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2023 DIGILAW 1019 (GUJ)

Bharatsinh Somabhai Baman v. State Of Gujarat

2023-08-11

HASMUKH D.SUTHAR

body2023
JUDGMENT : Hasmukh D. Suthar, J. 1. Present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the applicant herein – original accused to quash and set aside the impugned judgment and order dated 16.03.2008 passed by the learned Judicial Magistrate, First Class, Kathor, District Surat (hereinafter referred to as “learned trial Court”) in Criminal Case No.178/2007, whereby the present applicant – original accused has been convicted for the offences punishable under Sections 279 and 304(A) of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and under Sections 177, 184 and 134 of the Motor Vehicles Act, 1988 (hereinafter referred to as “MV Act”) and sentenced to undergo punishment as detailed hereinbelow: Offence u/Sections Sentence Amount of Fine (Rs.) Default Imprisonment 279 of IPC 6 Months S.I. Rs.500/- 1 Month S.I. 304(A) of IPC 1 Year S.I. Rs.2000/- 3 Months S.I. 134 of MV Act -- Rs.500/- 15 Days S.I. The applicant also seeks quashing of the judgment dated 24.06.2010 passed by the learned 3rd Additional Sessions Judge, Surat (hereinafter referred to as “learned Appellate Court”) in Criminal Appeal No.36/2008, whereby the judgment and order conviction and sentence dated 16.03.2008 passed by the learned trial Court has been upheld and confirmed. 2. Upon issuance of Rule, learned APP Mr. L.B. Dabhi appeared for the respondent – State. 3. The succinctly stated facts of the prosecution case are as under: 3.1. One Vijaybhai Chimanbhai complaint (Exh.5) against the alleging that the accused was Tank (PW-1) has filed the present applicant – accused driving the S.T. Bus bearing registration No.GK-18-V-9289 in rash and negligent manner on 14.10.2006 at 10.30 p.m. while Anand (hereianfter referred to as “deceased”) i.e. the brother of the complainant was driving the motorcycle bearing registration No.GUL-8447 on the way from village Laskana towards Kamrej Cross Road and at that time, S.T. Bus dashed with the motorcycle and ran over the deceased and due to grievous hurt, deceased succumbed. In this regard complaint (Exh.5) came to be lodged against the present applicant – accused on 15.10.2006. After collecting the evidence, Investigating Officer filed the charge-sheet against the present applicant – accused and after considering the evidence produced on record by the prosecution, the learned trial Court has been pleased to hold the accused guilty and recorded the conviction. 4.0. In this regard complaint (Exh.5) came to be lodged against the present applicant – accused on 15.10.2006. After collecting the evidence, Investigating Officer filed the charge-sheet against the present applicant – accused and after considering the evidence produced on record by the prosecution, the learned trial Court has been pleased to hold the accused guilty and recorded the conviction. 4.0. Learned advocate Mr. Suraj A. Shukla for the applicant – accused has vehemently that the learned trial Court has committed an error in recording the conviction in absence of any eye-witness and the so-called eye-witness is a chance witness. He happens to be the friend of the complainant. Even it is next to impossible to believe that in the dark night, he had seen the incident as he was driving the motorcycle at the distance of more than 50 feet. Further, both the Courts below have not considered the fact that the conductor of the S.T. Bus has also turned hostile. Despite no offence is committed by the present applicant is involved, he has been involved subsequently. Even, the conductor of the S.T. Bus, who is the best witness of the incident and who has been examined by the prosecution, has not supported the prosecution case. Both the Courts below have not considered the fact that the Investigating Officer has not recorded statement of any independent witness and in absence of any allegation or the proof of rash and negligent driving, present applicant – accused is convicted merely on the basis of timing and route of the S.T. Bus. Even the so-called eye-witness is unable to say anything about the description of the S.T. Bus. Even, he does not know as to whether S.T. Bus was CNG or Diesel. In the complaint it has been stated that the S.T. Bus was CNG, which fact substantiates the fact that the so-called eye-witness has not personally seen the incident and was not present at the place of incident. Thus, the witness relied on by the prosecution is not reliable and the complainant was not having any personal knowledge about the accident. Even the panch witnesses have also turned hostile. The witnesses are hearsay witnesses and not at all reliable. He has submitted that the findings recorded by the learned trial Court is perverse. Thus, the witness relied on by the prosecution is not reliable and the complainant was not having any personal knowledge about the accident. Even the panch witnesses have also turned hostile. The witnesses are hearsay witnesses and not at all reliable. He has submitted that the findings recorded by the learned trial Court is perverse. Hence, he has requested to allow the present revision application and quash and set aside the convicted recorded by the learned trial Court and upheld by the learned appellate Court as there was no rashness or negligence on the part of present applicant – S.T. Bus driver. 