J.N. Bhatt, J.
1. The challenge in this revision is against the conviction and sentence that came to be passed against the petitioner/original accused for the charges in connection with a vehicular accident, by invoking the aids of the provisions of Section 397 read with Section 401 of the Criminal Procedure Code, 1973 ('Code' for short, hereinafter).
2. The facts giving rise to the present revision may, shortly, be stated at the outset.
The petitioner herein is the original accused who was tried for the alleged commission of the offences punishable under Sections 279, 337, 338 and 304(A) of the Indian Penal Code and also under Sections 116, 112 and 89 of the Motor Vehicles Act, by the learned Judicial Magistrate, First Class, Dehgam, in Summary Case No. 531 of 1982.
3. In that it was alleged that the accused, who was in-charge of a Jeep Car No. GTG 7848, on 19-2-1982, at about 10 a.m. was driving the Jeep Car in a rash and negligent manner on Dehgam-Modasa Road. When the said Jeep Car reached near village Palaiya, the accused/petitioner lost control over the vehicle because of excessive speed. Consequently, the vehicle went off the road and knocked down three persons out of which one child died and Mangabhai Ramabhai and his sister-in-law Ratanben Dhulabhai, sustained injuries of varying gravity and also fracture injury. Deceased Jabu was one year old at the relevant point of time. Thereafter the Jeep Car driven by the petitioner/original accused dashed against a wada and entered into the wada and after crossing the wada, it rushed into another wada and dashed with a bullock, which died on account of the injuries. One Hirabhai Shankerbhai filed complaint and investigation was carried out and the accused/petitioner was charge-sheeted and thereafter he was tried by the learned Judicial Magistrate, First Class, at Dehgam, as aforesaid. The learned. Magistrate, by his judgment and order dated 9-6-1983, convicted the accused for the commission of the offences under Sections 304(A), 279, 337 and 338 of the Indian Penal Code and also under Sections 89, 112, 116 of the Motor Vehicles Act. For committing the offence under Section 304(A) of the Indian Penal Code, the learned Magistrate imposed R.I. for six months and a fine of Rs. 500/- and, in default of payment of fine, S.I. for 15 days. For committing the offence under Section 279 of the Indian Penal Code, the learned Magistrate imposed R.I. for three months and a fine of Rs. 500/- and, in default, S.I. for 15 days. For the offences punishable under Sections 337 and 338 of the Indian Penal Code, the learned Magistrate imposed R.I. for three months on each count and also a fine of Rs. 200/- each and, in default, S.I. for 15 days each. No separate sentence was imposed for the offences under Section 116 of the Motor Vehicles Act. The learned Magistrate was also pleased to impose a fine of Rs. 100/- and, in default, S.I. for 10 days for committing offence under Section 89 read with Section 112 of the Motor Vehicles Act.
4. Being aggrieved by the said conviction and sentence passed by the learned Magistrate, at Dehgam, the accused preferred Criminal Appeal No. 53 of 1983 in the Court of the learned Sessions Judge, Ahmedabad (Rural), at Narol. That appeal was partly allowed, the conviction was confirmed. However, the Sessions Court was pleased to reduce the sentence and instead of six months' R.I. for the offence punishable under Section 304(A) of the Indian Penal Code, it was reduced to three months. The learned Sessions Judge confirmed the sentence passed for the commission of offence under Section 338 of the Indian Penal Code. However, he was pleased to cancel the sentence imposed for committing the offences punishable under Sections 337 and 279 of the Indian Penal Code. Hence this revision application.
5. Learned Counsel for the petitioner has, vehemently, urged and formulated two points for determination in this revision as follows:
(1) That the Courts below have erred in recording the finding of guilt; and
(2) That, alternatively, benefit of probation should be given to the accused.
The aforesaid two contentions are countenanced by the learned Additional P. P. Mr. Bukhari.
