Gujarat High Court
Mahadev Bhagwanji Patel vs State Of Gujarat on 24 April, 2001
Equivalent citations: (2001)4GLR3424
JUDGMENT H.H. Mehta, J.
1. This is a Criminal Revision Application under Sec. 397 read with Sec. 401 of the Code of Criminal Procedure, 1973 (for short the "Cr.P.C.") filed by the original accused of Criminal Case No. 752 of 1988 tried and decided by the learned Judicial Magistrate, First Class, Bhachau (who will be referred to hereinafter as the learned Magistrate for the sake of convenience) by rendering his judgment Ex.29 dated 22nd February, 1991. By preferring this Criminal Revision Application, original accused of said case has challenged the correctness, legality and validity of the judgment Ex.7 dt. 30/7/1992 rendered by the learned Sessions Judge, Kachchh at Bhuj (who will be referred to hereinafter as the learned Judge) in Criminal Appeal No.5 of 1991.
2. The present revision petitioner was an accused in Criminal Case No. 572 of 1988 in the trial Court and the appellant in Criminal Appeal No.5 of 1991 which he preferred to the Sessions Court, Bhuj-Kachchh. For the sake of convenience, parties will be referred to hereinafter as the prosecution, complainant and accused respectively at appropriate places.
3. As per the judgment of the learned Magistrate, the facts leading to this present Criminal Revision Application, in a nutshell, are as follows :
3.1 On or about 15/8/1988, one Shri Laturisinh, P.S.O. of Bhachau Police Station wrote a Yadi, wherein he informed that one vehicular accident has occurred by S.T.Bus at a place 14 KMs. away from Bhachau just opposite to Vondh Railway Station on National High Way No.8 and as reported in that Yadi that S.T.bus knocked down one pedestrian who was brought to Government hospital, Bhachau. On the basis of that Yadi, one Entry No.11/88 was made in the Police Station Diary. On the strength of that Entry No.11/88 in Station Diary, P.S.O. Kanaiyalal Shankarlal Makwana conducted a police investigation. During the course of that investigation, it was found that person who was brought to Bhachau Government hospital was one Bhikhabhai Kalyan Maharaj aged about 65 years. He succumbed to injuries which he sustained in said vehicular accident. It is the case of the prosecution that said S.T.Bus which was of route of Narayan Sarovar to Ahmedabad was being driven by Mahadev Bhagvanji Patel who is the present revision petitioner before this Court. In that S.T.Bus, one Natvarbhai Pujabhai Solanki was performing his duties as Conductor of the said bus. As per the deposition of said Natvarlal, they left Bhachau at about 11-45 p.m. and incident took place at about 11-55 p.m. 3.2 During the course of investigation, it was revealed that P.W.3 Indiraben Danjibhai and her son Khajur Danji both had come as guests to the house of deceased Bhikhalal Kalyan Maharaj at village Vijyasar on previous day. They had a short stay in the night on a previous day. On the fateful day of incident, said Indiraben and her son Khajur both had come to Ramdev Pir Bus Stop as they had to catch a bus. P.W.4 Sitaben Bhikhalal Maharaj who is a widow of deceased had come in company of deceased to see off their relative Indiraben. As per deposition of said Sitaben, Indiraben was her sister. Indiraben and her son boarded the bus which was to proceed towards Bhachau. When Sitaben and her husband i.e. deceased victim Bhikhalal were crossing the road, one S.T. bus came with full speed from Bhachau side and that S.T. bus knocked down said Bhikhalal as a result of which deceased sustained serious bodily injuries. As per evidence of P.W. 5 -Balvantsin Narubha Jadeja, Sitaben and deceased were trying to cross the road from behind the S.T. bus in which their relatives had boarded, and therefore, when they were crossing the road from behind the stationary bus which was to proceed towards Bhachau, S.T. bus came from Bhachau side with full speed and that bus caused an accident. That deceased Bhikhalal who sustained injuries was brought to Bhachau hospital where he was declared to be dead. Thereafter from the hospital, one P.S.O. Latursinh who was on hospital duty, in hospital sent a message about the person having sustained injuries in vehicular accident and on the basis of that message, Entry No.11/88 was registered in the Station Diary of Bhachau Police Station at about 12-15 p.m. Investigating Officer Shri Kanaiyalal Shakarabhai Makwana immediately went to Bhachau Civil Hospital and then he started police investigation and on completion of investigation, he chargesheeted the case against accused for offences punishable under Secs. 279-304A of the Indian Penal Code and also under Secs. 112 and 116 of the Motor Vehicles Act.
4. The learned Magistrate recorded plea of the accused. Accused pleaded not guilty to the charge. The prosecution examined in all eight witnesses. Prosecution led certain documentary evidence also. After the closure of the evidence by the prosecution, the learned Magistrate recorded further statement of accused under Sec. 313 of Cr.P.C. As per Para 4 of the judgment of the learned Magistrate, accused stated that entire evidence led by the prosecution was false and that he has not committed any offence. He neither gave any evidence by examining any witnesses in defence, nor did he examine himself on oath, as a witness on his behalf.
