Gujarat High Court
State Of Gujarat vs Bhikhubhai Kanabhai Miyatra on 3 July, 2025
NEUTRAL CITATION
R/CR.A/217/2013 JUDGMENT DATED: 03/07/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 217 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
==========================================================
Approved for Reporting Yes No
==========================================================
STATE OF GUJARAT
Versus
BHIKHUBHAI KANABHAI MIYATRA
==========================================================
Appearance:
MR BHARGAV PANDYA, APP for the Appellant(s) No. 1
MR TUSHAR L SHETH(3920) for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
Date : 03/07/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH
ROY)
1. The respondent is the sole accused in Sessions Case
No.27 of 2012 on the file of the Additional Sessions Judge,
Gondal of Rajkot District. He was prosecuted for the offences
punishable under Sections 279, 304, 304(A) and 337 of the
Indian Penal Code and under Sections 177, 184 and 134 of the
NEUTRAL CITATION
R/CR.A/217/2013 JUDGMENT DATED: 03/07/2025
undefined
Motor Vehicles Act. Eventually, he was acquitted of the said
offences as per the judgment rendered by the trial court on
30/11/2012.
2. Feeling aggrieved by the said judgment of acquittal, the
State has preferred the present appeal challenging the
legality and validity of the impugned judgment of acquittal.
3. Concise statement of facts relating to the prosecution
case is as follows:
3.1. The accused is a driver by profession. He was working
as a driver of an auto-rickshaw bearing registration no.GJ-23-
T-3504. The persons who were travelled in the said auto-
rickshaw are all labourers and they have been travelling in the
said auto-rickshaw for the last one year prior to the date of
the accident to attend their labour work from their respective
villages. While so, on 07/01/2011, after completion of the
labour work, about seven persons were travelling in the said
auto-rickshaw to reach their home. The accused was the
driver of the said auto-rickshaw at that time. When the said
auto-rickshaw was travelling on a highway road, at about 8:30
NEUTRAL CITATION
R/CR.A/217/2013 JUDGMENT DATED: 03/07/2025
undefined
p.m. to 9:00 p.m. in the night time, the auto-rickshaw dashed
against the tractor-cum-trolley which was parked and
stationed on the said highway road during the said night time.
The auto-rickshaw turned turtle after dashing the said tractor-
cum-trolley. The passengers who were travelling in the said
auto-rickshaw as well as the accused who is the driver of the
said auto-rickshaw sustained injuries in the said incident.
Two persons who were travelling in the said auto-rickshaw
died on account of the injuries sustained by them in the said
accident. Other persons sustained only simple injuries along
with the accused.
3.2. Postmortem was held over the dead body of the two
deceased persons. It was opined that they died on account of
injuries sustained by them in the said accident.
4. PW-3 who is one of the passengers in the said auto-
rickshaw lodged report with the police. The said report was
registered as a case for the offences punishable under
Sections 279, 304, 304(A), 337 of the Indian Penal Code and
Sections 177, 184 and 134 of the Motor Vehicles Act. The
case was investigated. After completion of the investigation,
NEUTRAL CITATION
R/CR.A/217/2013 JUDGMENT DATED: 03/07/2025
undefined
charge sheet was filed by the police against the accused for
the aforesaid offences.
5. As the offence under Section 304 of the Indian Penal
Code was exclusively triable by the court of sessions, the
committal court has committed the said case to the sessions
division for trial. Thereafter it was made over to the
Additional Sessions Judge, Gondal of Rajkot District for trial.
The trial court framed charges under Sections 279, 304 and
337 of the Indian Penal Code and Sections 177, 184 and 134
of the Motor Vehicles Act against the accused. The accused
denied to the said charges and claimed to be tried.
6. During the course of the trial, the prosecution got
examined PW-1 to PW-10 witnesses and got marked seven
exhibits to substantiate its case against the accused.
7. After completion of the trial, upon considering the oral
and documentary evidence on record and on appreciation of
the same, the learned trial court found the accused not guilty
for the charges levelled against him and acquitted him of the
said charges.
NEUTRAL CITATION
R/CR.A/217/2013 JUDGMENT DATED: 03/07/2025
undefined
8. As noticed supra, feeling aggrieved by the said judgment
of acquittal, the State has preferred the present appeal
challenging the said judgment of acquittal.
9. When the appeal came up for hearing, we have heard
learned APP Mr. Bhargav Pandya for the State and learned
counsel Mr. Tushar Sheth for the for the respondent-accused.
10. The fact that the accused is a driver by profession and
that he was the driver of the auto-rickshaw that was involved
in the accident is not seriously in dispute. In fact the accused
himself was injured in the said accident and his wound
certificate that is on record proves that he has sustained
simple injuries in the said accident. Therefore, it is evident
that the was the driver of the auto-rickshaw involved in the
accident at the relevant time.