5A. Inso far as the first contention as aforesaid is concerned, it may be noted that the Courts below have correctly, appreciated the evidence on record and have, rightly, reached to the conclusion. Re-assessment or re-appraisal of the evidence is not permissible and concurrent finding of facts based on the evidence cannot be interfered with in a revision on one hand. The Courts below have consistently and concurrently held that the accused/petitioner herein was guilty of gross rashness and negligence while driving the Jeep Car at the relevant time, on the date of the accident. This finding of fact is based on the evidence of as many as three eye-witnesses. The evidence on record, undoubtedly, indicated that the accused who was in-charge of the offending Jeep Car at the relevant time was guilty of culpable rashness and negligence. There is nothing on record to warrant interference of this Court at this juncture. The conclusion, concurrently, arrived at about the guilt of the accused and conviction cannot be said to be erroneous or illegal. The manner and mode in which the unfortunate, accident occurred would, manifestly, indicate the great speed with which the Jeep Car was driven at the relevant point of time. Needless to mention that the offending Jeep Car went off the road, it dashed against the injured persons and thereafter it proceeded further, entered into one wada and later on it entered into another wada on the left side of the road and violently dashed against a bullock which also resulted into its death. These circumstances also unequivocally demonstrate the great and uncontrollable speed with which the Jeep Car was driven at the relevant time by the accused/petitioner herein. Apart from the evidence of the eye-witnesses, the circumstantial evidence also is a pointer indicating the gross negligence and rashes on the part of the driver of the Jeep Car accused-petitioner herein. Therefore, there is no reason to interfere with the finding of fact with regard to the conviction of the accused/petitioner herein. With the result, the first contention, as aforesaid, so vehemently raised on behalf of the petitioner is meritless and deserves to be rejected.
6. The second contention is about the quantum of sentence. It is also contended that the accused should have been given the benefit of probation. It is contended that the Courts below have failed to appreciate the provisions of Section 361 of the Code. In that, it is pleaded that the accused is entitled to probation under Section 360 of the Code and also under the provisions of the Probation of Offenders Act. However, the Courts below have rejected this plea without recording reasons thereof. Attention of this Court is invited to Section 361 of the Code. It is true that the Court is obliged to give reasons in the judgment for not dealing the case of the accused under Section 360 of the Code or under the provisions of the Probation of Offenders Act. It is apparent on a bare perusal of Section 361 that the Court is obliged to give special reasons to be recorded in such a situation for not giving the benefit of probation. No special reasons are assigned in the judgment.
7. Therefore, the question would arise for determination as to whether there is a fit case to afford the accused with the benefit of probation? There are several circumstances in the present case which are required to be borne in mind while dealing with this aspect. It is true that, ordinarily, a person who is guilty of rashness and negligence cannot be leniently dealt with, more so when the rash and negligent driving has resulted into untimely and premature demise of a person and injuries to two persons, who, fortunately, survived a major mishap. One minor Jabuben was killed. She was aged about one year at the relevant time. Prima facie, the manner and mode in which the unfortunate accident occurred and the resultant effect of serious injuries to two persons and the death of a minor child, would not call for grant of probation, more so when such accidents are rapidly increasing. Nonetheless, this is one aspect of the matter and Court cannot be oblivious to the another aspect of the matter, i.e., peculiar circumstances pertaining to the accused in a given case like, age, antecedents, character and other special circumstances obtainable.
8. In the present case, this Court would like to highlight the special circumstances which would influence the mind of this Court for the grant of benefit of probation and which are very vital and significant:
(1) That the accused is a Government servant.
(2) That the accident occurred at the time when the accused was driving the Jeep Car with a view to chase a Metador going with speed and accused being the driver in Regional Transport Office had to chase the speeding offending Metador by and under the order of his superior.
(3) That the accident occurred when, admittedly, the accused was discharging his duties as a driver of the Jeep Car (There is no dispute about the fact that the accused is a driver who has been driving the Jeep Car and has been serving in Regional Transport Office).
(4) That the accused is the only bread-winner in the family who has to shoulder responsibility of maintaining his wife, daughter aged about 7 years, son aged about 6 years, widowed mother and also a family consisting of four persons of his late elder brother.
(5) That the accused has been serving in the R.T.O. since last ten years and as per the record, this is the first accident in which he is involved.
(6) That the accident involving the accused occurred as early as in 1982. Therefore, the long time gap is also required to be considered.
