Gujarat High Court
Bharatsinh vs State on 2 December, 2010
Author: Harsha Devani
Bench: Harsha Devani
Gujarat High Court Case Information System
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CR.RA/386/2003 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 386 of 2003
For
Approval and Signature:
HONOURABLE
MS. JUSTICE HARSHA DEVANI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
BHARATSINH
ABHESINH JITALIA, - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================
Appearance
:
MR ADIL
MEHTA for
Applicant(s) : 1,
MR MAULIK G NANAVATI, ADDITIONAL PUBLIC
PROSECUTOR for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MS. JUSTICE HARSHA DEVANI
Date
: 16/11/2010
ORAL
JUDGMENT
1. By this application under section 401 read with section 397 of the Code of Criminal Procedure, 1973 (the Code), the applicant has challenged the order dated 30th July, 2003 passed by the learned Joint District Judge, Bharuch, 4th Fast Track Court, Rajpipla in Criminal Appeal No.15 of 2002, whereby he has confirmed the judgment and order dated 22nd April, 2002 passed by the learned Judicial Magistrate First Class, Valiya in Criminal Case No.94 of 1999 whereby the applicant had been convicted for the offences punishable under sections 279 and 429 of the Indian Penal Code and sections 177 and 184 of the Motor Vehicles Act, 1988, and sentenced to three months' simple imprisonment for the offence punishable under section 279 of the Indian Penal Code and fine of Rs.1,000/- and, in default, to undergo further simple imprisonment for one month. For the offence under section 429 of the Indian Penal Code, the applicant has been sentenced to undergo simple imprisonment for a period of one year and fine of Rs.2,000/- and in default, to undergo further imprisonment for a period of three months. The applicant has also been directed to pay Rs.1,500/- by way of compensation to the owner of the bullock, Motibhai Peechabhai Vasava. In the light of the fact that the applicant has been sentenced for the offence punishable under section 279 of the Indian Penal Code, no sentence has been awarded in respect of the offences punishable under sections 177 and 184 of the Motor Vehicles Act.
2. The facts of the case stated briefly are that one Motibhai Peechabhai Vasava lodged a complaint with the Valiya Police Station which came to be registered as a First Information Report vide C.R. No.II-16/1999 for the offences under sections 279 and 429 of the Indian Penal Code and sections 177 and 184 of the Motor Vehicles Act. The substance of the complaint was that on 27th January, 1999 at 9 o'clock in the morning, the complainant alongwith his brother Shanabhai had loaded cotton in the bullock-cart and were proceeding towards Valiya Gin. In the meanwhile, at about 10 o'clock in the morning, between Valiya and Desad, an S.T. bus bearing No.GJ-18B-174 which was coming from the opposite side at full speed and was being driven in a rash manner, dashed against the bullock-cart due to which the bullock sustained a cut on its body. The driver fled by driving the bus at full speed. Pursuant to the said first information report, investigation came to be carried out and chargesheet came to be submitted in the concerned court. After taking cognizance of the offence, summons was issued to the applicant-accused. Upon culmination of the trial, the learned Judicial Magistrate First Class, Valiya, vide judgment and order dated 22nd April, 2002, held the applicant guilty of the offences punishable under section 279 and 429 of the Indian Penal Code and sections 177 and 184 of the Motor Vehicles Act and sentenced him as noted hereinabove. Being aggrieved, the applicant preferred an appeal before the learned Joint District Judge, Bharuch, 4th Fast Track Court, Rajpipla who, vide the impugned judgment and order dated 30th July, 2003 passed in Criminal Appeal No.15 of 2002, dismissed the appeal and confirmed the order passed by the learned Judicial Magistrate.
3. Mr. Adil Mehta, learned advocate for the applicant referred to the deposition of the various witnesses as well as panchnama of the scene of offence and other evidence on record in detail. Referring to the deposition of the complainant - Motibhai Peechabhai who has been examined as prosecution witness No.1, it was submitted that the evidence of the complainant was contradictory inasmuch as in the first information report he had stated that he alongwith his brother Shanabhai were going towards Valiya whereas in his deposition, he has stated that he was going alone with his four year old grandson Prakash. It was further submitted that the prosecution has neither examined the bus conductor nor the passengers of the bus. Even the panchnama of the bus or the bullock-cart had not been carried out. After the death of the bullock, no inquest had been made nor had any post-mortem been performed to ascertain the cause of death. It was submitted that Shanabhai, the brother of the complainant as well as the panchas have not supported the case of the prosecution. It was submitted that in the light of the fact that both the panchas have turned hostile, there is no corroboration to the panchnama. Moreover, the panchnama does not indicate any significant marks to show that any accident as alleged had occurred. It was further submitted that no independent witness had been examined and that there was a substantial difference between the evidence of the complainant and doctor and as such, the applicant is even otherwise entitled to be granted the benefit of doubt and is required to be acquitted. It was, urged that on the evidence as emerging on the record of the case, neither the offence punishable under sections 279 and 429 of the Indian Penal Code nor could the offence punishable under sections 177 and 184 of the Motor Vehicle Act be said to have been proved. In the circumstances, both the courts below had erred in holding that the applicant was guilty of the offences punishable under sections 279 and 429 of the Indian Penal Code and sections 177 and 184 of the Motor Vehicles Act.