5.0. Per contra, learned APP has vehemently opposed the present application and stated that the present applicant is convicted by the learned trial Court and conviction is upheld by the learned appellate Court and thus, there are concurrent findings of fact recorded by both the Courts below. He has stated that in criminal revision application, scope of interference by this Court is very limited and re-appreciation of evidence is not permissible. In support of his submissions, he has relied on the decision of the Hon’ble Apex Court in the case of Malkeet Singh Gill vs. State of Chattisgarh reported in (2022) 8 SCC 204 and has requested to dismiss the present criminal revision application. 6. Having heard learned advocates appearing for respective parties and scanning the evidence produced before the learned trial Court, it appears that the complaint produced at Exh.5 was filed at the instance of Vijay Chimanbhai Tank, who happens to be the brother of the deceased. He is not an eye-witness but at the instance of Nasirkhan Jamilkhan Pathan (PW-4, Exh11), he came to know about the incident. As per the case of prosecution, said Nasirkhan Pathan is the eye-witness of the incident. In the evidence of the complainant, he has stated that on the fateful day, his younger brother was driving motorcycle and going towards Kamrej cross road and at that time, S.T. Bus dashed with the motorcycle and driver of S.T. Bus fled away. Subsequently, he got the number of S.T. Bus and the route of said S.T. Bus was from Dahod to Godhra. The incident took place at 10.30 p.m. and subsequently, the applicant-accused came to be arrested. Subsequently, he got the number of S.T. Bus and the route of said S.T. Bus was from Dahod to Godhra. The incident took place at 10.30 p.m. and subsequently, the applicant-accused came to be arrested. The complainant is examined by the learned advocate for the defence wherein he has admitted that he has not seen the incident and he has no personal knowledge, as it is an undisputed fact that the said witness is not an eye-witness. 6.1. Both the Courts below have relied on the evidence of Nasirkhan Pathan (PW-4, Exh.11). The said witness has stated that he was driving his motorcycle behind the S.T. Bus at a distance of 25 feet and while the S.T. Bus was overtaking the motorcycle being driven by deceased, the S.T. Bus hit on the left side of the motorcycle driven by the deceased and the S.T. Bus ran over the deceased. He has also stated that the number of S.T. Bus was GJ-18V-9289 and bus driver driver fled away. The said witness is cross-examined wherein he has admitted that at the time of incident, there was dark. He has admitted that he is the friend of complainant, S.T. Bus did not overtake his motorcycle. The said witness is also cross-examined by the defence wherein he has stated that in the surrounding area there was no light and he has also stated that though the S.T. Bus was at a distance of 50 feet, he had seen the number and colour of the S.T. Bus. The said witness has also stated that no Test Identification Parade is conducted and he has not seen the accused. 6.2. Another witness Rameshbhai Tidabhai Parghi (PW-6), who was the conductor of the S.T. Bus, is examined at Exh.16. He has not supported the case of prosecution. As per the evidence of the said witness, he has not seen any incident and has not heard any noise. He has stated that after they reached Dahod Bus Depot, it came to his knowledge that the incident took place and during 9 p.m. to 11 p.m., there were route of 4 to 5 buses going towards Dahod from Surat. The said witness has not supported the case of prosecution. 6.3. He has stated that after they reached Dahod Bus Depot, it came to his knowledge that the incident took place and during 9 p.m. to 11 p.m., there were route of 4 to 5 buses going towards Dahod from Surat. The said witness has not supported the case of prosecution. 6.3. The Investigating Officer Kamabhai Amratbhai (PW-5) is also examined by the prosecution at Exh.12, who has admitted that he has not recorded any statement of independent witnesses and that he has recorded statement of only the relative of the deceased. Except this, no any witness is examined by the prosecution. The panchnama is produced at Exh.7. The inquest panchnama is produced at Exh.8 and post-mortem report is produced at Exh.9. So far as factum of death of deceased is concerned, it is not in dispute. Even the fact that the accused was driving the S.T. Bus is not in question. Hence, insofar as question of identity is concerned, non-conducting of TI parade becomes irrelevant. 