1. By way of the present Revision under Section 397 read with 401 of the Code of Criminal Procedure the petitioner has challenged the judgment and order dated 25.8.1998 passed by the learned Judicial Magistrate (First Class), 1st Court, Bharuch, in Criminal Case No.29579 of 1995 convicting the petitioner for the offences punishable under Sections 279, 337 and 304(A) of the Indian Penal Code and under Sections 177 and 184 of the Motor Vehicles Act and imposing S.I. for a period of 6 months and fine of Rs.6,500. Against the said judgment and order the petitioner preferred Criminal Appeal No.34 of 1998 before the learned Additional Sessions Judge. The learned Sessions Judge dismissed the Appeal by judgment and order dated 25.8.2001 confirming the judgment and order dated 25.8.1998 passed by the learned Judicial Magistrate (First Class), 1st Court, Bharuch, in Criminal Case No.29579 of 1995.
2. Case of the prosecution in brief is that the petitioner was driving vehicle tempo bearing no. GQB 6563 in excessive speed and in negligent manner, as a consequence thereof, the tempo had turned turtle and the passengers sitting therein had sustained injuries whereas one of the passengers had died. Pursuant thereto, offence was registered against the petitioner.
3. Thereafter, investigation was carried out and statements of several witnesses were recorded. During the course of investigation, accused was arrested and, ultimately, charge sheet came to be filed against him in learned Magistrate Court.
4. Thereafter, charge came to be framed against the accused and was explained to the accused, to which the accused pleaded not guilty and claimed to be tried.
5. In order to bring home the charges against the accused person, prosecution has examined several witnesses and also produced documentary evidence.
6. Thereafter, after filing closing pursis by the prosecution, further statement of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused person has denied the case of the prosecution and submitted that a false case is filed against him.
7. Heard Ms. Alpa Dave, learned advocate appearing for Mr.Jitendra Malkan, for the petitioner–original accused. She has contended that the Courts below have not properly appreciated the evidence of the complainant, Kanjanbhai Ex.6 and it has caused great prejudice to the case of the present petitioner. The Courts below have not appreciated the evidence of Manjulaben at Ex.
8 which has caused great prejudice to the case of the petitioner. It is contended that defence version is not considered by the learned Magistrate Court. It is contended that the learned Judge has observed that sufficient time was given to the prosecution yet the prosecution has not examined the Investigating Officer in support of the prosecution case and therefore, the same is fatal to the prosecution. She has read medical evidence of the Medical Expert and contended that the learned Judge has not considered the evidence of the independent witnesses in their true perspective. She has read evidence of the complainant and contended that so far as identification of the present petitioner is concerned involvement of the present petitioner in offence in question does not primafacie appear. It is contended that when the identification of the petitioner – original accused is not proved, the learned Judge cannot convict present petitioner for the offence under Section 304(A) read with Section 279 of the IPC. It is contended that from the oral version of the witnesses it does not appear that the present petitioner was driving in rash and negligent manner. She has read contents of the panchnama of place of offence and contended that it was challenged before the learned Sessions Court but the learned Sessions Court has not considered the defence version. She has lastly contended that the judgments and orders of both the Courts below are contrary to the provisions of law and both the Courts below have committed grave error of law and conviction of the present petitioner is required to be set aside.
8. Heard Mr.H.L.Jani, learned APP for the respondent – State. He has contended that the Investigating Officer is not examined by the prosecution. It is contended that though the the Investigating Officer is not examined yet case of the prosecution cannot become fatal.