11. Now, the question is whether he has driven the auto-
rickshaw in a rash and negligent manner or whether the
accident took place on account of rash and negligent driving
of the auto-rickshaw which resulted into death of two
NEUTRAL CITATION
R/CR.A/217/2013 JUDGMENT DATED: 03/07/2025
undefined
passengers travelling in the said auto-rickshaw or not. While
dealing with the said material fact, to ascertain whether the
accused was driving the auto-rickshaw in a rash or negligent
manner to hold him guilty for the offences punishable under
Sections 304 and 337 of the Indian Penal Code, it is
significant to note that the trolley-cum-tractor against which
the auto-rickshaw dashed and over turned was parked on a
highway road without any parking lights or signal lights or
reflectors to indicate that the said vehicle was parked and
stationed on a highway road during the night time.
Admittedly, the accident took place during night time between
8:30 p.m. and 9:00 p.m. and it was dark at that time. Further,
the vehicle was parked and stationed on a highway road. It is
emanating from the record that the said road where the said
vehicle was stationed is a narrow road. Therefore, when a
tractor-cum-trolley vehicle was parked and stationed on a
narrow highway road, during night time, without any parking
lights, signals or reflectors to enable the drivers of the other
vehicles passing through the said highway road to notice that
the said tractor-cum-trolley was parked and stationed on the
highway road, no negligence can be attributed to the driver of
the auto-rickshaw which dashed the said stationed vehicle
NEUTRAL CITATION
R/CR.A/217/2013 JUDGMENT DATED: 03/07/2025
undefined
without any signal lights and reflectors.
12. PW-3 to PW-6 are the passengers who were travelling in
the said auto-rickshaw. They did not say in specific terms in
their evidence that the driver has driven the auto-rickshaw in
a rash or negligent manner. They only stated that he has
driven the vehicle in high speed and dashed the stationed
vehicle on the road.
13. It is settled law that mere driving the vehicle in a high
speed by itself cannot be construed as an act of rash or
negligent driving. In order to hold a person liable for the
offence punishable under Section 304(A) of the Indian Penal
Code, for driving the vehicle in a rash and negligent manner,
the fact that he has driven the vehicle in a rash or negligent
manner is to be invariably established with legal evidence.
There is no evidence on record forthcoming from the
testimony of any of the witnesses examined in the case that
the accused has driven the auto-rickshaw in a rash or
negligent manner and thereby dashed the said tractor-cum-
trolley. It has come in the evidence that the auto-rickshaw
has dashed the said trolley on its side way. It is not the case
NEUTRAL CITATION
R/CR.A/217/2013 JUDGMENT DATED: 03/07/2025
undefined
where it directly went and dashed the stationed vehicle. So, it
shows that when he suddenly noticed the stationed vehicle on
the road, he tried to avert dashing it and in the said process,
he dashed on the side of the stationed tractor-cum-trolley and
in the said process the auto-rickshaw over turned and the
passengers sustained injuries in the said process. Therefore,
the fact of driving the vehicle in a rash or negligent manner is
not established in this case.
14. In the judgment relied upon by the learned counsel for
the respondent, of this Court, rendered in the case of
Saudagarsingh Chhajusing and ors. vs. Jashodaben and
another and Ranjitsingh reported in 1986 ACJ 107 which
is a case relating to a motor vehicle accident claim, at para-9
of the judgment, this Court held as follows:
"9. From the above discussion it is proved that at dark
night time on a national highway where there was no
other light and which was open to fast moving traffic the
truck and trailer of 72.1/2 feet length and 8.1/2 feet
width was parked without any parking light and with no
reflectors and the to that the accident had occurred.
Even assuming that the motor-cyclist was driving his
vehicle slightly fast, yet it cannot be said that there was
contributory negligence on his part because on a
national highway and that too at night time it cannot be
expected that the vehicle should be driven at a slow
NEUTRAL CITATION
R/CR.A/217/2013 JUDGMENT DATED: 03/07/2025
undefined
speed. Further it cannot be expected that the driver of a
vehicle should visualize that there might be some
stationary vehicle which could not be seen from a
distance of few paces and therefore he should drive the
vehicle slowly. Under Section 81 of the Motor Vehicles
Act is is provided that no person in charge of a motor
vehicle shall cause or allow the vehicle or any trailer to
remain at rest on any road in such a position or in such a
condition or in such circumstances as to cause or to be
likely to cause danger, obstruction or undue
inconvenience to other users of the road. In the present
case the vehicle was parked on a national highway as
stated above without any signal to indicate the presence
of vehicles. Therefore, in our opinion, parking of such
vehicle on a dark night without light in rear or reflectors
and without putting any signal to indicate presence of
the parked vehicle, is the sole cause of the accident.
