Rajaram and Another vs State

G. Rajasuria, J.—The summation and summarisation of the relevant facts which are absolutely necessary and germane for the disposal of this criminal revision case would run thus:

The police laid the police report in terms of Section 173 Cr. P.C. against the revision petitioners for the offence u/s 279 and 304(A) I.P.C. Inasmuch as the accused pleaded not guilty, trial was conducted.

(ii) During trial, on the side of the prosecution, P.Ws. 1 to 12 were examined, Exs. P. 1 to P. 10 were marked. On the accused''s side, no oral or documentary evidence was adduced.

(iii) Ultimately, the trial Court recorded the conviction as against both the accused and imposed the following sentence:

---------------------------------------------------------- Offences Sentence imposed Fine amount ---------------------------------------------------------- Under Section 304-A One year R.I. - ---------------------------------------------------------- Under Section 279 - - ----------------------------------------------------------

(iv) Being aggrieved by and dissatisfied with the judgment of the lower Court, the accused preferred an appeal in C. A. No. 204 of 2006 before the District Sessions Judge, Vellore District, for nothing but to be dismissed.

Challenging and impugning the judgment of both the Courts below this revision has been filed on various grounds the warp and woof of them would run thus:

(a) The alleged eye witnesses namely P.Ws. 2, 3 and 5 gave versions which are militating as against one another and in fact, they were not eye witnesses to the occurrence at all. The incident occurred only due to the negligence of the deceased herself and ignoring the evidence of P.W. 1. both the Courts below decided the case as against the accused.

Despite printing the name of the counsel for the revision petitioners he has not appeared and revision petitioners were also not present. Learned Additional Public Prosecutor made his submissions.

The point for consideration is as to whether there is any perversity or non application of law in recording the conviction and imposing the sentence?

The learned Additional Public Prosecutor, by inviting the attention of this Court to the fact that both the Courts below, after adverting to the evidence on record, clearly indicated that only due to the rash and negligent driving of the offending bus by its driver the accident had happened and that the conductor had also given whistle without verifying whether all the passengers had got into the bus and in such a case, there is no necessity to re-appreciate the evidence once again and arrive at a different conclusion. In the grounds of revision, it is found stated as though P.Ws. 2, 3 and 5 gave contradictory versions and also about the actual occurrence. It is the case of the prosecution that on 30-8-2004 at about 7.55 hours at the Rangasamudram Bus stop at Gudiyatham -Jittapalli Road when the deceased Manonmani, a girl studying 8th standard was about to board the offending bus driven by the accused, the driver took the bus speedily and made her to fall down whereby she sustained injuries and ultimately, succumbed to her injuries. P.W. 1 is the father of the deceased. But he is not an eye-witness to the occurrence. But it was he who lodged the complaint subsequently from what he ascertained from others. P.W. 2, Chittibabu, is an eye-witness to the occurrence who would narrate that at the said bus stop the passengers boarded the bus and the deceased was also in the process of entering into the bus by catching hold of the side handle, but the driver of the bus started the bus, without ascertaining as to whether the passengers actually got into the bus safely or not, in a rash and negligent manner and made the girl to fall down and the wheel of the offending bus ran over her. P.W. 3 Ranjith also deposed in a similar manner. However, the revision petitioner would try to criticise the evidence of, P.W. 3 stating that his evidence is different from the evidence of P.W. 2. In fact, P.W. 3 would also in his own words narrate the incident by saying that he saw the deceased girl when she was about to enter into the bus; but the bus speedily moved and thereby the girl could not board the bus. As such, I could see no material contradiction between the evidence of P.W. 2 and P.W. 3. Even P.W. 5, Napolean, would narrate the incident in a similar manner. The cumulative effect of the evidence of P.Ws. 2, 3 and 5 is to the effect that in the process of the deceased girl boarding the bus, she fell down and died. The question that would arise is as to what made her to fall down from the bus? The accident occurred because of the conductor having given wrong signal and the driver having rash and negligently started and driven the offending bus without taking care to see as to whether the passengers, including the victim, boarded the bus properly or not. Hence, I am of the considered opinion that absolutely there is no material contradiction in the deposition of P.Ws. 2, 3 and 5. It is pellucidly and palpably clear that the occurrence took place because of the negligent act of the conductor in giving whistle and the driver of the bus having taken the bus in a rash and negligent manner. Neither the conductor nor the driver can fob off their respective responsibilities as against each other and try to wriggle out of the responsibilities also.