5. After hearing the learned advocates for both the parties, the learned Magistrate analysed and appreciated evidence led by the prosecution and ultimately he came to a conclusion that prosecution has proved its case beyond reasonable doubt for offences punishable under Secs. 279-304A of I.P.C. and also under Sec. 112 and 116 of the M.V.Act. He, therefore, by rendering his judgment Exh.29 dated 22/02/1991, convicted accused under Sec. 255(2) of Cr.P.C. for aforesaid offences. Accused was heard on the point of quantum of sentence. When he was heard on the point of quantum of sentence, accused submitted that the person who suddenly emerged from behind the S.T.bus while crossing the road, was at fault, and that he (accused) had taken all due care and caution, and therefore, accident has not taken place due to his negligence as alleged by the prosecution. He also submitted that he had taken all care to avert the accident for saving the life of the deceased. In short, accused has not expressed his regret for the accident but he has found fault with the deceased saying that the deceased suddenly emerged from behind the S.T. bus, and therefore, due to negligence of deceased, accident has occurred.
6. After hearing both the parties on the point of quantum of sentence, the learned Magistrate sentenced the accused for an offence punishable under Sec. 279 I.P.C. to undergo Simple Imprisonment for one month and to pay a fine of Rs.250/-, and in default of payment of fine, to further undergo Simple Imprisonment for 15 days. He also convicted the accused for offence punishable under Secs. 304A of the I.P.Code and sentenced to undergo Simple Imprisonment for two months and to pay a fine of Rs.500/and in default of payment of fine, to further undergo Simple Imprisonment for one month. The learned Magistrate has not inflicted any separate sentence for offences punishable under Secs. 112 and 116 of the M.V.Act.
7. Being aggrieved against and dissatisfied with the said judgment of conviction and sentence rendered by the learned Magistrate, the original accused preferred Criminal Appeal No.5 of 1991 to the Sessions Court, Bhuj. The learned Sessions Judge, after perusal of record and proceedings of the case and after re-analysing and re-appreciating the evidence led by the prosecution came to a conclusion that the judgment of conviction and sentence was proper and legal and the learned Magistrate has not committed any error in appreciating the facts of the case and also in convicting the accused. He, therefore, by rendering his judgment, dismissed the appeal of the appellant accused on 30/7/1992.
8. Being aggrieved against and dissatisfied with the said judgment Exh.7 dated 30/7/1992 rendered by the learned Sessions Judge, Kachchh at Bhuj, original accused has preferred this present Criminal Revision Application under Sec. 397 read with Sec. 401 of Cr.P.C.
9. I have heard Shri A.J.Patel, learned advocate for the revision petitioner and Shri B.Y.Mankad, learned APP for the State in detail at length. Shri A.J.Patel has submitted a small Paper Book containing plain copies of evidence of witnesses examined by the prosecution. He has also produced xerox copies of panchnama of scene of offence and rough sketch of scene of offence prepared during the course of investigation of the case. He has taken me through the evidence of all the witnesses examined by the prosecution.
10. Shri A.J.Patel, the learned advocate for the revision petitioner has argued that the learned Magistrate as well as the learned Sessions Judge have not considered the evidence of witnesses in proper perspective. Their appreciation of evidence is contrary to evidence of witnesses. They have not taken into consideration the admission made by Indiraben Danajibhai. They have not considered the legal position settled by Hon'ble Supreme Court in case of MAHADEO HARI LOKRE vs. THE STATE OF MAHARASHTRA, reported in AIR 1972 SC 221. He has argued that speed is not the only criteria to prove the negligence. Merely because, accused drove the S.T.Bus with speed, it cannot be said that he was negligent in driving the S.T.Bus because on High Way, he can drive vehicle with speed. He has further argued that both the courts below have not considered the important fact that deceased suddenly emerged and came on the road from behind the S.T.Bus for crossing the road without requisite care. He has further argued that both the courts below have not considered the evidence that accused had applied the brakes to avert the accident, and therefore, he had taken due care and caution while driving the S.T. bus. As per his arguments, the deceased was negligent in crossing the road without taking requisite care and without looking on both the sides of the road, and he dashed against the S.T.bus which was in motion. Shri A.J.Patel has further argued that panchnama of scene of offence demonstrates the fact that petitioner was driving the vehicle with moderate speed. He has argued that the judgment of the learned Sessions Judge cannot be said to be correct, legal and proper and therefore, this Criminal Revision Application be allowed and judgment of both the courts below be set aside and accused be acquitted.
11. As against the above submissions made by Shri A.J.Patel, Shri B.Y.Mankad, the learned APP for the State has argued that the scope and ambit of such type of Criminal Revision Application is very much limited when both the courts below have given concurrent and consistent findings on facts. This Court should refrain from re-assessing the evidence and come to a different conclusion. He has further argued that looking to evidence led by the prosecution, the prosecution has proved its case beyond reasonable doubt and the learned Magistrate has rightly convicted the accused and the learned Sessions Judge has rightly dismissed the appeal of the appellant accused. Lastly, he has argued that this Criminal Revision Application is devoid of merits and hence the same be dismissed.
