ORAL JUDGMENT

1. Judgement and order dated 11.10.2004 rendered by the learned Judicial Magistrate First Class, 2nd Court, Gandhinagar in Criminal Case No. 8300 of 2001 recording acquittal for the respondent in respect of the offences punishable under sections 279, 337 and 304A of Indian Penal Code ( for short ‘IPC’) as also sections 177 and 184 of the Motor Vehicles Act is sought to be assailed in this appeal.

2. Having considered the rival submissions, it is noticed that three eyewitnesses being Vishal Rajeshkumar Chauhan-P.W.5 who was pillion rider on Hero Puch - a vehicle involved in accident – driven by deceased Saurabh Vinodbhai Barot and P.W. 6 Hardik Maheshchandra Chaudhary who was following the vehicle in question with a pillion occupied by P.W. 4 Riten Arvindbhai Patel. Accident occurred on 21.09.2001, between GH-4 road and sector 12 of Gandhinagar when at about 12.45 a.m., the deceased Saurabh with his friend as pillion moved with his motor bike towards 12 and 13 sector of Gandhinagar. The scene of the accident is the cross roads of the said sector, near temple of Khodiyar mata. Deceased and P.W. 5 Vishal were heading to their residence on hero puch. According to P.W. 5, deceased was riding the motor bike on the permissible side of the road i.e. on the left side of the road when the bus bearing registration no. GJ1-Z-4151 allegedly driven by opponent herein collided with Hero Puch. According to P.W. 5, the vehicle was driven at an excessive speed. On collision, Saurabh and P.W. 5 fell on the road. While P.W. 5 sustained injuries on his hands and legs, Saurabh mainly sustained head injuries. It is testified by P.W. 5 that his friend Hardik was following them on a motor bike. They arrived and helped the deceased to Civil Hospital, Gandhinagar in auto rickshaw. Subsequently the deceased Saurabh was shifted to Civil Hospital in Ahmedabad where he succumbed to injuries. According to P.W. 5 and P.W. 4, after the accident, the bus came to halt and its driver came to the scene of offence. All the three eye witnesses identified the driver of the offending vehicle.

3. Evidence of the three eye witnesses is almost similar and does not require further elaboration except their cross-examination. In the cross-examination of P.W. 4, it is borne out that the details regarding accident were taken from him by the doctor and the police personnel, posted in the hospital. This fact would be relevant in the context of the yadi, which of course is not admitted in the evidence but heavily relied upon by the trial court for acquitting the respondent opponent. The suggestion came to be made by P.W. 5 that the vehicle driven by deceased Saurabh slipped on the road and therefore, collided with the bus which was passing on the road which of course was disputed, but would be relevant in the context of the contents of the said two panchnamas on record.

4. No facts worth noting emerged from the cross examination of P.W. 6.

5. It can be noticed from the oral testimony of the three witnesses above referred that none of them explained the manner of occurrence. Their only statement is that the bus was being driven at an excessive speed and it collided with the vehicle in question. For the purpose of fixing the rashness and negligence on the part of the opponent, it was all the more necessary to come out with the specific case as to the manner of occurrence. There can be no inference of rashness and negligence only on the basis of speed of the vehicle. In absence of the specific case about the negligence, one may fall back on to the contents of two panchnamas. The said panchnama Exh. 5 reveals the condition of the vehicle and the spot where it was found after accident. Engine of the motor vehicle is found broken; there is a damage at its wheels, seats as also its body.

6. The significant aspect emerged from the panchnama is the spot at which the motor bike was found after the accident. The road in question was North South road. The vehicle i.e. motor bike i