminal Procedure, 1973, has wrongly been taken to be a statement
connecting the accused with the crime. This error has been
appreciated by the appellate Court and conviction and sentence has
rightly been quashed and set aside. This Court may not interfere with
the same under Section 378 of the Code of Criminal Procedure, 1973.
6. The
following indisputable aspects of the matter deserve to be set out
before adverting to the contention of the learned advocates for the
parties which are as under:-
1) The
incident in question involves death of 8 cattle and injury to the two
cattle on the highway when they were being conducted for grazing in
the night of 1st September, 1993.
2)
The incident in question is said to have occurred at 2:45 a.m. in the
morning of 2nd September, 1993. As per the say of the
complainant, the cattle were gathered for the purpose of taking them
for grazing on 1st September, 1993. Some witnesses have
said that there were 50 to 60 cattle. However, the complainant has
stated that there were 40 to 50 cattle. The complainant has said in
his complaint that he was walking at the end of the entire herd and
the bus was coming from the other side which hit the cattle and
resulted into killing of 8 cattle and injury to 2 cattle. The other
eye-witnesses have said that they were walking in front of herds and
they noticed that the bus was coming in high speed and it hit the
cattle.
3)
The ‘Janwajog’ entry is said to have been recorded at the instance
of the very complainant who lodges the complaint on the very same
day. In the complaint it is mentioned that the bus was enroute Anand
to Radhanpur whereas in Janwajog entry that bus was enroute Rathanpur
to Rapar.
4) The
Veterinary Doctor, who had performed postmortem on the carcasses of
cattle, has also stated that he did not verify the owner of the
cattle which died on account of the accident. Time of death is also
not recorded nor could he opine with regard to the time of death of
the cattle.
5) The
trial Court has in its judgment mainly relied upon the answer of the
accused in response to the question No.3 in his statement under
Section 313 of the Criminal Procedure Code, 1973, wherein he has
stated that he was compelled by the witnesses to go to the police
station. This is the main link for connecting the accused with the
crime, according to the findings of the trial Court.
6) The appellate Court has
appreciated the fact that the prosecution cannot be said to have
established its case beyond reasonable doubt so as to connect the
accused with the crime and hence on such type of evidence was found
to be unsustainable in the eyes of law and therefore, the conviction
was set aside.
7) The appellate Court has also
appreciated the fact that the Investigating Officer has not bothered
to gather more information and fact as to, if the bus was said to
have been damaged in the accident, what report was made to the S.T.
Corporation by the driver or the Conductor of the bus. The appellate
Court has appreciated that this fact is to be read coupled with the
fact that the conductor has not supported the case of the prosecution
at all.
8) The appellate Court has also
appreciated the fact that the panch witness has not supported the
Panchnama of bus. The bus is said to have been damaged, the radiator
was broken and such a bus is said to have made complete journey to
its destination. The appellate Court held that the prosecution cannot
be said to have been established its case beyond doubt.
7. This Court in light of the
aforesaid indisputable aspects of the matter is of the view that when
the panch witnesses have not supported the panchnama of bus when the
bus was reported to have been damaged wherein radiator itself was
broken and when it is said that the bus was seen after 4 to 5 k.m.
and in fact the bus was taken to the police station, then the
prosecution has to explain its conduct as to how only ‘Janwajog’
entry was made and wherein also serious discrepancy is noticed in
respect of the route of the bus and identification of the bus. The
conductor of the bus has not supported the case of the prosecution
nor has the Investigation Officer taken care to obtain statement of
the passenger traveling in the bus. The statement of the
eye-witnesses and the discrepancies found in their statements would
also go to show that the order passed by the appellate Court cannot
be said to have resulted into miscarriage of justice so as to call
for any interference under Section 378 of the Code of Criminal
Procedure, 1973. Hence, the appeal fails and is hereby rejected. Bail
bond, if any, shall stand cancelled.
(S.R. Brahmbhatt, J. )
sudhir
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