12. It is necessary to know as to what is the scope and powers of this Court while dealing with such type of Criminal Revision Applications. In case of BANSI LAL AND OTHERS vs. LAXMAN SINGH, reported in AIR 1986 SC 1721, it has been held as under : "It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial Court, that the High Court is empowered to set aside the order of the acquittal and direct a retrial of the acquitted accused. From the very nature of this power, it should be exercised sparingly and with great care and caution. The mere circumstance that a finding of fact recorded by the trial Court may in the opinion of the High Court be wrong, will not justify the setting aside of the order of acquittal and directing a retrial of the accused. Even in an appeal, the Appellate Court would not be justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial Court on the appreciation of the evidence. The revisional power of the High Court is much more restricted in its scope".
13. In case of RAMU ALIAS RAM KUMAR AND OTHERS vs. JAGANNATH, reported in AIR 1994 SC 26, it has been held as under :
"It is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it was invoked by a private complaint".
14. Shri A.J. Patel, the learned advocate for the revision petitioner has cited one authority of DULI CHAND v. DELHI ADMINISTRATION, reported in AIR 1975 SC 1960 on the point as to what is meant by rash and negligent driving. That case was decided on facts and circumstances of the case. This case will be discussed lateron at appropriate place but in this cited case, the Hon'ble Supreme Court has held as under:
"The jurisdiction of the High Court in a criminal revision application is severely a restricted and it cannot embark upon a re-appreciation of evidence."
It is further held as under:
"The question whether the accused was guilty of negligence in driving the bus and death of the deceased was caused due to negligent driving is a question of fact which depends for its determination on appreciation of the evidence. Where the Magistrate, and the Additional Sessions Judge arrived, on assessment of the evidence, at a concurrent finding of fact that the death of the deceased was caused by negligent driving of bus by the accused and the High Court even though justified in refusing to re-appreciate the evidence, reviewed the same in order to satisfy itself that there was evidence in support of the finding and that the finding was not perverse, came to the conclusion that the evidence established the death of the deceased was caused by negligent driving of bus by the accused, the Supreme Court on an appeal under Article 136 refused to interfere."
15. In case of STATE OF KERALA VS. PUTTUMANA ILLATH JATHAVEDAN NAMBOODIRI, reported in (1999) 2 Supreme Court Cases 452, it has been held as under :
"In its revisional jurisdiction, the High Court can call for and examine the record and any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
In aforesaid case, High Court, as observed by the Hon'ble Supreme Court, exceeded its jurisdiction in interfering with the conviction of the respondent by re-appreciating the oral evidence. The Hon'ble Supreme Court further observed as under :
"That the High Court also committed further error in not examining several items of evidence relied upon by the learned Additional Sessions Judge, while confirming the conviction of the respondent. In this view of the matter, the impugned judgment of the High Court is wholly unsustainable in law".
15.1 Shri B.Y.Mankad, learned APP for the revision opponent i.e. State has cited following two authorities on the points of scope and ambit of Secs. 397 and 401 of Cr.P.C. and the powers of High Court to be exercised while dealing with Criminal Revision Applications wherein concurrent and consistent judgments of both the Courts below are challenged:
(A) STATE OF A.P. VS. PITUHUK SHREEINVANASA RAO reported in (2000) 9 S.C.C. 537 wherein it is held as follows :
Para 3 : "In this case the respondent was convicted under Section 304-A of the Indian Penal Code and he was sentenced to under go rigorous imprisonment for a period of 2 years and to pay a fine of Rs.5000. He filed an appeal before the Sessions Court wherein the conviction and sentence was confirmed and appeal was dismissed. But when the respondent preferred a criminal revision before the High Court of Andhra Pradesh a learned Single Judge (N.Y. Nanumanthappa, J.) heard the revision and disposed of it in the following words:
Heard both sides.
In the absence of establishment of rash and negligent driving on the part of the petitioner by the prosecution the courts below committed mistake in convicting and sentencing the petitioner as aforesaid. Hence the reasoning adopted by the courts below is arbitrary and unacceptable. Accordingly, the criminal revision case is allowed and the convictions and sentences ordered by the courts below against the petitioner are set aside. The fine amount, if paid, shall be refunded to the petitioner".
Para 4 : "We have extracted above the very words of the learned Single Judge as nothing more is needed to highlight the hollowness of the order, for, it was without any reference to the evidence on record or the findings entered by the trial court and the appellate court regarding the evidence. If a revision is to be disposed of by upsetting the concurrent findings of two courts below in the aforesaid fashion, it would amount to abdication of the judicial function of the High Court. We are a little perturbed that it has happened like that in certain other cases disposed of by the learned Single Judge. We make the said observation not with a pleasing mind but we hope that this observation would reach the learned Judge so as to help him to remind himself of the need to give reasons for dissenting from the findings concurrently made by the factfinding courts. It is redundant to remind that revision jurisdiction is basically supervisory in nature."
(B) STATE OF A.P. Vs. RAJAGOPALA RAO, reported in (2000) 10 S.C.C. 338, wherein it is held as follows :
Para 4 "The High Court in exercise of its revisional power has upset the concurrent findings of the courts below without in any way considering the evidence on the record and without indicating as to in what manner the courts below had erred in coming to the conclusion which they had arrived at. The judgment of the High Court contains no reasons whatsoever which would indicate as to why the revision filed by the respondent was allowed. In a sense, it is a non-speaking judgment."