6.4. Now, in light of the aforesaid evidence the learned trial Court has assigned reasons and said order is confirmed by the judgment of the learned Appellate Court. Going through the reasons assigned by both the Courts below, it appears that both the Courts below have mainly relied on the evidence of Nasirkhan Jamilkhan Pathan (PW-4) and on the basis of doctrine of res ipsa loquitur both the Courts below have recorded the conviction. 7. In the present case, the applicant is convicted for the offences under Sections 279 and 304(A) of the IPC. In order to prove the offence under Sections 279 and 304(A) of the IPC, prosecution has to prove the following ingredients: (i) (a) the accused was driving the vehicle on public way, (b) such driving was done in a rash and negligent manner to endanger human life or likely to cause hurt or injury to any other person. For the purpose of section 279, rashness and negligence must be described as criminal rashness or criminal negligence. It must be more than mere carelessness or error of judgment. The Court has to adopt another parameter, i.e. ‘reasonable care’ in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree. The Court has to adopt another parameter, i.e. ‘reasonable care’ in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree. The other principle that is pressed in aid by the courts in such cases of negligence is the doctrine of res ipso loquitur. This doctrine serves two purposes – one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. (ii) In order to prove offence under Section 304-A of the IPC, the conditions to be satisfied for the conviction are as under: (a) there must be death of the person in question; (b) the accused must have caused such death; and (c) that such act of the accused was rash and negligent and that it did not amount to culpable homicide. 7.1. Upon perusal of the complaint and the evidence of the complainant, Nasirkhan Pathan (PW-4) and Investigating Officer Kamabhai Amratbhai, no one has deposed or uttered a whisper about rash and negligent driving of the accused. Merely the complainant has stated in the complaint and deposed that the applicant-accused was driving the S.T. Bus in full speed but the speed of the vehicle would not amount to rashness or negligence. In the offence under Section 304-A or 279 of the IPC, prosecution must have to prove that the accused was driving the vehicle in rash and negligent manner. Admittedly, the prosecution witnesses have not stated anywhere in the evidence that the offending vehicle was driven by the accused in rash and negligent manner. Learned trial Court as well as the learned appellate Court have also relied on the doctrine of res ipsa loquitur but it is needless to say that even in the panchnama of scene of offence, no any detail is stated. The width of the road is 22 feet and is a one way road. Both the vehicles were proceeding in the same direction. The width of the road is 22 feet and is a one way road. Both the vehicles were proceeding in the same direction. It is admitted fact that the defence has not put any effort to prove any contributory negligence on the part of deceased however, in a criminal trial prosecution has to stand on its own leg, prosecution cannot take advantage of weakness of defence. Both the Courts below have relied on the doctrine of res ipsa loquitur but in absence of any material on the record, no presumption of rashness or negligence could be drawn by invoking the maxim or doctrine of res ipsa loquitur. In the case of State of Karnataka vs. Satish reported in (1998) 8 SCC 493 , the Hon’ble Supreme Court has been pleased to hold that there was no any evidence on record to establish rash and negligent driving of the vehicle on the part of the accused, no presumption can be drawn and it is for the prosecution to prove and establish rashness or negligence on the part of the accused before conviction under Section 304-A or 279 of the IPC. 7.2. The evidence of Nasirkhan Pathan (PW-4) who has deposed that while overtaking the motorcycle being driven by the deceased, the incident took place and motorcycle dashed at the left side of the S.T. Bus, from the panchnama, no any fact or description emerged from the panchnama. The width of the road is 22 feet and motorcycle is lying at 5 feet towards northern side of the road. Considering the said fact, it appears that the vehicle could have passed through safe passage. But the damage caused to the motorcycle is on the front side. The headlight, odometer and steering bar are badly damaged and bent on front side. If the S.T. Bus would have hit or dashed the motorcycle from behind then the question of any damage on the front side of the motorcycle. Even on what basis both the Courts below have invoked and relied on the doctrine of res ipsa loquitur is not revealed from the record. 