1. By way of present revision application, filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, the applicant has prayed to quash and set aside the the judgment and order of conviction dated 21st September, 2005 passed by the learned Metropolitan Magistrate, Court No.4 in Criminal Case No.137 of 1998 and convicted the applicant for the offence punishable under Section 279 to undergo simple imprisonment for a period of two months as also fine of Rs.500/-, and in default of payment of fine, ordered to undergo further imprisonment for a period of 30 days and for the offence punishable under Section 304-A, the applicant is convicted to undergo simple imprisonment for a period of six months as also fine of Rs.1,000/-, and in default of payment of fine, ordered to undergo further imprisonment for a period of 30 days. The said judgment and order of conviction is confirmed by the learned Additional City Sessions Judge, Ahmedabad vide his judgment and order of dated 05th May, 2006 in Criminal Appeal No.31 of 2006.
2. The story of the prosecution is that, while taking the bus in reverse at 16.45 hours, because of negligent and rash driving, got the bus run over on innocent old aged person, who died on the spot, because of the said incident.
3. After completion of investigation, charge-sheet was filed against the present applicant for the offence punishable under Sections 279 and 304(A) of the Indian Penal Code as well as under Sections 177 and 184 of the Motor Vehicle Act. After affording full opportunity of hearing, the learned Metropolitan Magistrate, Court No.4, has passed the impugned judgment and order of conviction and sentence.
4. Being aggrieved by the said judgment and order of conviction, the applicant herein has preferred appeal before the Sessions Court. After hearing both the sides, the learned Additional City Sessions Judge, Ahmedabad vide the impugned judgment and order of conviction and sentence dated 05th May, 2006 in Criminal Appeal No.31 of 2006 confirmed the judgment and order of the learned Metropolitan Magistrate, Court No.4, Ahmedabad.
5. Being aggrieved by the said judgment and order of conviction and sentence, the applicant has preferred the present Criminal Revision Application before this Court.
6. Heard Ms.Dilbar Contractor for Mr.P.R. Nanavati, learned counsel for the applicant and Mr.H.L. Jani, learned Additional Public Prosecutor for the respondent-State.
7. Ms.Contractor states that the Courts below have erred in passing the impugned judgment and orders. She has further contended that both the Courts below have grossly erred in not appreciating the documentary evidence as well as oral evidence produced on record. She has contended that the incident had happened while the applicant-driver was taking the bus in reverse situation and he was guided by the conductor. She has contended that the applicant-driver was taking the bus in reverse situation under the supervision of the conductor. The applicant was not driving the bus in rash and negligent manner. The Courts below have not properly considered the evidence of the conductor and held the applicant guilty of the offence. She has further contended that it was the duty of the conductor to properly guide the present applicant in taking the bus in reverse situation. She has further contended that even panch witnesses of the incident have not been examined and such a lacuna while conducting the trial is fatal to the case of the prosecution. She has also contended that prima-facie, it is established that the applicant-driver had taken proper care and caution and therefore, question regarding rash and negligent driving cannot arise. Therefore, the applicant cannot be convicted for the offence punishable under Section 304(A) of the Indian Penal Code. She has read the provision of Section 279 of the Indian Penal Code and contended that the prosecution has failed to prove the case beyond reasonable doubt against the present applicant. She, therefore, contended that looking to the facts of the case, impugned judgment and orders of both the Courts below may kindly be quashed and set aside and the applicant may kindly be acquitted from the charges levelled against him.
8. As against this, Mr.Jani, learned Additional Public Prosecutor for the respondent-State, states that the prosecution has successfully proved the case against the applicant. He has contended that presence of the applicant is proved beyond reasonable doubt. While taking the bus in reverse condition, the applicant had not taken proper care and caution and therefore, the accident in question had happened. He has read the postmortem note and contended that the injuries shown by the medical expert can be possible only due to accident and the cause of death is the accident in question. He, therefore, contended that the impugned judgment and orders of conviction and sentence of both the Courts below is required to be confirmed by this Court.
9. Heard learned counsel for the respective parties as also perused papers produced before me. Both the Courts below have failed in considering the issue of rash and negligent driving by the applicant. It appears from the papers that under the supervision of the conductor, the present applicant-driver was taking the bus in reverse situation. I have not found any substance to say that at the event of driving of the bus, proper care and caution was not taken by the applicant. Nothing is examined by the prosecution that as to how and under which circumstances the victim has received fatal injuries. On that ground, I am of the opinion that the issue of rash and negligent driving is not established beyond reasonable doubt.
10. In view of above, I am not in agreement with the judgment and order of conviction and sentence dated 05th May, 2006 passed by the learned Additional City Sessions Judge, Ahmedabad in Criminal Appeal No.31 of 2006 confirming the judgment and order of conviction and sentence dated 21st September, 2005 passed by the learned Metropolitan Magistrate, Court No.4 in Criminal Case No.137 of 1998.
11. Hence, the present Revision Application is allowed. The judgment and order of conviction and sentenced passed by both the Courts below are quashed and set aside. The applicant is hereby acquitted from the charges levelled against him. Bail bond, if any, shall stand discharged. Fine, if paid, be refunded to the applicant. Since the applicant is on bail, setting him at liberty is not passed. Record and proceedings, if any, be sent back to the Court concerned, forthwith.
(Z. K. Saiyed, J) Anup