16. Keeping in mind the aforesaid legal position with regard to scope and ambit of Sec. 397 read with Sec. 401, Cr.P.C. and powers of the High Court under its revisional jurisdiction, the rival contentions of the parties are dealt with hereinafter.
17. In this case, the following facts are admitted facts for which there cannot be any dispute from either side:
(i) On or about 15/8/1988 at about 12-00 a.m. vehicular accident occurred on High Way No.8-A leading from Rapar to Bhachau to Narayan Sarovar at a place just near Ramdevpir Bus Stop of village Ramdevpir. That accident occurred by S.T.Bus No. GQE 8454 which was being driven by the accused i.e. the present revision petitioner.
(ii) In that S.T.Bus, witness No.7 Natwerlal Pujalal Solanki was the Bus Conductor. That bus left Bhachau for its onwards journey towards Narayan Sarovar at about 11-45 a.m. and accident occurred at about 11-55 a.m. In that accident, deceased Bhikhalal Kalyanbhai Maharaj was knocked down by the S.T.bus and he sustained injuries and thereafter he succumbed to that injuries;
(iii) Immediately after accident, injured was shifted to Bhachau Hospital where he was declared dead;
(iv) Medical Officer, Bhachau on phone informed P.S.O. of Bhachau Police Station about injured Bhikhalal Kalyanbhai Maharaj who was declared dead in the hospital. On receipt of such information, P.S.O. Latursinh made a station diary Entry No.11/88.
(v) Thereafter, P.W.8 Kanaiyalal Shakaralal Makwana started police investigation. He went to Bhachau Hospital and performed inquest panchnama on the dead body. Thereafter, he recorded statements of certain witnesses.
(vi) The original complainant P.S.I. Shri K.S.Makwana lodged and sent that complaint Exh.27 for being registered in the Police Station to P.S.O. of Bhachau Police Station.
(vii) He also drew panchnama of scene of offence. Thereafter, he got prepared the map of scene of offence. On completion of investigation, he chargesheeted the case.
18. Shri A.J.Patel, the learned advocate for the revision petitioner has vehemently argued that both the courts below have not appreciated the evidence in its correct perspective in the manner in which the evidence ought to have been appreciated. He has further argued that taking into account the entire evidence of prosecution, it is proved that one S.T.Bus of route from Rapar to Bhachau was parked in stationary condition at Ramdevpir Bus Stop. The deceased and his wife Sitaben both had come to Ramdevpir Bus Stop to see off Indiraben sister of Sitaben wife of deceased and Khajur son of said Indiraben. Indiraben and her son Khajur boarded that parked S.T. bus which was there in a parked stationary condition. Both had already taken their respective seats, inside that bus. Thereafter, when the deceased and his wife Sitaben were returning to their residence, they crossed the road from behind the said S.T.bus in which Indiraben and Khajur had boarded and while so crossing the road, the S.T.bus which was being driven by accused came from Bhachau side, and dashed against the deceased who emerged on road from behind the S.T.bus of route of Rapar Bhachau and hence accident occurred. Shri A.J.Patel has vehemently argued that in this set of facts, accused cannot be held to be rash and negligent and therefore, conviction is bad in law and accused ought to have been acquitted from the case for which he has been charged. In support of this contention, he has cited a case of MAHADEO HARI LOKRE (Supra) In that case, it has been held as under :
"If a pedestrian suddenly crosses a road without taking note of the approaching the bus, there is every possibility of his dashing against the bus without the driver becoming aware of it. The bus driver cannot save accident however slowly he may be driving, and therefore, he cannot be held to be negligent in such a case".
19. As against aforesaid arguments, Shri B.Y.Mankad, the learned APP for the State has argued that both the courts below have appreciated the evidence in its correct perspective by keeping in mind the well settled legal position for appreciation of evidence and even if the evidence is re-examined by this Court, in no case, it can be said that finding is perverse and it tantamounts to miscarriage of justice, and therefore, he has argued that this Criminal Revision Application be dismissed by confirming the conviction.
20. In this case, most material piece of evidence is a panchnama of scene of offence. It is at Ex.12. Shri A.J.Patel, the learned advocate for the revision petitioner has placed reliance on this panchnama. On reading this panchnama, the following facts can be summarized :
(i) Road from east to west on which accident occurred was a High Way No.8A leading from Bhachau to Rapar.
(ii) Accident occurred near Ramdevpir Bus Stop which is on southern side of the road.
(iii) Point of impact of accident is in the middle part of the road, where pieces of broken glasses were found lying in scattered condition.
(iv) As per evidence of Balvantsinh Jadeja, road is of the width of 30'. Length of S.T.bus was of about 52' to 60'. Its width would be about 12' to 15'.
(iv) Marks of application of brake of offending S.T.bus were on northern side of the road in the length of 25'.
(v) After application of brake, the offending S.T.bus sewered on the northern side of the road and that S.T.bus went off the road leaving tar road and proceeded ahead further, upto a distance of about 30'.