7.3. The other line of approach is that res ipsa loquitur is not a special rule of substantive law and that functionality is only an aid in the evaluation of evidence. Even on what basis both the Courts below have invoked and relied on the doctrine of res ipsa loquitur is not revealed from the record. 7.3. The other line of approach is that res ipsa loquitur is not a special rule of substantive law and that functionality is only an aid in the evaluation of evidence. The maxim res ipsa loquitur does not require the raising of any presumption of law which must shift the onus on the accused. It only, when applied appropriately, allows the drawing of an inference of the fact, as distinguished from the mandatory presumption. In other words, the doctrine of res ipsa loquitur is only a means of estimating logical probability from the circumstances of the incident. In this regard, reference is also required to be made to the case of Syad Akbar vs. State of Karnataka reported in (1980) 1 SCC 30 wherein the reasons for non-application of doctrine of res ipsa loquitur in the criminal trial are stated as under: “(i) in a criminal trial, the burden of proving everything essential to the establishment of the charge against the accused always rests on the prosecution, as every man is presumed to be innocent until the contrary is proved, and criminality is never to be presumed subject to statutory exception. No such statutory exception has been made by requiring the drawing of a mandatory presumption of negligence against the accused where the accident ‘tell its own story’ of negligence of somebody; (ii) there is a marked difference as to the effect of evidence, viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. 7.4. Further, in the case of Satish (Supra), the Hon’ble Supreme Court was considering a case where a truck driving at a high speed had turned turtle and fifteen persons lost their lives as a result of it. 7.4. Further, in the case of Satish (Supra), the Hon’ble Supreme Court was considering a case where a truck driving at a high speed had turned turtle and fifteen persons lost their lives as a result of it. After holding that the respondent was driving the truck at a high speed, the trial Court and the appellate Court pressed into service the doctrine of res ipsa loquitur to hold the respondent guilty. The High Court, however, had acquitted the driver of the truck. The Supreme Court concurred with the view taken by the High Court and observed that merely because the truck was being driven at a high speed did not be speak of either negligence or rashness by itself. The Supreme Court observed that in a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. It is observed that criminality is not to be presumed, subject of course, to some statutory exceptions. The Supreme Court concluded, on the facts of the case before it that, in the absence of any material on the record, no presumption of rashness or negligence could be drawn by invoking the maxim res ipsa loquitur. In Mohammed Aynuddin Alias Miyam v. State of A.P. reported in (2000) 7 SCC 72 a passenger fell of the bus and was crushed under its rear wheel. The Supreme Court observed that the principle of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. It held that the said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrong doer. The Court had also observed that it is a wrong proposition that for any motor accident negligence of the driver should be presumed. In that case the accused was acquitted. 7.5. As discussed herein above, it becomes crystal clear that the conviction under Section 304-A read with Section 279 of the IPC cannot be founded merely on the doctrine of res ipsa loquitur. In that case the accused was acquitted. 7.5. As discussed herein above, it becomes crystal clear that the conviction under Section 304-A read with Section 279 of the IPC cannot be founded merely on the doctrine of res ipsa loquitur. Under Section 279 of the IPC, the rashness or negligence must be what may fairly can be described as a criminal rashness or criminal negligence. As accused can be convicted of the offence under Section 279 of the IPC, there must be more than some error of judgment or mere carelessness on the part of accused to render a person liable for criminal negligence. Even to draw any such presumption there is no material or evidence on record collected by the Investigating Officer. Even, the panchnama is not properly drawn. In the case on hand, the panchnama carried out is below par. The accident is not investigated in proper and scientific manner, photograph or the site plan is not prepared or produced. The panchnama of scene of offence is also not satisfactory. The exact point of impact as well as any tyre skid marks or damage to bus is also not mentioned. Even, where vehicles come to rest after collision are not demarcated clearly. Such exercise would enable the Court to examine the evidence in much more objective manner. While the onus is on the prosecution to establish