JUDGEMENT
D.H.Shukla,J. -
(1.)The accused, Chandubhai Dahyabhai Patel was charge-sheeted in the Court of the learned Judicial Magistrate, First Class, Vadodara for, the offences punishable under Sections 279 and 304 read with Section 33R of the Indian Penal Code as also under Sections 112, 116 and 89 of the Motor Vehicles Act. The learned Magistrate by his judgment and order dated 29.9.1979 acquitted the accused against which order of acquittal the State of Gujarat has preferred the present appeal.
(2.)On perusal of the relevant records and the judgment of the learned Magistrate, I find no merit in this appeal.
(3.)Udesing Khaper, father of the deceased child, aged about 1 t years, killed under a tractor on 21.3.1978 at 4.30 p.m. filed complaint (Exh. 8) before the Police Station Officer, Vaghodia, on the date of the incident itself, wherein he stated that his son, Soma by name, was Killed under a tractor driven by Arunbhai Narsingbhai, who was the son of his employer. Now, this complainant himself has given a deposition on oath contrary to his complaint. In his evidence, he states that the tractor was driven by the accused (respondent herein) and not by Arunbhai whose name he has revealed in the complaint. In his cross-examination, he has stuck to his words. He has even given an application as to why he stated the name of Arunbhai as the driver of the tractor in his complaint and not the name of the present accused. He has stated that, As I was nervous, I had stated the name of Arunbhai. But the actual driver was the present accused. The further perusal of his cross-examination reveals that he had first approached a police Patel, but the witness does not remember as to whose name he had revealed before the Police Patel. The Police Patel is not examined, nor what the Police Patel must have taken down in writing brought on record. The witness further gives a go-bye to the case of the prosecution when in one breath be stated that he came to know about the contents of the complaint, namely the tractor only when he came in the court, and in the next breath he stated that he had known about the earlier.
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