(vi) Front wheel of driver side of the S.T.bus i.e. right hand side of the S.T. bus was 7' away from kachcha road and portion of rear wheels of said S.T.bus were 5' away from the kachcha road.
(vii) Right hand side of driver side of the S.T.bus was found broken and there was a dent just above head light portion as a result of dashing.
(viii) On the southern side of the offending S.T. bus, there was blood stain in the middle portion of the road.
(ix) On that road, pieces of glass were found lying in scattered condition
(x) S.T.bus was found there 60' away towards west from the point of impact.
(xi) S.T.bus of the route of Rapar - Bhachau which was in parked stationary condition was found on the side of the road near Ramdev Pir Bus Stop.
21. Before appreciating the aforesaid admitted evidence, it is necessary to know as to what is meant by the words "rash and negligent" driving because the accused is charged for an offence punishable under Sec. 279 I.P.C. and he is also charged for an offence punishable under Sec. 304A I.P.C., i.e. causing death by negligence on the ground that accused caused death of Bhikha Kalyan Maharaj by driving S.T.bus in rash and negligent manner and that death was not amounting to culpable homicide. It is the case of the prosecution that death of Bhikha Kalyan Maharaj was a direct result of rash and negligent driving of the said S.T.bus by the accused. The words "rash or negligent" are termed closely allied, but they are nonetheless distinguishable. In cases of negligence, the party does not perform an act to which he is obliged; he breaks a positive duty, he does not advert to the act which it is his duty to do. In cases of rashness, the party does not act which he is bound to forbear; he breaks a negative duty. Here he adverts to the act but not to the consequences of the act he does. In rash as well as in negligent act, no thought is bestowed on the consequences. In the one, there is a knowledge of the consequence, but there is over-confidence which makes one believe its happening unlikely. In the other, the consequence is never adverted to. Negligence may be defined to be the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing something which a prudent and reasonable man would not do. Negligence is not an affirmative word; it is the absence of such skill, care and diligence as it was the duty of the person to bring to the performance of the work which he is said not to have performed. The question whether a certain act is rash or negligent cannot be answered in the abstract. It must depend upon the time, place and the nature of the road. It is the duty of all persons driving on a public way to exercise that degree of care and caution for the safety of others, which a prudent man might reasonably be expected to exercise. What is necessary for the prosecution to establish under Sec. 279 I.P.C. is that the vehicle or car was driven on a public road in a manner so rash or negligent as to endanger human life.
22. In case of MRS SHAKILA KHADER ETC. vs. NAUSHER GAMA AND ANOTHER reported in AIR 1975 SC 1324, it has been held as follows :
"The main criterion for deciding whether the driving which leading the accident was rash and negligent is not only the speed at which the car was running but the width of the road, the density of the traffic and attempt to overtake other vehicles resulting in the car going to the wrong side of the road and causing the accident. Even if the accident took place in the twinkling of an eye, it is not difficult for an eye witness to notice a car overtaking other vehicles and going to the wrong side of the road and hitting a vehicle travelling on that side of the road."
23. Here in this case, Sitaben widow of the deceased was an eye witness to the incident. She has deposed that when her husband was crossing the road, the S.T.bus knocked down her husband and her husband sustained injuries. In cross-examination, she has deposed that she was following her husband and there was a distance of 5' to 10' in between her husband and herself. She has further deposed that when accident occurred, bus which was to leave for Bhachau was in stationary condition and incident took place at a distance of one and half feet from that stationary bus. She has also deposed that when she saw her husband lying on the road, she was standing at the back side of the Bhachau bus. As stated in the Panchnama, the width of bus would be about 12' to 15' as per evidence of Balvantsinh Jadeja. Sitaben has admitted that when she was following her husband, there was a distance of about 5' to 10'. When Sitaben was just at the back side of Bhachau S.T. bus, it can be said that deceased had practically crossed the distance of width of the stationary Bhachau S.T.bus. This fact gets corroboration from the fact that point of impact of accident was in the middle part of the road where pieces of broken glass were found lying. Thus from these admitted facts, a legitimate inference can be drawn that deceased had practically walked over a distance of about 5' to 10' from his wife who was at the back side of the stationary Bhachau S.T. bus.
24. The road is of the width of 30', and therefore, when accident occurred in the middle portion of the road, it can be safely said that impact of accident was at a distance of 15' from southern side of road and thus, the deceased had already reached on the open part of the road, leaving behind him the Bhachau stationary S.T.bus. From evidence of Sitaben, a case of the prosecution is revealed to the fact that accident occurred when deceased was crossing the road.
