1. The original complainant, Wadilal Shah, being aggrieved by the order of acquittal has come here in revision. He and his son were walking down Bomanji Petit Road on October 24, 1970. The road in some parts is wide and in other parts narrow. The accused who was driving the lorry is said to have caused the accident at about 12-30 noon in the narrow part of the road. The lorry came from the opposite direction. The complainant and his son were walking down towards Warden Road. When they found the lorry coming, both the complainant and his son stood with their backs to the compound wall there. The complainant's grievance is that the lorry in spite of this position taken up by them struck both of them. The result was that both of them fell down. It is further the complaint of the complainant that the accused reversed his lorry with the result that the rear right wheel passed over his left leg and his ankle, therefore, was fractured. Both the complainant and his son were taken first in a taxi to Nair Hospital and thereafter to Breach Candy Hospital. A complaint was thereafter lodged.
2. The accused denied having committed the offence and stated that when he saw the two walking on the road and when he was going in the opposite direction he told them to halt because he wanted to proceed further. The complainant and his son then asked him to proceed further with the lorry. Therefore he proceeded further. When he was so proceeding both of them shouted and asked him to stop the lorry. He stopped it immediately. He noticed the complainant sitting near the compound wall. He denied having been negligent or rash.
3. The learned Magistrate assessed the evidence of both the complainant and his son as well as an independent witness viz. D'Souza who had also witnessed this accident. According to the learned Magistrate the complainant and his son were not telling the whole truth because they have improved materially their story connecting the accused with the offence. The complainant and his son have stated that the accused reversed the lorry and thereby caused fracture to the complainant's ankle. The medical evidence shows that the lorry which was loaded could only cause a crush injury with open wounds if it went over the foot of the complainant. The complainant has also admitted that after he fell down, the right rear wheel of the motor lorry was ahead of him. In other words the complainant was found near the compound wall in between the right rear wheel and the right front wheel. If that is the version of the complainant, then according to the learned Magistrate, the driver has merely committed an error of judgment. The fact that the accused stopped immediately after the complainant shouted also showed that the lorry was not running at an excessive speed although the case of both the complainant and his son is that it came at an excessive speed. The learned Magistrate did not believe in the evidence of the complainant and his son Rashmikant because the complainant has improved the story in material parts and even went to the extent of saying that it was the, right portion of the lorry that struck him first. The nature of the injuries sustained does not show that such was the case. The independent witness said that the middle part of the lorry came in contact with the body of the complainant. In other words the front part already went past the complainant but the middle part of the lorry came in contact with the body of the complainant. According to the learned Magistrate this circumstance also shows that the accused was not negligent. At the most he was committing an error of judgment. After, therefore, assessing the evidence of the witnesses and the medical evidence the learned Magistrate was of the opinion that the accused could not be held to be guilty. The accused was neither negligent nor rash and, therefore, the learned Magistrate acquitted him. It is this order of acquittal, therefore, that is now challenged here.
4. Mr. Kadam, the learned advocate for the appellant-complainant, contended that the appreciation of the evidence by the learned Magistrate is perverse. According to him the learned Magistrate has not considered all the evidence that was led by the prosecution in all its aspects; It is contended by Mr. Kadam that the judgment is full of infirmities and it appears as if the learned Magistrate is making out a new case for the accused and the finding that he was committing an error of judgment is without any foundation. It is, therefore, his contention that the judgment will have to be reversed in the interests of justice. Mr. Kadam, however, was not able to show me that the learned Magistrate has committed any error of law or any error of procedure. It appears that the learned Magistrate has assessed all the evidence in his own way after weighing all the pros and cons of the circumstances that arise out of the evidence. It appears that the learned Magistrate has also visited the place of the accident. Pie has also discussed not only the nature of the injuries but also the condition of the road etc. during the course of his judgment. This is a revision petition by the complainant, a private party, against the order of acquittal. This Court in the absence of any error of law or point of law cannot reappraise the evidence or reverse the finding of fact on which the acquittal is based. It is true that the High Court may interfere with the order of acquittal when such an interference is demanded in the interest of justice. But I cannot convert a finding of fact into one of conviction. I cannot also set aside the order of acquittal after an appraisal of evidence passed by the learned Magistrate and send the case for retrial so that the retrial may ultimately result in only a new judgment with the order of conviction.
5. Mr. Kadam, the learned advocate for the appellant, has invited my attention to the various aspects of the evidence of both the complainant and his son. He says that the complainant and his son were both injured; that the accused was driving the lorry from the opposite direction; that there cannot be any dispute that the complainant and his son were injured as a result of the impact with the lorry and, therefore, according to him the assessment of the evidence by the learned Magistrate when he comes to the conclusion that the accused has not committed the offence is nothing but perverse. As mentioned earlier, the circumstances show that the complainant and his son were not hit by the front portions of the lorry. They seem to have been sandwiched between the lorry and the wall only after the lorry's front portion had passed them. The learned Magistrate is of the view that the accused had committed an error of judgment when he thought that he could pass the whole length of the lorry without injuring the complainant and his son. That is quite probable. Now all this assessment is made by the trial Court. Now the contention of the learned advocate that I should set aside all the assessment and exercise discretion to convert the finding of acquittal into one of conviction or merely send the record and proceedings for retrial, therefore, cannot be accepted. It would be difficult for this Court in the absence of any error of law or procedure or point of law to do such a thing. The High Court cannot order retrial when such an order would be tantamount to converting acquittal into conviction. In the case where there is no mistake of law or procedure, this Court will be reluctant to interfere with the order of acquittal.
6. For the aforesaid reasons, therefore, this revision application fails. I accordingly confirm the order of acquittal of the accused by the learned Magistrate. Rule discharged.