ORDER

This revision under section 397 read with section 401 of Cr.P.C has been filed by applicant/ son of the deceased assailing the appeal judgment dated 10.11.2022 passed in Cr.A.No.257/2022 ( State of M.P. Vs. Abhishek Gupta ) by Vth A.S.J. Bhopal whereby trial court judgment of acquittal dated 28.03.2022 passed in R.T.No.3904817/2016 ( State of M.P. Vs. Anita Chelani and another ) acquitting the accused Abhishek for commission of offence under section 279,337 and 304-A of the IPC, has been affirmed.

2. As per the prosecution story on 25.02.2016 Girijesh Tripathi, auto driver, after parking the auto at Sagar Kunj was waiting for passengers. At around 5.30 P.M. one elderly person, resident of Fine Enclave was going towards shop. When he reached on the road, from Rajharsh side driver of Activa bearing registration No. MP-04-SB-2979 driving it rashly and negligently came and hit the elderly man due to which he fell down on the spot and sustained injuries. When Girijesh, Satish Rai and others asked from him his name, he introduced himself as Kripanarayan. Through 108 Ambulance he was taken to Narmada Hospital and in the course of treatment Kripanarayan succumbed to his injuries. F.I.R was registered and after investigation charge sheet was filed for commission of offence under section 279,337 and 304-A of IPC against Abhishek Gupta and under section 146,196 of Motor Vehicle Act against Anita Chelani.

3. Learned JMFC stated particulars of crime to accused Abhishek Gupta for commission of offence under section 279,337 and 304-A of IPC. In order to prove its case, prosecution examined Smt. Saroj Khare (P.W.1), Ajay Khare (P.W.2), Rakesh Kurele (P.W.3), Dr. Ashish (P.W.4), Dinesh Mishra (P.W.5), Anita Chelani (P.W.6), Girijesh Tripathi (P.W.7) and Saket Tiwari (P.W.8).

4. The learned trial court after recording the evidence of witnesses and hearing the prosecution and accused, acquitted the accused Abhishek Gupta for commission of aforesaid offences. The judgment passed by learned JMFC was challenged before the Court of Sessions by filing an appeal but learned ASJ by the impugned appellate judgment dated

10.11.2022, dismissed the appeal and upheld the judgment of acquittal passed by the learned trial court. Hence, this revision.

5 . Learned counsel for the applicant has submitted that learned trial court and appellate court have committed error in appreciating the evidence before it. It is submitted that registration number of the offending vehicle was MP-04-SB-2979. It was seized from the possession of its owner. The affidavit given by co-accused Anita Chelani was marked before the trial court. In affidavit, she had stated on oath that aforesaid Activa, at the time of commission of offence, was being driven by Abhishek Gupta. Therefore, when owner of the vehicle herself had given affidavit deposing that at the time of commission of offence activa was being driven by Abhishek Gupta, it was not justified on the part of the trial court and appellate court to acquit the accused for commission of aforesaid offence. Learned counsel for the applicant referring section 6 of the Indian Evidence Act has submitted by placing reliance on hearsay evidence of Anita Chelani, the doctrine of res gestae should have been applicable on the accused. Therefore, findings recorded by the trial court as well as by the appellate court and judgment of acquittal passed by the trial court and affirmed by the appellate court are apparently illegal, incorrect and improper. Therefore, he has prayed to allow the revision. It is also contention of learned counsel that co-accused Anita Chelani, the owner of the vehicle has admitted her guilt before the trial court and she was convicted for commission of offence under section 146/196 of the Motor Vehicle Act. Therefore, in the light of admission by the owner of the vehicle, applicant could have been held guilty for commission of offence under section 279,337 and 304-A