25. Shri A.J.Patel, the learned advocate for the revision petitioner has emphatically argued by placing reliance on the case of MAHADEO HARI LOKRE (supra). In this cited case, looking to the facts of that case, the Hon'ble Supreme Court held that if a pedestrain suddenly crosses a road without taking note of the approaching bus, there is every possibility of his dashing against the bus without driver becoming aware of it. It is also further held that bus driver cannot save accident however slowly he may be driving, and therefore, in that case, on facts, the Hon'ble Supreme Court found that bus driver cannot be held to be negligent in such a case. As per facts stated in Para 2 of that cited case, deceased Ravikant Vasant Mhatre and his friend Vijay Kumar both were standing on the western corner of the first Panjarapole lane, C.P.Tank road, eating pan at a Pan-Shop at about 11.00 p.m. on the fateful day of the accident. The C.P.Tank Road runs from South to North and road is of width of about 40'. After eating pan, Ravinkant said that he would go home for which purpose, it appears, he first crossed over to the Western side of the C.P.Tank Road.Vijay Kumar lost sight of him but about half a minute later he heard a commotion. So he turned back and saw tat a double decker Bus of the B.E.S.T. was standing on the road. Going nearer, he found that his friend Ravikant was lying on the left side of the Bus with his left palm and part of the face smashing. In that case, bus was going from south to north. As per F.I.R. in that case, Ravikant was walking along the C.P.Tank Road from South to North, and he was thrown down by the Bus which came from behind. The driver of the bus had put on the brakes on immediately after the impart and the Bus came to a halt within a distance of 4 or 5'.
26. Here in this case, the accused was a S.T.driver of route of Narayan Sarovar to Ahmedabad. It is not the case of the accused any where pleaded or submitted in form of suggestions in cross-examination of the witnesses that it was his first day on that route and he was new for that route. In absence of any such plea, it can be said that he was fully conversant with the traffic on that road and that he was knowing that there was a Ramdev Pir Bus Stop on southern side of the road near village Ramdev Pir. It is not the case of the accused that there was a curve before reaching just near the Ramdev Pir Bus Stop. From panchnama, it appears that road was in a straight line. Looking to the fact that on applying the brakes of the S.T.Bus, the bus left brake marks on a road for a distance of about 30' and that bus was sewered on its left side and went off on the Kachcha road. This fact clearly suggests that the S.T.bus was coming with full and excessive speed. If it was coming with a moderate speed, then there would not be any brake marks there on road in a distance of about 30' on the road. He was well aware that there is a Ramdev Pir Bus Stop on the southern side of the road. He must have seen the parked and stationary S.T. bus facing Bhachau on southern side of the road. When there is a bus stop, one can infer that there must be a traffic of pedestrains moving around that bus stop. One can also legitimately infer that on the side of the road, there must be some hand-carts for selling eatable items and drinks etc. because, there was a Ramdev Pir Bus Stop, very nearby. In this situation, accused must be knowing that as there was movement of the pedestrains on the road due to S.T. bus stop, and therefore, he was not required to drive the Bus with the speed. He ought to have taken a great care and caution to control the speed of the S.T.Bus to avoid unexpected accident. He must also be knowing that if his bus was going with full speed, he would not be able to control his bus near Ramdev Pir Bus Stop where movement of the pedestrains would be found by him, and therefore, what care and caution he ought to have taken, were not taken by him. The deceased had already appeared on the road, leaving behind him a back portion of the stationary Bhachau bus. When the road was straight one, he must have seen the deceased on the road from resonably visible distance of about 150'. He was expected to drive his bus with great care and caution with moderate speed. Instead of it, he drove the S.T.bus in such a way that S.T.bus knocked down the deceased who had already come in the middle part of the road. At the cost of repetition, it is reiterated that road is of a width of 30' and offending S.T.bus driver (i.e. accused) could not control the speed and after coming very nearer just at a distance of 30' from the deceased, he saw the deceased on the road, and he applied the brakes and due to his excessive fast speed, that S.T.bus left the marks of application of brakes for a distance upto 30' and then that bus went-off towards west from point of impact and that bus moved further upto 60' from the point of impact. Thus if these facts are taken into consideration by giving cumulative effect, a reasonable inference can be drawn that accused was rash and negligent in driving his bus.
27. During the course of arguments, when a query was put to Mr. A.J.Patel as to whether accused has stated in his further statement as to from what distance, he saw the deceased for the first time on the road and for this purpose, R & P of the case was called for from the trial Court, but it is found that lower Court has destroyed all the papers by keeping only judgment of the case, in the File, and therefore, for this Court, it was not possible to know as to what was the reply of the accused during his further statement, but one thing is certain that accused has denied the entire case of the prosecution in his further statement. The learned Magistrate of the trial Court has observed in Para 4 of his judgment that accused has stated that whatever evidence of prosecution is led, is false and that he has not committed any offence. Thus the question does not arise for him to explain as to from what distance, he saw the deceased for the first time on the road.
28. On the point of further statement, Shri A.J.Patel has cited an authority of SHARAD BIRDHICHAND SARDA vs. STATE OF MAHARASHTRA, reported in AIR 1984 SC 1622, wherein it has been held that when circumstances were not put to the accused in his further statement under Sec. 313 Cr.P.C. that circumstances must be completely excluded from the situation because accused does not have any chance to explain that circumstances. In this cited case, a case of Harising Bhagatsinh Vs. State of Madhya Bharat, reported in AIR 1953 SC 468 has been referred to. In that case, Hon'ble Supreme Court has held that any circumstances in respect of which an accused was not examined under Sec. 342 of Cr.P.C. cannot be used against him. In case of SHARAD BIRDHICHAND SARDA (Supra), it has further been held that unless the circumstances appearing against the accused is put to him in his examination under Sec. 342 or Sec. 313 of the Cr.P.C. same cannot be used against him. This Court is in complete agreement with these principles laid down by the Hon'ble Supreme Court. Here in this case, revision petitioner wants to take an advantage of non-existence of R. & P. of the case of the trial Court except the judgment rendered by the learned Judicial Magistrate, First Class.
