STATE OF GUJARAT Vs. IMTIAZ MUSEJI SHAIKH

JUDGEMENT

(1.) BY preferring this appeal under section 378 of the Criminal Procedure Code, 1973, the State of Gujarat challenged the judgment and order passed by the learned Judicial Magistrate First Class, Chikhli [hereinafter referred to as 'the learned Magistrate'] dated 29/11/1997 In Criminal Case No. 603/1993. By virtue of the impugned judgment and order, the learned Magistrate was pleased to acquit the accused from the charge of offences punishable under sections 279, 337 and 304(A) of the Indian Penal Code and sections 177 and 184 of the Motor Vehicles Act.

(2.) THE case of the prosecution, in brief, is as under :

(3.) CONSIDERING the impugned judgment delivered by the learned Magistrate and the evidence on record, it transpires that the prosecution examined complainant Jitendra Patel at exh. 12 and witnesses Bhanabhai Gandabhai exh. 24, Kirankumar Ravjibhai exh. 25, Gitaben Bhanabhai exh. 31, Bhikhubhai Chhotubhai exh. 32, Shaileshkumar Maganbhai exh. 35 and Dineshbhai Dhirubhai exh. 36 in capacity as eye witnesses of the scene of occurrence. In the impugned judgment, the learned Magistrate has elaborately discussed the depositions of all the above referred eye witnesses and, therefore, I need not reproduce here the depositions of those eye witnesses. Suffice it to say that as per the evidence adduced by the eye witnesses, they deposed that at the time of accident, boy Tejas aged about two and half years, along with his father Bhanabhai Gandabhai, was standing on the side of the road. The road was approximately 8 ft., in width. They also stated that at the time of accident a marriage ceremony was going on and the place of the said ceremony was adjacent to the road. They also stated that at the time of accident, on each side of the road, so many persons were standing and there was continuous vehicular traffic at the time of accident. They also stated that some ice -cream and candy vendors were on the side of the road. Now according to their depositions, one tempo driven with excessive speed, by the accused, dashed with boy Tejas, who was standing on the side of the road and Tejas was knocked down by the speeding tempo and he sustained serious bodily injuries and succumbed to the injuries later on in a hospital. Considering the cross -examination of these eye witnesses, it further transpires that approximately 250 to 300 ft., away from the place of occurrence, there was a curve on the road and there was a diversion because construction work of a bridge was going on. The eye witnesses denied the suggestion that Tejas abruptly attempted to cross the road and at that time the tempo driven by the accused hit the boy and the accident occurred, to which, however, the witnesses denied such suggestions. On behalf of the accused, it was also suggested to these witnesses that Tejas wanted to buy ice -cream and he abruptly attempted to cross the road and the accident occurred, to which also all these eye witnesses denied the suggestion. The prosecution produced documentary evidence like panchnama of the scene of occurrence, post mortem report, etc.