the case beyond all reasonable doubt that the vehicle was being driven in rash or negligent manner and what is rash or negligent driving would depend on the fact and circumstances of each case. In the present case, witness has not stated about the rash and negligent driving on the part of the applicant-accused. Even if it is believed that the vehicle was being driven by the accused in full speed, ‘high speed’ itself is an unclear expression. There is nothing on record to establish that the accused drove the vehicle in rash and negligent manner. Therefore, the applicant is not liable to be convicted under Sections 279 and 304-A of the IPC. 7.6. The prosecution has also failed to establish the offence under Section 184 of the MV Act against the present applicant. Insofar as offence under Section 134 of the MV Act is concerned, the witness has deposed that under the fear the applicant-driver of S.T. Bus fled away. 7.6. The prosecution has also failed to establish the offence under Section 184 of the MV Act against the present applicant. Insofar as offence under Section 134 of the MV Act is concerned, the witness has deposed that under the fear the applicant-driver of S.T. Bus fled away. Considering the said fact and there being two versions emerging from the evidence that there was no noise of dashing heard by the witness conductor and he came to know about the incident when they reached the Dahod Bus Depot, as two version or set of evidence is coming out on record then the benefit of doubt goes to the present applicant-accused. Furthermore, in the case of Kanaiyalal Arjandas vs. Tribhovandas Devsibhai Pandit & Anr. reported in 1997 (2) GLH 864 , this Court held that burden is on the prosecution to prove that rash and negligent act was committed by the person who is charge-sheeted. In the present case, the prosecution has not proved that the applicant-accused was driving the S.T. Bus in rash and negligent manner. 8. As discussed hereinabove, the learned appellate Court also recorded the finding on the same line without keeping in mind the aforesaid fact. It is needless to say that while exercising power under Section 374 of the CrPC in criminal appeal, it is the duty of appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied on or not and even if it can be relied upon, then whether the prosecution can be said to have proved the case beyond all reasonable doubts on the basis of the said evidence. The said principle is also laid down by the Hon’ble Supreme Court in the case of Padam Singh vs. State of U.P. reported in (2000)1 SCC 621 . The law clearly expresses that the appellant Court should dispose of the appeal on merits not merely by perusing the reasoning given by the trial Court but should cross-check the reasoning with the evidence on record with a view to satisfy itself that the reasoning and findings recorded by the learned trial Court are consistent with the material on record. The law clearly expresses that the appellant Court should dispose of the appeal on merits not merely by perusing the reasoning given by the trial Court but should cross-check the reasoning with the evidence on record with a view to satisfy itself that the reasoning and findings recorded by the learned trial Court are consistent with the material on record. As discussed hereinabove, the finding recorded by the learned trial Court qua rash and negligent driving in absence of material evidence on record is perverse and therefore, interference by this Court in exercise of revisional jurisdiction is permissible. 9. In view of the above discussion, as the findings recorded by the learned trial Court are noticed to be perverse qua rash and negligent driving, there is no bar in interfering with the conviction in exercise of revisional jurisdiction. Considering the peculiar facts and circumstances of the case on hand, the authority relied upon by the learned APP in the case of Malkeet Singh Gill (Supra) would not be any assistance to the respondent – State. 10. Resultantly, present revision application is allowed. The impugned judgment and order dated 16.03.2008 passed by the learned Judicial Magistrate, First Class, Kathor, District Surat in Criminal Case No.178/2007 recording conviction against the applicant - BHARATSINH SOMABHAI BAMAN as well as the judgment dated 24.06.2010 passed by the learned 3rd Additional Sessions Judge, Surat in Criminal Appeal No.36/2008 are hereby quashed and set aside. The applicant – accused – BHARATSINH SOMABHAI BAMAN is given the benefit of doubt and exonerated from all the charges leveled against him for the offence punishable under Sections 279 and 304(A) of the Indian Penal Code, 1860 and under Sections 177, 184 and 134 of the Motor Vehicles Act, 1988. Bail bond, if any, taken during the pendency of Criminal Revision Application stands canceled. Amount of fine, if any, paid by the applicant shall be refunded to him after due verification. Rule is made absolute to the aforesaid extent.