29. In view of Sec. 114(e) of the Indian Evidence Act, this Court can presume that the judicial acts have been regularly performed. No doubt, this presumption is rebuttable but by mere denial, this presumption cannot be rebutted. When the learned Magistrate has observed in his judgment that a further statement of the accused was recorded under Sec. 313 of Cr.P,.C. it is presumed that the learned Magistrate must have complied with the requirements of Sec. 313 of Cr.P.C. and the learned Magistrate must have asked all necessary questions with regard to circumstances appearing against the accused. The learned Magistrate has observed in his judgment that accused has denied entire evidence led by the prosecution and stated that he has not committed any offence. In view of this, merely because there is an absence of further statement in the Record and Proceedings of the case of the trial Court, no inference can be drawn that question with regard to seeing deceased on the road from what distance while deceased was crossing the road, was not asked, and therefore, the authority of Sharad Birdhichand Sarda (supra) is not helpful to the revision petitioner because of peculiar fact and circumstances of the case.
30. Looking to the admitted position and contents of panchnama, principle of res ipsa loquitur will be applicable to this case. This principle is not in conflict with the principle of criminal jurisprudence that the burden of proving an evidence lies on the prosecution, but the prosecution has, in the first instance, obligation of proving relevant facts from which inference of negligence can be drawn, and when inference is drawn against the accused, then onus lies on the accused to explain the circumstances in which accident occurred. It is a well settled principle of law that when a serious accident takes place, one naturally expects the concerned driver to explain the circumstances in which his bus hit the deceased, and his bus was sewered for a distance of about 60' from the point of impact leaving a tar road. Here in this case, from the very beginning, defence of the accused is to the effect that the deceased suddenly tried to cross the road without observing the vehicle coming from left side and there was no chance for accused to avert the accident because the deceased suddenly emerged from the back side of the stationary bus unexpectedly, and therefore, it is the defence that accused is not responsible for this accident.
31. Shri A.J.Patel has argued that the learned Judges of both the Courts below have not considered admission of Indiraben in its correct perspective. Indiraben has deposed that incident took place behind the bus in which she was travelling. While appreciating the evidence, the evidence should not be appreciated by dissecting sentences from here and there, but it should be appreciated in its totality. Indiraben is a rustic lady aged about 50 years. She had already taken her seat in the Bhachau stationary S.T.bus, and therefore, what she has deposed has been deposed from here-say evidence, because she could not have seen the actual happening of the accident from the bus, and therefore, the arguments of Shri A.J.Patel cannot be accepted on the ground that admission of Indiraben is not appreciated properly by the learned Magistrate. Shri A.J.Patel has tried to take an advantage of absence of further statement of the accused in the Record and Proceedings of the case on the ground that no question was put to the accused as to from what distance she saw the deceased on the road. When the accused has denied the entire evidence of the prosecution and has taken a specific stand that evidence of prosecution is false, then the question does not arise as to what reply the accused must have given on the point of query made by this Court to Shri A.J.Patel. Shri A.J.Patel has further argued that the learned Judges of both the Courts below have not appreciated the evidence of witnesses which they gave in their cross-examinations. I have perused the judgments of both the courts below and I have found that the learned Judges of both the courts below have appreciated the evidence by taking into consideration a total effect of the evidence. They have not appreciated evidence in isolation and they cannot appreciate the evidence as Mr. A.J.Patel expects, and therefore, in no case, it can be said that appreciation of evidence is perverse.
32. At this stage, it is necessary to know as to what is appreciation of evidence. In case of NARAIN PRASAD v. THE STATE OF RAJASTHAN AND ANOTHER, reported in AIR 1978 RAJASHTAN 162, a Full Bench of Rajasthan High Court has made an attempt to explain the appreciation of evidence and it has been held in Para 25 of the said judgment as under:-
" The revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error of point of law and consequently, there has been a flagrant miscarriage of justice. The process of appraising the evidence led by two parties can be equated almost to the process of holding a balance, the time honoured symbol of justice. Sometimes, when the two pans of the balance are seemingly equal, even a slight evidence, circumstantial or otherwise, tilts the balance on one side and thereby probabilises the case of one party as against the other. In this process of holding the balance, what pieces of evidence, would lean the balance in favour of one party is dependent on the evidence available in a given case. But asking the revisional court to say that this piece of evidence should have weighed more than the other is nothing more than seeking a reassessment of evidence. Appreciation of evidence is a mental process involving selection, assessment and conclusion. Which statement ought to weigh and how much, cannot be rigidly laid down.