4. It was further pointed out that during the course of the proceedings before the Trial Court, the parties had compromised the matter which had been reduced in writing vide a compromise deed dated 13th September, 2002 pursuant to which an agreed amount had been paid to the complainant as compensation for the death of the bullock. The learned advocate further submitted that pursuant to the order passed by the learned Judicial Magistrate, the applicant has paid the amount of Rs.1,500/- which he had been directed to pay by way of compensation to the complainant and that even in case the application is decided in favour of the applicant, the applicant would not seek refund of the amount already paid. Alternatively, it was submitted that since 11 years have already elapsed since the date of the accident, and the parties have compromised the matter, the applicant is ready to pay any further amount as may be deemed fit by the Court and that the sentence may be reduced to the sentence undergone
5. Mr. Maulik Nanavati, learned Additional Public Prosecutor has opposed the application. It was submitted that the mere fact that the panchas have turned hostile would not detract from the fact that the accident had actually taken place. It was submitted that the first information report had been lodged at the earliest point of time and that the evidence of the veterinary doctor - Shri Nilamkumar Vishnuprasad clearly indicated that the bullock had sustained injuries on account of the accident caused by the bus. Inviting attention to the certificate issued by the veterinarian, it was pointed out that according to the certificate, the bullock had sustained accidental injuries on the thorax, abdomen and hind limbs. It was submitted that though there might be a slight contradiction in the evidence of the complainant, the fact remains that the complainant has categorically stated that the accident had taken place and has given the registration number of the bus in question hence, the minor contradiction in the evidence as regards the person accompanying him would not in any manner discredit his evidence. It was accordingly submitted that the courts below were justified in placing reliance upon the evidence of the complainant as well as the veterinarian and convicting the applicant of the offences alleged and as such no interference is warranted by this Court.
6. This Court has perused the record of the case as produced before the Court as well as the decisions of both the courts below.
7. A perusal of the evidence on record indicates that there is a contradiction in the evidence of the complainant as regards the person accompanying him, inasmuch as in the first information report he has stated that it was his grandson who was accompanying him whereas in his deposition he has stated that his brother Shanabhai was accompanying him. Besides, he has stated that the bullock had sustained a cut on his body whereas, as per the medical certificate issued by the veterinarian, the animal was having accidental injuries on the right thorax, abdomen and hind limbs without specifying that there was any cut on the side as stated in the deposition of the complainant. The injury certificate (Exhibit 15) also does not refer to any cut injury. Moreover, from the evidence of the complainant, it is apparent that despite the fact that the bullock had sustained injuries, he had not taken him to the veterinarian for treatment and that the bullock had died about a month after the accident. Moreover, as has been rightly submitted by the learned advocate for the applicant, despite the fact that the bullock had died, neither had any inquest been made nor had any post-mortem been performed. Besides, apart from the scene of offence panchnama, no panchnama had been carried out of the bus stated to have been involved in the accident nor has any panchnama of the bullock-cart been carried out. In the circumstances except for the evidence of the complainant and the veterinarian which suffer from the aforesaid discrepancies, there is no other corroborative evidence in support of the prosecution case. Considering the contradictions which have been brought on record, it cannot be stated that the prosecution has established its case against the applicant beyond reasonable doubt.
8. Another notable aspect of the matter is that the offence alleged against the applicant is under sections 279 and 429 of the Indian Penal Code. Section 279 IPC lays down that whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punishable with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Section 429 IPC which deals with "Mischief by killing or maiming cattle, of any value or any animal of the value of Rs.50/-" lays down that whoever commits mischief by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow or ox, whatever may be the value thereof, or any other animal of the value of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. Insofar as section 279 of the Indian Penal Code is concerned, the same would be applicable when a person drives any vehicle on any public way in a manner so rash and negligent as to endanger human life or to be likely to cause hurt or injury to any person. In the facts of the present case, though the allegation is not that the applicant was driving the vehicle in a manner so rash and negligent as to endanger human life inasmuch as in the present case, it is the bullock which has been injured and not any human being, at best, it may be said that this provision is attracted. Insofar as section 429 IPC is concerned, on the facts of the case, the same would not, in any manner, be attracted inasmuch as there is no allegation to the effect that the applicant had committed any mischief by killing, poisoning, maiming or rendering useless the bullock in question. The provisions of Section 429 of the Indian Penal Code would be attracted only when there is a deliberate attempt to kill or maim the animals referred to in the said section. An accidental maiming of any of the animals referred to in the said provision would not attract the provisions of section 429 of the Indian Penal Code. In the circumstances, insofar as resorting to section 429 of the Indian Penal Code is concerned, the same is totally misconceived and unjustified.
9. In the light of the aforesaid, on the basis of the evidence on record, it is apparent that the prosecution has not been able to prove beyond doubt that the applicant was guilty of the offences alleged. Besides, insofar as the provisions of section 429 of the Indian Penal Code are concerned, the same could not at all have been invoked. In the circumstances, the question of convicting the applicant for the said offence would not arise. In the circumstances, the applicant is entitled to be given the benefit of doubt and deserves to be acquitted.
10. For the foregoing reasons, the application succeeds and is accordingly allowed. The impugned judgment and order dated 30th July, 2003 passed by the learned Joint District Judge, Bharuch, 4th Fast Track Court, Rajpipla in Criminal Appeal No.15 of 2002 confirming the judgment and order dated 22nd April, 2002 passed by the learned Judicial Magistrate First Class, Valiya in Criminal Case No.94 of 1999 is hereby quashed and set aside. The order of conviction and sentence passed against the applicant is also quashed and set aside. The applicant is acquitted of the offences alleged. However, in the light of the statement made by the learned advocate for the applicant that the applicant would not seek refund of the amount paid towards compensation for the death of the bullock, the amount paid by the applicant towards compensation to the complainant shall not be required to be returned back to the applicant. Rule is made absolute accordingly.
( Harsha Devani, J. ) hki Top