Hence the view of the Tribunal that the accident
occurred as a result of the sole negligence on the part of
opponent No. 1 is just and legal."
15. The Hon'ble Supreme Court also, in the similar
circumstances, very recently in the case of Sushma vs. Nitin
Ganapati Rangole and others in Civil Appeal No.10648
of 2024 and others, held at para-40 as follows:
"40. On a holistic analysis of the material available on
record, it is established beyond the pale of doubt that
the offending truck was parked in the middle of the road
without any parking lights being switched on and
without any markers or indicators being placed around
the stationary vehicle so as to warn the incoming
vehicular traffic. This omission by the person in control
of the said truck was in clear violation of law. The
accident took place on a highway where the permissible
speed limits are fairly high. In such a situation, it would
be imprudent to hold that the driver of a vehicle,
NEUTRAL CITATION
R/CR.A/217/2013 JUDGMENT DATED: 03/07/2025
undefined
travelling through the highway in the dead of the night
in pitch dark conditions, would be able to make out a
stationary vehicle lying in the middle of the road within
a reasonable distance so as to apply the brakes and
avoid the collision. The situation would be compounded
by the headlights of the vehicles coming from the
opposite direction and make the viewing of the
stationary vehicle even more difficult. Thus, the
conclusion drawn by the Courts below that the driver of
the car could have averted the accident by applying the
brakes and hence, he was equally negligent and
contributed to the accident on the application of
principle of last opportunity is ex-facie perverse and
cannot be sustained. Hence, it is a fit case warranting
exercise of this Court's powers under Article 136 of the
Constitution of India to interfere with the concurrent
finding of facts."
16. Thus, from the conspectus of law, as enunciated in the
aforesaid cited judgments, the legal position is very clear that
driving the vehicle with certain speed is permissible on a
highway road and when a vehicle was stationed and parked on
the highway road without parking lights or indicators and
when any vehicle dashed against the said stationed vehicle
and that too during night time, no negligence or rashness can
be attributed to the driver of the said vehicle.
17. It is settled law that the burden of proving that the
driver has driven the vehicle in a rash and negligent manner
is always on the prosecution and the prosecution has to prove
NEUTRAL CITATION
R/CR.A/217/2013 JUDGMENT DATED: 03/07/2025
undefined
the said fact with legal evidence. Rash and negligent driving
cannot be presumed on the basis of res ipsa loquitor.
18. The Hon'ble Supreme Court, in the case of State of
Karnataka vs. Satish reported in 1998 (8) SCC 493, held
that mere driving the vehicle at a "high speed" will not lead to
the inference that there is negligent or rash driving of the
vehicle and that the accident resulted into a death of a person
and injuries to number of persons. It is also held in the said
judgment that the act of rash and negligent driving cannot be
presumed on the basis of res ipsa loquitor and thereby the
Apex Court did not interfere with the judgment of acquittal in
the said case.
19. The upshot of the above discussion is that the accident
occurred on account of parking the stationed vehicle which is
a huge vehicle, a tractor-cum-trolley negligently on the
highway road during night time without any parking lights or
signals or indicators and in the said circumstances, no act of
rash or negligent driving can be attributed to the accused in
the instant case.
NEUTRAL CITATION
R/CR.A/217/2013 JUDGMENT DATED: 03/07/2025
undefined
20. The facts of the case do not constitute any offence under
Section 304 of the Indian Penal Code. Therefore, the very
framing of charge under Section 304 of the Indian Penal Code
is clearly misconceived. Although it is the case of the
prosecution that the respondent has driven the auto-rickshaw
hands free, absolutely there is not even a semblance of
evidence on record to prove that the accused has driven the
vehicle hands free. PW-3 to PW-6 who are passengers in the
said vehicle did not depose in their evidence that the accused
has driven the auto-rickshaw hands free.
21. The trial court, after appreciating of the evidence on
record, has rightly acquitted the accused. We do not find any
patent illegality or manifest error of law in the impugned
judgment of acquittal so as to interfere with the said judgment
of acquittal. Therefore, we do not find any ground to interfere
with the impugned judgment of trial court. It is perfectly
sustainable in law. Therefore, the appeal fails and is liable to
be dismissed.
22. Resultantly, the appeal is dismissed confirming the
impugned judgment of the trial court. Bail bond of the
NEUTRAL CITATION
R/CR.A/217/2013 JUDGMENT DATED: 03/07/2025
undefined
accused, if any, shall stand discharged.
23. Record and proceedings be sent back forthwith to the
concerned court.
(CHEEKATI MANAVENDRANATH ROY, J)
(D. M. VYAS, J)
ILA