At this juncture, my mind is reminiscent and redolent of the following decisions of the Apex Court:

(i) Bindeshwari Prasad Singh @ B.P. Singh and Others Vs. State of Bihar (Now Jharkhand) and Another, an excerpt from it would run thus:

The instant case is not one where any such illegality was committed by the trial Court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial Court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.

We are, therefore, satisfied that the High Court was not justified, in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial Court. But that by itself is no justification for exercise of revisional jurisdiction u/s 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial Court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself.

(ii) 2005 Supreme Court Cases (Cri) 276 : Satyajit Banerjee and Others Vs. State of West Bengal and Others, . an excerpt from it would run thus:

The cases cited by the learned Counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice.

A bare poring over and perusal of the above judgments would exemplify and demonstrate that revisional Court should be reluctant to interfere with the finding recorded by the lower Court, unless there is perversity or non-application of law in appreciating the evidence.

As such, this Court cannot be called upon to re-appreciate the evidence and take a decision different from the conclusion arrived at by both the Courts below when they have arrived/Jit a decision based on facts. However, cutting across technicalities, the analysis of the depositions of those witnesses would reveal that the findings of the Courts below cannot be found fault with. As such, it is clear that both the driver and the conductor of the offending bus was responsible for causing the accident for which they have been rightly convicted by both the Courts.

Regarding the sentence imposed is concerned, I would like to recollect and call upon the following decisions of the Hon''ble Apex Court:

(i) Dalbir Singh Vs. State of Haryana, An excerpt from it would ran thus:

Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, Criminal Courts cannot treat the nature of the offence u/s 304A, IPC as attracting the benevolent provisions of Section 4 of the PO Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of the vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly that even if he is convicted he would be dealt with leniently by the Court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the Courts can play, particularly at the level of trial Courts, for lessening the high rate of motor accidents due to callous driving of automobiles.

Thus, bestowing our serious consideration on the arguments addressed by the learned Counsel for the appellant we express our inability to lean to the benevolent provision to Section 4 of the PO Act. The appeal is accordingly dismissed.

(ii) State of Karnataka Vs. Sharanappa Basnagouda Aregoudar, , an excerpt from it would run thus:

We are of the view that having regard to the serious nature of the accident, which resulted in the death of four persons, the learned Single Judge should not have interfered with the sentence imposed by the Court below. It may create and set an unhealthy precedent and send wrong signals to the subordinate courts which have to deal with several such accident cases. If the accused are found guilty of rash and negligent driving, Courts have to be on guard to ensure that they do not escape the clutches of law very lightly. The sentence imposed by the Courts should have deterrent effect on potential wrong-doers and it should commensurate with the seriousness of the offence. Of course, the Courts are given discretion in the matter of sentence to take stock of the wide and varying range of facts that might be relevant for fixing the quantum of sentence, but the discretion shall be exercised with due regard to larger interest of the society and it is needless to add that passing of sentence on the offender is probably the most public face of the criminal justice system.

As such taking into consideration the aforesaid decisions and also the nature of the accident, I would like to reduce the sentence from one year to three months simple imprisonment for the offence u/s 304(A) I.P.C. and rest of the portion of the judgment relating to conviction as well as the sentence are all confirmed as such. Incidentally, I would like to point out that both the Courts below, without au fait with law and au courant with facts simply refrained from imposing the sentence in respect of the offence u/s 279 I.P.C. Law is well settled that simply because the accused are found guilty u/s 304(A) I.P.C. and sentence imposed, there is no embargo for the Court to impose separate sentence u/s 279 I.P.C. also. But in this case, both the Courts below fell into error on this aspect. This Court, being revisional Court, is not inclined to impose any sentence for the first time for the offence u/s 279 I.P.C. Accordingly, this revision is partly allowed.