Decided on March 27,1972



- (1.) THE original complainant Wadilal Shah being aggrieved by the order of acquittal has come here in revision. He and his son were walking down Bomanji Petit Road on 24-10-70 The road in some parts is wide and in other parts narrow. The accused who was driving the lorry is said to have caused the accident at about 12-30 noon in the narrow part of the road. The lorry came from the opposite direction. The complainant and his son were walking down towards Warden Road. When they found the lorry coming, both the complainant and his son stood with their backs to the compound wall there. The complainant's grievance is that the lorry in spite of this position taken up by them struck both of them. The result was that both of them fell down. It is further the complaint of the complainant that the accused reversed his lorry with the result that the rear right wheel passed over his left leg and his ankle therefore was fractured. Both the complainant and his son were taken first in a taxi to Nair Hospital and thereafter to Beach Candy Hospital. A complaint wag thereafter lodged.
(2.) THE accused denied having committed the offence and stated that when he saw the two walking on the road and when he was going in the opposite direction he told them to halt because he wanted to proceed further. The complainant and his son then asked him to proceed further with the lorry. Therefore he proceeded further. When he was so proceeding both of them shouted and asked him to stop the lorry. He stopped it immediately. He noticed the complainant sitting near the compound wall. He denied having been negligent or rash.
(3.) THE learned Magistrate assessed the evidence of both the complainant and his son as well as an independent witness viz. D'souza who has also witnessed this accident. According to the learned Magistrate the complainant and his son were not telling the whole truth because they have improved materially their story connecting the accused with the offence. The complainant and his son have stated that the accused reversed the lorry and thereby caused fracture to the complainant's ankle. The medical evidence shows that the lorry which was loaded could only cause a crush injury with open wounds if it went over the foot of the complainant. The complainant has also admitted that after he fell down the right rear wheel of the motor lorry was ahead of him. In other words the complainant was found near the compound wall in between the right rear wheel and the right front wheel. If that is the version of the complainant, then according to the learned Magistrate, the driver has merely committed an error of judgment. The fact that the accused stopped immediately after the complainant shouted also showed that the lorry was not running at an excessive speed although the case of both the complainant and his son is that it came at an excessive speed. The learned Magistrate did not believe in the evidence of the complainant and his son Rashmikant because the complainant has improved the story in material parts and even went to the extent of saying that it was the right portion of the lorry that struck him first. The nature of the injuries sustained does not show that such was the case. The independent witness said that the middle part of the lorry came in contact with the body of the complainant. In other words the front part already went past the complainant but the middle part of the lorrv came in CQntact with the body of the complainant. According to the learned Magistrate this circumstance also shows that the accused was not negligent. At the most he was committing an error of judgment. After assessing the evidence of the witnesses and the medical evidence the learned Magistrate was of the opinion that the accused cannot be held to be guiltv. The accused was neither negligent nor rash and therefore, the learned Magistrate acquitted him. It is this order of acquittal, therefore that is now challenged here.;

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