Judgment

Since the challenge in both the captioned petitions is to a selfsame order passed by the learned Additional Sessions Judge, those were heard analogously and are being disposed of by this common judgment and order.

2. The petitioner, the father of one of the victims, calls in question the legality and validity of the order dated 5th November, 2014, passed by the Third Additional Sessions Judge, Ahmedabad (Rural) at Mirzapur, below Exhs.135 and 136, in the Sessions Case No. 41 of 2013.

3. The facts giving rise to these applications may be summarized as under:

3.1 On 25.2.2013, an eyewitness to a fatal car accident lodged an FIR before the Vastrapur Police Station, Ahmedabad, of the offence punishable under Sections 279, 338, 427 and 304 IPC and Sections 177, 184 and 134/1B of the Motor Vehicles Act. The respondent No.2 original accused was driving a BMW car bearing registration No. CH-01-AE-9360 at about 12 O’clock in the night. He was driving the car rashly at a highspeed, which resulted in an accident claiming lives of two innocent young boys, namely Rahul Ganshyambhai Patel and Shivam Premshankar Dave. The petitioner before me is the father of the deceased Rahul.

3.2 It appears on the plain reading of the FIR that the first informant who had witnessed the entire accident has stated that the person who was driving the car got down and with folded hands said "sorry" and thereafter, ran away.

3.3 It also appears that thereafter on 21st March, 2013, the first informant was produced before the 6th Additional Chief Judicial Magistrate, Ahmedabad (Rural), Mirzapur, for the purpose of recording of his statement under Section 164 of the Criminal Procedure Code. In his statement, he has stated that on 25th February, 2013, at around 11 O’clock in the morning, he had disclosed the name of the person who was driving the BMW car, his address and the CCTV footage C.D before the Police. It appears that the entire accident got recorded in a CCTV camera, which was installed in front of a shop running in the name of "Laxmi Gathya" situated at the Premchandnagar Road.

3.4 It also appears that on 27.2.2013, the identification parade was carried out and in the said identification parade, the respondent No.2 accused was identified by the first informant as the driver of the BMW car, which had met with the accident. The investigation resulted in filing of the chargesheet, which ultimately culminated in Sessions Case No. 41/13.

3.5 The trial commenced with the first informant entering the witness box. The first informant failed to support the case of the prosecution and ultimately, had to be declared as a hostile witness. In his evidence, he admitted his presence at the place of the accident, however, he deposed that he had no idea as to who was driving the car at that point of time. He has deposed that the car dashed with the deceased persons as the same was being driven at a highspeed. He has deposed that he was unable to know as to what had happened to the driver of the BMW car. He has also deposed that he could not pay attention towards the driver of the BMW car because his two friends were seriously injured and all his attention was towards them. He has also deposed that at about 3 O’Clock in the night, he learnt through the media that the car was being driven by a person named Vismay Shah i.e. the respondent No.2. Except admitting his signature on the first page and the last page of the FIR, he denied the contents of the same. In the same manner, he also denied having given any statement on oath before the Additional Chief Judicial Magistrate, Ahmedabad under Section 164 of the Code of Criminal Procedure.

4. It appears that thereafter, the trial proceeded further and in the midst of the trial, the father of one of the deceased persons filed two applications, Exhs. 135 and 136. Both these applications were filed under the provisions of Section 311 of the Code of Criminal Procedure, 1973. In the application Exh.135, the petitioner prayed to summo