Dammu Khan @ Dam Khan Mushalman vs State of M.P.

R.P. Awasthy, J.

The petitioner named above has filed the present revision petition against the judgment dated 15.10.88 delivered by Shri R.R. Ahirwar, Second Additional Judge to the Sessions Judge, Tikamgarh. by virtue of which judgment the finding given by the trail Court of holding the accused appellant guilty and awarding sentence for eight months and to pay a fine of Rs. 500/- or, in default, to further undergo rigorous imrisonment for 2 months has been maintained.

Prosecution case was that on 4.1.85 at about 6.15 P.M., the accused was driving bus No. MPO 9519 in a rash and negligent manner and dashed it against Kasturibai aged about 7 years. Consequent to the injuries sustained in the accident Kasturibai died in the night on the same date.

The accused pleaded not guilty and submitted in his defence that no accident took place by the bus, being driven by him. According to him on account of some confusion and excitement, Kasturibai fell down on a stone and sustained injuries.

After recording evidence the trial court held that the accident had taken place with the bus which was being driven by the accused/petitioner in a rash and negligent manner. On the said basis, the accused/petitioner has been held guilty and has been sentenced as detailed above.

It has been argued for the accused petitioner that only Sukhlal (PW-1) has supported the prosecution case and has deposed that while driving the said bus the accused was talking to some one in the said bus and that the bus was being driven in fast speed. However, Sarju (PW-8) and Janki (PW-9) have not supported the prosecution case and have deposed that the bus being driven in a very slow speed and the said girl had dashed against the rear side of the bus. It has further been submitted, regarding sentence awarded to the accused, that more than eight years have elapsed after the date of the accident and the accused petitioner has already undergone sentence of 17 days. The said sentence awarded to the accused petitioner is sufficient and in the opinion of the learned counsel for the petitioner, would meet the (sic) of justice. It has been pointed out that it is mentioned in the judgment delivered by the Appellate Court that Rs. 18,000/- have already been awarded by way of compensation to the parents of deceased girl Kasturibai.

In reply it has been submitted for the non applicant State that the Revisional Court can not appreciate the evidence available on record and whatsoever has been decided on fact by the Appellate Court is final and binding on the Revisional Court. Therefore, concurrent findings given by the two courts below can not be interfered with by the revisional court. The sentence awarded to the accused/petitioner should also be maintained.

Though it may not be very essential or material for the decision of the present revision petition, yet I consider it pertinent and relevant to express my point of view regarding the arguments advanced by the learned Govt. Advocate pertaining to this aspect as to whether the revisional court can or can not look into the evidence available on record of the case concerned.

In my opinion, it would be very broad and wide statement to say that in no case the Revisional Court can look into the evidence available on record of the case concerned. It has to be seen that in the authority K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, which relales to the question of interference by the High Court in a revision against acquittal by private complainant, it was observed that though it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, even when the State may not have though fit to appeal; yet this jurisdiction should be exercised by the High Court only in exceptional cases. In the said leading authority on the subject referred above, some illustrations have been given where the said discretion can or should be exercised. The said illustrations are as below:-

(i) Where the trial Court has no jurisdiction to try the case but has still acquitted the accused, or,

(ii) Where the trial court has wrongly shut out evidence which the prosecution wished to produce or,

(iii) Where the appellate court has wrongly held evidence which was admitted by the trial court to be in-admissible or,

(iv) Where material evidence has been over looked either by the trial court or by the appeal court or,

(v) Where the acquittal is based on the compounding of an offence which is invalid under the law. It was further observed that these and other cases of similar nature can properly be held to be cases of exceptional nature where the High Court can justifiably interfere with an order of acquittal (underlining has been done by me for providing emphasis).

In Ayodhya Dube and Others Vs. Ram Sumer Singh, this leading authority cited above, on the subject of setting aside acquittal of the accused at the instance of a private party in revisional jurisdiction, has been further explained. It was held in this authority that when the Sessions Judge acquitted the accused by ignoring the probative value of FIR and reliable testimony of eye witnesses and without considering material evidence on record and his judgment was full of inconsistencies and consisted of faulty reasoning. the order of the High Court in revision directing (sic) by setting aside acquittal would be justified.

It was further (sic) in the same authority that the Criminal Justice system does not admit of "pigeonholding". Life and law does not fall nealty into slots. When the court starts laying down rules enumerated (1), (2), (3), (4) or (a), (b), (c), (d), it is arranging for itself traps and pitfalls.

In Jadavbai v. Ramnarayan 1983 M.P.W.N. 419, it was held that though interference in revision in order of acquittal at the instance of private party is rare of rarest occassions yet if evidence available on record is ignored and judgment is full of inconsistencies with faulty reasonings, interference in such a finding was justified and was made.

In Almohan Das and Others Vs. State of West Bengal, it was observed in a case of revision against order of commitment that interference in revision would be justified only where a substantial question of law arises on which the correctness of the order of commitment may be effectively challenged. Instances have been given as below :-

(ii) Where there is no evidence on which the order of commitment could be made there.............: or misconception of evidence on matters of importance on account of which grave injustice has resulted, and on similar other grounds.

