Decided on September 08,1983



M.B.SHAH - (1.) The petitioner-accused has filed this revision application against the judgment and order dated 20/01/1983 passed by the Additional City Sessions Judge Court No. 2 Ahmedabad in Criminal Appeal No. 199/82 wherein the appeal filed by the petitioner was dismissed and the order passed by the Metropolitan Magistrate Court No. 3 Ahmedabad on 2/11/1982 in Criminal Case No. 2866/81 wherein the petitioner was convicted under sec. 304-A of the Indian Penal Code and he was sentenced to undergo six months R. I. and to pay a fine of Rs. 700.00 in default to undergo two months further R. I. was confirmed.
(2.) The petitioner accused was a driver of S. T. bus bearing No. G. T. H. 4079 and he was driving the said S. T. bus on 20/11/1981 at about 12 p. m. and was going from Kalupur to Naroda. At that time: one person named Nagindas Ambalal Patel was also going from Kalupur to Naroda side on his scooter bearing No. G.J.M. 1370. The petitioner over took the said scooterist. At that time the S. T. bus dashed with the scooterist and as a result of this dash the scooterist was crushed by the rear wheal of the said bus. After completing necessary investigation the petitioner was charge-sheeted under secs. 279 304 of the Indian Penal Code and secs. 89 112 and 116 of the Motor Vehicles Act.
(3.) The Metropolitan Magistrate after recording the necessary evidence came to the conclusion that the petitioner was driving the S.T. bus and tried to over take the scooter and after overtaking the scooter it took a turn on the left side and dashed with the scooter. He further held that if the S.T. driver had not taken the turn on the left side then this accident would not have occurred. He relied upon the evidence of Bachubhai Ambalal P.W. 1 Ex 7 who is the complainant and eye-witness. He further relied upon the evidence of Balwantrai Zaverlal Shah P. 2 Ex. 9 who is a panch witness who has deposed that while silting in the office of Bachubhai one could have seen the accident. The accident had occurred at a distance of 15 ft. from the office of Bachubhai. Against the said judgment and order the petitioner had preferred an appeal before the City Sessions Judge Ahmedabad. The matter came up for hearing before the Additional City Sessions Judge Court No. 2 Ahmedabad. In the said appeal it was contended that the learned Magistrate ought not to have relied on the evidence of P.W. 1 Bechubhai because he had changed his version before the Court inasmuch as before the Court he had deposed that he had seen the accident while sitting in his office. His immediate version was that he saw the said accident when he was standing on the footpath outside his office. The learned Additional City Sessions Judge after appreciating the evidence of the only eye-witness Bachubhai came to the conclusion that the evidence of the said witness cannot be discarded only on the ground of so-called contradiction. He further appreciated the evidence of panch witness and the panchnama which mentions that there was a mark of dash on the left side of S.T. bus. He further held that even on the evidence of sole eye-witness the learned Magistrate was right in relying upon the said evidence and convicting the accused. Against the said judgment and order the petitioner has preferred this revision application.;

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