STATE OF GUJARAT Vs. SAUKATBHAI YASINMOHMEDBAD SINDHI

JUDGEMENT

(1.) PRESENT appeal is preferred under Section 378 of Code of Criminal Procedure, 1973 ['Code' for short], against the judgment and order of acquittal dated 22nd May, 1998 passed by the learned Sessions Judge, Banaskantha at Palanpur in Criminal Appeal No. 26 of 1997, whereby the learned Sessions Judge allowed the appeal preferred by the present respondent against the judgment and order of conviction dated 20.11.1997 passed by the learned Second Joint Judicial Magistrate First Class, Palanpur in Criminal Case No. 4818 of 1996. Learned trial Judge convicted the respondent for the offence punishable under Section 279, 304A and 427 of Indian Penal Code ['IPC' for short] as well as under Section 177 and 184 of Motor Vehicles Act and imposed sentence on the respondent under Section 304A for a period of six months' simple imprisonment and for one month's simple imprisonment under Section 427 and fine of Rs. 200/ -, in default, nine days' simple imprisonment. However, the learned trial Judge has not imposed separate sentence on the respondent under Section 279 of IPC as well as under Section 177 and 184 of Motor Vehicles Act.

(2.) MS . Chetna M. Shah, learned Additional Public Prosecutor representing the appellant State submitted that the learned appellate Judge has not appreciated the entire evidence on the record of the case in its true perspective while acquitting the respondent for the offence under Section 304A, 427 and 279 of IPC and Section 177 and 184 of Motor Vehicles Act. Learned APP submitted that the learned appellate Judge has given a finding which is contrary to law and evidence on the record of the case and therefore, the judgment and order passed by the learned appellate Judge deserves to be quashed and set aside. Learned APP placing reliance on the deposition adduced by eye witness Harunbhai Habibbhai, PW 4 who has been examined by the prosecution vide Exh. 9, submitted that Harunbhai has deposed in his testimony about the accident which took place between the S.T. Bus and one cyclist who was coming from Palanpur side. It is submitted that the eye witness has mentioned the name of the respondent as the person who was driving the vehicle and, therefore, this fact ought to have been taken into consideration by the learned appellate Judge while ordering acquittal of the respondent. Learned APP submitted that the learned appellate Judge has committed egregious error in holding that there was no negligence on the part of the respondent in causing the accident. Thus, it is submitted by the learned APP that considering the reasons given by the learned trial Judge and the evidence adduced by PW 4 Harunbhai vide Exh.9, the present appeal requires to be allowed and the judgment and order of acquittal passed by the learned Sessions Judge deserves to be quashed and set aside and the order of conviction passed by the learned trial court requires to be upheld.

(3.) LEARNED advocate Mr. Vicky Mehta appearing for Mr. Anil S. Dave for the respondent, submitted that on bare perusal of the depositions adduced by the prosecution witnesses, no independent person or passenger is examined in order to prove involvement of the respondent in the commission of offence. It is submitted that the deposition adduced by PW 4 Harunbhai vide Exh.9 is not consistent and there are many lacunae and loopholes in the deposition adduced by Harunbhai. If cross -examination of Harunbhai is perused, then, it becomes clear that he had seen the accident from a distance of about 200 feet. He has further deposed in his cross -examination that it is true that he could not say with precision as to who was driving the bus at the time when the accident had occurred. He has further deposed in the cross -examination that the police had informed him about the name of the driver of the bus. Therefore, the learned advocate submitted that the deposition adduced by this witness cannot be believed. Learned advocate further placed reliance on the deposition of Meghrajbhai Nathubhai, PW. 7 at Exh. 16. Meghraj Nathu, in his cross -examination has deposed that it is true that during the course of the investigation and at the time when statements of witnesses were recorded, name of the driver of the bus was not disclosed. Thus, these two depositions adduced by the prosecution make it abundantly clear that that respondent was not at all involved in the commission of offence at the material point of time. It is also not established that the respondent was driving the vehicle in question. Thus, learned advocate submitted that the evidence adduced by the prosecution does not inspire necessary confidence to upset the finding given by the learned Sessions Judge as the prosecution has not conclusively established the involvement of the respondent in the commission of offence and the learned Sessions Judge has rightly acquitted the respondent for the offence punishable under Section 279, 304A and 427 of IPC and Section 177 and 184 of Motor Vehicles Act.