He has relied on the decision in the case of Ramanand Yadav Vs. Prabhu Nath Jha, reported in AIR 2004 SC 1053, wherein in para15 Apex Court has observed as under: by the evidence on record that the village was a faction ridden one. In some cases persons may not like to come and depose as witnesses and in some other cases the prosecution may carry the impression that their evidence would not help it as there is likelihood of partisan approach so far as one of the parties is concerned. In such a case mere non examination would not effect the prosecution version. But at the same time if the relatives or interested witnesses are examined, the Court has a duty to analyse the evidence with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the evidence was biased. Whenever a plea is taken that the witness is partisan or had any hostility towards the accused foundation for the same has to be laid. If the materials show that there is partisan approach, as indicated above the Court has to analyse the evidence with care and caution. Additionally, the accused persons have always the option of examining the left out persons as defence witnesses.”
9. He has further relied on the decision of the Apex Court in the case of Alister Anthony Pareira Vs. State of Maharashtra, reported in (2012) 2 SCC 648, wherein in headnote (E) it is observed that, “rash and negligent driving causing simple injuries to victims, conviction under Section 337 of the Penal Code upheld”.
10. He has read oral version of the complainant and contended that complainant, Kanchanbhai Chhotabhai, is examined by the prosecution who has identified the present petitioner – original accused before the learned Judge. He has read oral version of the witnesses, namely, Manjulaben, Maheshbhai, Bhagubhai and Motibhai and also read the contents of the panchnama of place of offence and contended that looking to the panchnama of place of offence it primafacie appears that the vehicle in question was driven at more than 110 kilometer speed. He has contended that if the driver of the vehicle is driven at more than 110 kilometers' speed he can easily loose the control over the vehicle. Looking to the evidence of the Medical Expert and postmortem note, which is carried out by him it primafacie appears that the deceased received fatal injury due to the accident. He has read crossexamination of this witness and contended that the petitioner has failed to drop defence version before the learned Judge. It is further contended that when the identification of the accused primafacie appears to have been proved, then there is no question to show that the learned Judge has committed grave error of law. It is lastly contended that even from the statement recorded under Section 313 of the Criminal Procedure Code it was the duty of the present petitioner to explain the incident, but it is not explained by the present petitioner. He has contended that in the judgments and orders of both the Courts below all the evidences are discussed and the same were considered in favour of the prosecution. The judgments and orders of both the Courts below therefore, do not require any interference.
11. I have heard the learned advocates for the respective parties and perused the papers produced before me. I have also considered the submissions advanced by the learned advocates for the rival parties. I have gone through the impugned judgments and orders passed by the learned Judge and oral as well as documentary evidence produced on the record. I have read the oral evidence of the prosecution witnesscomplainant and also perused the charge framed against the petitioner.
12. Looking to the contents of the panchnama of place of offence it shows that vehicle is damaged due to the said accident. The present petitioner was driving the vehicle in rash and negligent manner and the said accident happened due to such rash and negligent driving. I have perused evidence of witnesses, namely, Manjulaben, Maheshbhai, Bhagubhai and Motibhai, who are eye witness and they were present in the vehicle also. They have explained that present petitioner was driving the vehicle in rash and negligent manner. Even complainant, Kanchanbhai has identified present petitioner. The role of the present petitioner primafacie appears that he was driving in rash and negligent manner and it was also not challenged by the present petitioner in the crossexamination. In view of observations made by the Apex Court in the above cited decisions I find that the findings recorded by both the Courts below are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.
13. Hence, in view of the foregoing reasons, present Revision is dismissed. Rule is discharged. The judgment and order of conviction and sentence dated 25.8.1998 passed by the learned Judicial Magistrate (First Class), 1st Court, Bharuch, in Criminal Case No.29579 of 1995 as confirmed by the learned Sessions Judge dismissing the Criminal Appeal No.34 of 1998 by judgment and order dated 25.8.2001 is hereby confirmed. The petitioner is on bail. Therefore, his bail bond shall stand cancelled. The petitioneraccused is, directed to surrender himself before the Jail Authority within a period of four weeks from today to undergo the remaining sentence, if any, failing which the Court concerned is directed to issue non bailable warrant against the petitioner accused to effect his arrest. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.
(Z. K. SAIYED, J.) kks