33. In this case, two courts below have concurrently and consistently held that accused is found guilty for offences punishable under Secs. 279 and 304A of I.P.C. When this Court is not supposed to reappreciate the evidence again and to come to a different conclusion, here in this case, looking to the evidence led by both sides, there is no possibility of any other decision which can be arrived at. In view of this, this Court is fully satisfied that in this case, there is no glaring defect in the procedure. There is no error on point of law and in no case, it cannot be said that because of non-appreciation of evidence in a manner as suggested by Shri A.J.Patel, there is a flagrant miscarriage of justice. There is no material on record to dislodge the reasons on the basis of which both the Courts below have come to a definite concurrent and consistent finding based on facts.
34. Shri B.Y.Mankad, the learned APP for the State has cited an authority of DULI CHAND vs. DELHI ADMINISTRATION, reported in AIR 1975 SC 1960. In this case, road was of width of 42'. Accused of that case was driving a bus and when that bus was about to reach near cross-road, he knocked down the deceased who was going on cycle. The Hon'ble Supreme Court held that accused failed to look on right while approaching the cross-road, and therefore, accused was negligent though he was driving that S.T.Bus with moderate speed of 20 Miles per hour. In this case, the Hon'ble Supreme Court has held that the speed of bus was of 20 Miles per hour on a road like Rohtak Road which is 42' wide. This speed cannot be said to be fast or excessive. But at the same time, the accused was grossly negligent in that he did not look at his right even though he was approaching a cross-road and failed to notice the deceased who was coming to his right and crossing the road.
35. Here in this case, accused was knowing that he was approaching near Ramdevpir Bus Stop. He must have seen the S.T.Bus in a stationary condition parked on the side of the road. Under the circumstances, he was expected to reduce the speed to avert the accident. When he was knowing that he was approaching near Ramdevpir Bus Stop, he ought to have understood that there must be a traffic of pedestrains moving around that S.T.Bus for boarding the bus or for getting down from the bus. He ought to have taken due care that some one may emerge from behind the S.T.Bus and in that circumstance, he was expected to take due care and caution by reducing the speed. Here in this case, he did not see the deceased who had already emerged on the middle part of the road, leaving stationary parked S.T.Bus behind him because point of impact of accident is in the middle of the road and the width of the road is of 30', whereas width of S.T.Bus is of about 12' x 15', and therefore, the case cited by Shri Mankad, the learned APP for the State is most applicable to this present case.
36. In view of this, this Criminal Revision Application is devoid of merits and is required to be dismissed, and accordingly it is dismissed.
37. Before summing up the arguments, Shri A.J.Patel further submitted that in case, if this Court comes to a conclusion that the accused is rightly convicted by the learned Magistrate, then the accused should be given benefit of probation. He has argued that the revision petitioner is about to complete 32 years of his service in S.T. department and because of this case, it is likely that he may lose his service, and therefore, a leniency be shown by this Court by giving a benefit of probation.
38. It appears from the judgment rendered by the learned Magistrate that accused did not advance his case for benefit of probation before the learned Magistrate. Even in appellate court, accused had not pleaded his case for benefit of probation to be given to him.
39. To pass an order with regard to sentence is a discretionary order and when both the courts below have properly exercised their jurisdiction on the point of quantum of sentence, this Court is of the view that there is no reason for disturbing the finding with regard to quantum of sentence.
40. As against the plea of revision petitioner for benefit of probation, Shri Mankad has cited a recent authority of DALBIR SINGH vs. STATE OF HARYANA, reported in (2000) 5 SC 82, wherein the Hon'ble Supreme Court has held as under :
"Galloping rate of road accidents in India and its devastating consequences, leniency cannot be shown and the benevolent provisions of S. 4 Probation of Offenders Act cannot be treated as applicable to the offence under Sec. 304-A I.P.C."
It has further been held that "When deciding quantum of sentence deterrence ought to be the prime consideration, and every driver should fear that, if convicted, courts will not treat him leniently. In that case, appellant before the Hon'ble Supreme Court was a bus driver and he knocked down the cyclist in front of office gate in town area, and the cyclist sustained serious bodily injuries which were fatal. In that case, the trial Court and appellate Court both had given finding that appellant was guilty of rash and negligent driving and both the courts below had convicted the appellant for offences under Secs. 279 and 304-A of the I.P.Code".
In the opening part of the judgment, Hon'ble Supreme Court has observed that "When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic."
41. In view the above legal position with regard to benefit of Probation of Offenders Act to be given in such type of accident cases, this Court is of the view that revision petitioner does not deserve any leniency and this Court finds that the learned Magistrate has inflicted just and adequate sentence and the same is not required to be disturbed.
42. In view of what is discussed hereinabove, this Criminal Revision Application deserves to be dismissed and accordingly it is dismissed. Rule is discharged. An order with regard to bail granted on 4/8/1992 shall stand cancelled. Revision petitioner is directed to surrender before the learned Magistrate to serve out the sentence inflicted by the learned Magistrate, Bhachau in judgment Exh. 29 dated 22/2/1991 in Criminal Case No. 752 of 1988 within two months from the date of receipt of the writ of this Court by the learned Judicial Magistrate, First Class, Bhachau.
Record and Proceedings be sent back to the trial Court, immediately.