Thus, in substance it is correct that the revisional court would not re-appreciate the evidence available on record in the same manner in which an appellate court appreciates the evidence available on the record of the relevant case. If a reasonable finding on the basis of the evidence available on record can be given, then even if the revisional Court is of different view, it would not replace its finding in place of the finding given by the trial court or the Appellate Court. Yet where the finding of fact, effecting the decision is not based on any evidence or, where very material evidence available on record is totally ignored or where the judicial discretion is exercised perversely, the revisional court would be justified in interfering with the finding given by the trial court or the Appellate Court Please see Caetano Colaco v. Joao Rodrigues AIR 1966 Goa 82 (Full Bench).

The touch stone in this regard is that if the finding given by the trial or appellate court is perverse then the revisional court would be justified in interfering with such a finding. The question may therefore, arise as to what finding can he said to be a perverse finding. Some of the instances have already been given in the cited authorities which are merely illustrate but are not exhaustive. The dictionary meaning of perverse is abnormal, contradictory, contrary, improper, incorrect, unreasonable, obstinate etc...

In my opinion that finding should be considered to be perverse which on the basis of given material available on record and in view of the law pertaining to the subject, no normally prudent man would give or would arrive at. Now no normally prudent man would give a finding of fact on the basis of no material available on record. Therefore, if a finding of fact, affecting the decision is not based on any evidence, it would be a finding which can be said to be perverse. Likewise if material and important evidence affecting the decision of the case is available on record, normally no prudent man would over look or ignore it. Therefore, if a finding is given overlooking or ignoring such material evidence available on record which may effect the ultimate result of the case, such finding can also be said to be a perverse finding.

That is why in the beginning, it has been mentioned that it would be a very broad and wide statement to say that the revisional court can, under no circumstance, look into the evidence available on record.

However, in the present case, there is absolutely no perversity in the appreciation of evidence available on record. Suhklal (PW 1) is the witness who was present in such a place that he could see the entire accident taking place and has deposed on affirmation that he did see it. Sarju (PW - 8) and Janki (PW-9), had, according to their own version, seen the incident only after the accident had already taken place. Out of them, Janki had initially said that he had taken out the injured girl from below the rear side of bus but in the same breathe he has deposed that he had taken out the injured girl from below the middle portion of the body of the said bus. Had the said girl dashed against the rear portion of the bus, her body could not have been found lying below the middle portion of the said bus. It has further to be borne in mind that the said witness Janki has been declined hostile and has been cross examined for the prosecution.

Thus, the testimony given by Sarju and Janki was not of much help either to the prosecution or to the accused, because, they had seen the event of the said girl having sustained injury only after the accident had taken place. Whereas Sukhlal (PW-1) had seen the accident from the very inception.

Regarding the speed of the bus Sukhlal has deposed that it was in excessive speed. Sarju (PW-8) and hostile witness Janki (PW-9) have stated that the speed of the bus was slow. Nevertheless, it has to be seen that the fact as to what should be the speed of a motor vehicle is a relative matter which depends upon the given place and time where and when a motor vehicle is being driven. It naturally changes according to the circumstances of given cases. It has to be seen that the said bus was being driven in a populated place of Tikamgarh. Therefore, the driver was supposed to drive the said bus in a cautious manner. It appears from the testimony given by Sukhlal that the accused was driving the said bus, while talking to some one in the said bus, in a rash and negligent manner. Therefore, the two courts below have not committed any error in holding the accused/applicant guilty for committing an offence punishable u/s 304 A of the IPC.

Regarding sentence, it has to be seen that alleged compensation must have been paid, if at all, by either the Insurance Company or the Owner of the bus. The driver of a bus has seldom to pay and seldom or never pays any such compensation to the legal representatives of the deceased. It is not the contention also, of the petitioner, that it is he who has paid the said amount. Therefore, while considering the sentence to be awarded to the present accused/petitioner the fact that Rs. 18.000/- have already been awarded to the parents of the deceased is wholly irrelevant and should not be taken into consideration.

"The question of sentence generally poses a complete problem which requires a working compromise between the competing views based on reformative, deterrent and retributive theories of punishments. Though a large number of factors fall for consideration in determining the appropriate sentence, the broad object of punishment of an accused found guilty in progressive civilized societies is to impress upon the guilty party that commission of crime does not pay and that it is both against his individual interest and also against the larger interest of the society to which he belongs. The sentence to be appropriate should, therefore, be neither too harsh not too lenient". Please see Ram Narain Vs. State of Uttar Pradesh, It should commensurate with the committed crime.

In the present case the accused has already under gone a sentence of 17 days. The incident has taken place in the year 1985. Thus, more than eight years have elapsed after the date of the incident. Now it would be not appropriate and proper to send the accused again to jail. Therefore, considering the entire circumstances in the case, the accused is sentenced to rigorous imprisonment for the period already undergone and to pay a line of Rs. 2000/- or in default to undergo rigorous imprisonment for 6 months. Out of the amount fine, if recovered, Rs. 1000/- shall be paid to the parents of the deceased girl Kasturibai.

Thus, but for reducing the quantum of sentence awarded to the accused, as has been detailed above, the present revision fails and is disallowed. The finding of holding the accused guilty for alleged commission of offence punishable u/s 304-A of the IPC is maintained and confirmed. However, in place of sentence awarded to the accused by the trial court and appellate court, it is ordered that the accused shall be sentenced to the period of imprisonment already under gone and to pay a line of Rs. 2000/- or in default, to undergo rigorous imprisonment for a period of ft months.