This Criminal Revision Application is preferred against the judgment and order rendered by Sessions Court, Patan on 31.08.2007, in Criminal Appeal No.16 of 2006. The said Appeal arose out of the judgment and order rendered by the Court of Judicial Magistrate, First Class, Harij, in Criminal Case No.492 of 1998 on 11.08.2006, convicting the revisionist for an offence punishable under Sections 279 and 304(A) of the Indian Penal Code and Sections 177, 184 and 134 of the Motor Vehicles Act while acquitting him for the offences punishable under Sections 429 and 337 of the Indian Penal Code. 2. For the offence punishable under Section 379, the revisionist was sentenced to undergo six months simple imprisonment with fine of Rs.500/-, in default thereof, to further undergo simple imprisonment of 15 days and for the offence punishable under Section 304(A), he was sentenced to undergo two years simple imprisonment with fine of Rs.500/-, in default thereof, to further undergo simple imprisonment of 30 days. No separate sentence for offences punishable under Sections 177, 184 and 134 of the Motor Vehicles Act was imposed. The sentences were ordered to run concurrently.
3. The revisionist was the original accused, who was charge-sheeted and tried for an incident occurred on 11.09.1998 near Nursery between Timba Hanuman and Sarval. The revisionist was driving ST Bus No.GJ-1-Z-3310.
The bus hit a camel-cart on which two persons were travelling. Because of impact, one person travelling in a camel-cart died, so also the camel.
4. Both the Courts below found that though the panch witnesses have not supported the panchnama of the place of incident, the conductor of the bus has deposed that the revisionist was driving the bus and the incident had occurred on 24 feet wide road. The first informant Keshabhai Chhaganbhai Raval claims to have been travelling on the camel-cart and he said that the bus came from opposite direction at a very high speed and dashed with camel-cart, as a result of which, he suffered injuries, whereas, his brother Ramabhai expired. This witness in his deposition before the Court does not give the correct number of the bus involved in the accident. The number of the vehicle involved in the accident was written on his palm by some scooterist. That scooterist was not examined. There is no other eye-witness to the incident, who is examined, except the conductor. The conductor in his deposition stated that the revisionist was driving the bus and the accident occurred. He does not depose that how the accident occurred, how the bus was driven, etc.
5. The panch witnesses to the panchnama have not supported the prosecution case. The panchnama of investigating officer is also silent on brake marks, etc., to ascertain the exact location of the impact and manner in which the accident may have occurred.
6. On screening the entire evidence, it is found that there is evidence of the conductor of the bus to show that the revisionist was driving the bus, when the incident occurred. There is evidence of the first informant to show that the bus was being driven at a high speed, but, the settled proposition of law is that speed cannot be termed as 'negligence'. Speed and negligence are not synonym with each other and there is total lack of evidence on either rashness or negligence on part of the revisionist. There is no evidence worth any to show as to how the incident occurred. It was, therefore, an error on part of the trial Court to have fastened criminal liability on the revisionist. In fact, there is total lack of evidence on the aspect of negligence and, therefore, this Court is of the view that the judgments of both the Courts below with the concurrent findings, cannot be permitted to stand.
7. This revision application, therefore, deserves to be allowed and same is allowed. Conviction of the revisionist as recorded by the Judicial Magistrate, First Class Court, Harij, in Criminal Case No.492 of 1998, by judgment and order dated 11.08.2006, as confirmed by the Sessions Court, Patan in Criminal Appeal No.16 of 2006 by judgment and order dated 31.08.2007, is hereby set aside. The revisionist is acquitted from the charges levelled against him. Rule is, thus, made absolute.
[A.L. Dave, J.] #MH Dave