Considering the aforesaid factors, there is a fit case to grant probation to the accused. Learned Counsel for the petitioner/accused has also placed reliance on a decision of the Apex Court of the land in the case of Aitha Chander Rao v. State of A.P. 1982 Cri. LR 7 (SC) the Supreme Court held that the accused who was a Government servant and was negligent should be released on probation so that his service career is not affected in view of the provisions of Section 12 of the Probation of Offenders Act. The accused was, therefore, admitted to the benefit of probation. The ratio of the aforesaid decision of the Supreme Court is squarely attracted to the facts of the present case.
9. Having regard to the peculiar facts and special circumstances of the present case, this Court is of the opinion that it is eminently just and reasonable to give benefit of probation to the accused/petitioner herein.
10. At this stage it may be mentioned that the learned Additional P.P. Mr. Bukhari, has rightly pointed out that considering the facts of the present case it is necessary to invoke the provisions of Section 357(3) of the Code, ordering the accused to pay amount of compensation to the injured persons and to the mother of the deceased. Section 357(3) provides that when a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. There is no dispute about the fact that two persons had sustained serious injuries on account of the violent impact of the Jeep Car. One Mangabhai Ramabhai and his sister-in-law Ratanben Dhulabhai had sustained injuries. Both of them had sustained fracture. One minor, aged about one year, Jabuben, had sustained fatal injuries. This aspect is not in controversy. Since the accused is found entitled to claim benefit of probation and considering the peculiar facts of the present case, it is eminently a fit case to resort to the provisions of Section 357(3) of the Code and Section 5 of the Probation of Offenders Act on grant of compensation to the injured persons and the mother of the deceased. The learned Counsel for the accused/petitioner herein has, fairly, contended that in the facts of the present case, an amount of Rs. 1,000/- to each injured and an amount of Rs. 3,000/- to the mother of the deceased child, would be reasonable compensation. In the facts and circumstances of the present case, the accused/petitioner herein is required to be directed to pay an amount of compensation of Rs. 1,000/- to Mangabhai Ramabhai and Rs. 1,000/- to injured Rataben Dhulabhai and an amount of Rs. 3,000/- for the death of minor to Ratanben Dhulabhai, who is the mother of the deceased minor child, Jabu by way of compensation.
11. Having examined the facts and circumstances of the case, the order of conviction and sentence passed by the learned Additional Sessions Judge, in Criminal Appeal No. 53 of 1983, is required to be confirmed. However, the accused/petitioner herein is found entitled to the benefit of probation under Section 360 of the Code and Section 5 of the Probation of Offenders Act, 1958. Thus, this is a fit case in which the petitioner herein/accused is required to be released on probation. While confirming the impugned judgment and order, the sentence, order is required to be suspended and the accused is ordered to be released on probation of good conduct under Section 4 of the Probation of Offenders Act and Section 360 of the Code. Thus, instead of sentencing the accused at once to imprisonment, he shall be released on probation on his entering into a bond in the sum of Rs. 3,000/- with a surety of the like amount, for a period of one year, to appear and receive sentence, as and when called upon, during the said period, and in the meantime, he shall keep peace and he will be of good behaviour and the bond to be executed by the accused shall also include the condition that he shall not indulge or repeat the same offence or any commission of offence under the Motor Vehicles Act while working as a driver in Regional Transport Office.
12. In the result, the impugned conviction and sentence order are confirmed. However, instead of immediately directing the accused to undergo sentence of imprisonment, he is released on probation for a period of one year from the date of his executing the bond, as aforesaid. The accused/petitioner herein, shall deposit an amount of Rs. 5,000/- to be paid as aforesaid by way of compensation, within a period of two months from today in the Court of the learned Judicial Magistrate, First Class, at Dehgam. The accused/petitioner is on bail pending this revision and he is given two months time to deposit the amount of Rs. 5,000/- by way of compensation. Therefore, the interim relief shall also continue for a period of two months. The accused/petitioner herein shall execute the bond after depositing the amount of Rs. 5,000/- as directed above.
In the result, this revision application is partly allowed. Rule is made absolute to the aforesaid extent.