STATE OF GUJARAT Vs. MANEKLAL ROOGNATH

JUDGEMENT

(1.) This appeal has been filed by the State of Gujarat against the order of the learned Judicial Magistrate First Class Shihor camp Umrela in a case in which the respondent herein the original accused was charged with the commission of offences punishable under sec. 279 and 304A of the I.P.C and under sec. 112 and 116 of the Motor Vehicles Act. The incident out of which the present appeal arises occurred at about 11 A.M. on April 28 1968 In Bhavnagar District there is a temple called Khodiyar Temple and the devotees coming to that temple have to travel upto Khodiyar Railway Station by rail and proceed on foot along the road from Khodiyar Railway Station to Khodiyar Temple. On the day of the incident one Dipsing Sursing of Valukad village had come to Khodiyar temple for performing some religious ceremonies. He and members of his family were returning from Khodiyar temple at about 11 A. M. in order to go to Khodiyar Railway Station. When Dipsing his parents his sister Kadu and other members of the family were walking on the road and came near a portion of the road sloping downwards from south towards the north he and members of his family were on the left hand side of the road and a public carrier i.e. a truck driven by the accused came from behind them. According to the prosecution the truck was moving at a very high speed and no horn was blown. As Dipsing heard the sound of the truck which was coming from behind he looked back and asked the members of his family to keep on one side of the road. In the meanwhile the truck all of a sudden came near them and dashed against Dipsings sister Kadu who was a girl of all out 10 years of age. As a result of the impact Bai Kadu fell down and according to the prosecution the front wheel of the carrier rolled over the head or some other portion of the body of Bai Kadu and after traveling a little bit further the carrier came to a stop. It is the prosecution case that after the collision the accused and some labourers who were in the body of the truck got down and started running away leaving the truck unattended. Dipsing ran towards the driver and asked the driver of the truck and the labourers not to run away but they did not listen. Thereafter Dipsing came to the spot where Bai Kadu was lying and he found that there were injuries on her head and on the leg rind that Bai Kadu was dead. Thereafter Dipsing went to the Shihor Police Station and lodged the first information report in connection with this incident. Thereafter the investigation started. In the course of the investigation a Panchnama of the scene of offence was drawn up and the truck:- was sent to the motor vehicles Inspector at Bhavnagar for the purpose of checking as to whether the mechanism in the brakes etc. was in order or not. The dead body of Kadu was sent for post mortem examination; and Dr. Mansukhlal Shah performed the post mortem examination on the dead body at Shihor Dispensary. After the investigation was over the accused was charge sheeted in the Court of the learned Judicial Magistrate First Class Shihor in Bhavnagar District.

(2.) The complainant Dipsing Sursing stated in his deposition in his examination in chief what I have set out as part of the prosecution case; and according to him the front wheel had rolled over Kadu after the impact and by the time Dipsing came to the spot where Kadu was lying he found that Kadu was dead. According to Dipsing the driver of the carrier had stopped his vehicle on the road side on the right at a distance of 8 feet from the scene of offence and after the carrier came to a stop the driver and some labourers who were in the carrier came down and started walking away. According to him in his cross examination there was one downward slope and they were on that downward slope when the incident took place. A suggestion was made to Dipsing in his cross examination and that seems to have been the defence version all throughout that just before the impact took place Kadu had started moving from the right side of the road to the left side and then in the process she knocked against the front wheel of the carrier and fell down and received the injuries which ultimately resulted in her death. Dipsing denied that suggestion. According to Dipsing what he had stated in his first information. Ex. 5 was correct and the contents were true. It was stated that the front wheel of the carrier had rolled on the head of the deceased and then after a little distance from that spot the public carrier was brought to a halt.

(3.) The medical evidence is that of Dr. Mansukhlal Premchand Shah P. W. 6 Ex. 12. Dr. Shah noticed three external injuries on the dead body. They were:-