Garg, J.
1. This revision petition has been filed by the accused petitioner against the judgment dated 2.2.2002 passed by the learned Special Judge, SC and ST (Prevention of Atrocities) and Additional Sessions Judge, Bikaner in criminal appeal No. 80/2000 by which he dismissed the appeal filed by the accused petitioner and confirmed the judgment and order dated 20.11.97 passed by the learned Judicial Magistrate 1st Class, Bikaner in Criminal Case No. 97/86 by which the learned Magistrate convicted the accused petitioner for offence under Section 279 and 304A I.P.C. and also convicted another accused Shaukat for offence under Section 94/125 of the Motor Vehicles Act and sentenced each of them as under:
Name
Conviction u/S
Sentence awarded
Mehboob
279 I.P.C.
6 months' S.I.
Mehboob
304A I.P.C.
1 year's S.I. and a fineof Rs. 1000/- in default to further undergo 1 months S.I.
Shaukat Ali
94/125 MV Act
Fine of Rs. 500/- indefault to further undergo 7 days' S.I.
2. It arises in the following circumstances:
On 26.8.86, at about 8.45 p.m., PW. 2 Arjun Ram gave Bayan Ex.P/1 to P.W. 7 Amar Singh stating that he and his wife P.W. 5 Jarav were ploughing their field and their daughter Shanti (Deceased) was grazzing buffaloes in the field. At about 5 p.m. in the evening, the deceased started for home after taking with her buffaloes etc. and at that time, a white car (Ambassador) No. RRT 2052 came from the side of Napasar and driver of that car was driving the car rashly and negligently and dashed against, the deceased who was going side by side on the road towards her village, as a result of which she received injuries and thereafter driver of the car stopped the car and on being asked, he told his name Mehboob and the further stated that the car belonged to him and he took the deceased to the hospital.
3. On this report, the police started investigation. Site plans Ex.P/6 and P/6A were prepared and the injury report of the deceased is Ex.P/2. The deceased succumbed to her injuries on 27-8.86 at about 10.05 a.m. The post mortem report of the deceased is Ex.P/3.
4. After usual investigation police filed challan for offence under Section 279 and 304A I.P.C. against the accused petitioner as well as for offence under Section 94/125 of the Motor Vehicles Act against one Shaukat Ali.
5. On 20.4.90, the learned Judicial Magistrate read over the contents for offence under Section 279 and 304A I.P.C. against the accused petitioner and for offence under Section 94/125 of the Motor Vehicles Act against another accused Shaukat Ali. Both pleaded not guilty and claimed trial.
6. At the trial, the prosecution examined as many as 7 witnesses in support of its case and statements of accused persons were recorded under Section 313 Cr.P.C. but no witness was examined in defence.
7. After conclusion of the tribal the learned trial Magistrate convicted the accused petitioner for offence under Section 279 and 304A I.P.C. and accused Shaukat Ali for offence under Section 94/125 of the Motor Vehicle Act inter alia holding:
i) At the time of accident the car in question was being driven by the accused petitioner rashly and negligently as this fact is very much established by the site plan Ex.P/6 & P/6A apart from other evidence.
ii) That the accused petitioner caused accident after diving his car on wrong side.
8. Against the judgment and order dated 20.11.97 passed by the learned Judicial Magistrate, the accused petitioner preferred an appeal before the learned Sessions Judge, Bikaner which was transferred to the Court of Special Judge, SC and ST (Prevention of Atrocities) and Additional Sessions Judge, Bikaner and the appeal filed by the accused petitioner was dismissed.
8A. Aggrieved from the judgment dt. 2.2.2002 passed by Learned Special Judge, the revision petition has been proofed by the petitioner.
9. In this revision petition the learned counsel for the accused petitioner has raised the following submissions:
i) That findings of both the courts below that the car was being driven by the accused petitioner rashly or negligently are erroneous one as the deceased had come all of sudden along with she buffaloes and she herself hit the car and, therefore, findings of conviction for offence under Section 279 and 304A I.P.C. should be set aside and he should be acquitted.
ii) That in case this court comes to the conclusion that the accused petitioner has committed the aforesaid offences, then he may be released for the period already undergone.
10. I have heard both and gone through the record of the case.
11. Before proceeding further, necessary ingredients to prove the charge for the offence under Section 304A I.P.C. may be stated here. The following requirements must be satisfied before conviction is recorded under Section 304A I.P.C:
1. Death of any person must have been caused:
2. It must have been caused by rash or negligent act: and
3. Such act must not amount to culpable homicide.
12. So far as point No. 1 and 3 are concerned, they are not in dispute and point No. 2 is only in dispute. Before appreciation the same legal aspect in respect of offence under Section 304A I.P.C. has to be kept in mind.
13. The important criteria for deciding whether the driving which led to the accident was rash or negligent would include not only the speed of the vehicle but also the width of the road, the density of the traffic and the attempt if any to overtake other vehicles, resulting in coming to the wrong side of the road and being responsible for the accident.
14. Section 304A requires that the death due to rash or negligent act must be direct or proximate result of the Act. It must be proved that rash or negligent act of the accused was cause causans (immediate cause) and not causa sin qua non (cause of proximate cause. In other words, there must be nexus between the death of a person and rash or negligent act of the accused.
Applicability of Res ipsa loquitur:
15. In criminal cases because of the rules of burden of proof, presumption of innocence and proof beyond reasonable doubt, the maxim res ipsa loquitur could only create an aid in the evaluation of evidence,' an application of the general method of referring one or more facts in issue form circumstances proved in evidence.'. In this view, the maxim did not require the raising of any presumption of law which must shift the burden on the defendants. It only, when applied properly, allowed the drawing of a permissive interference of fact as distinguished from a mandatory presumption, properly so called having regard to the totality of the circumstances and probabilities of the case. The maxim was only a means of estimating logical probability form the circumstances of the accident. Hence, the maxim could be used only as a convenient ratiocinative aid (aid in assessment of evidence.)
16. That in this case, the site plain is Ex.P/6 which shows that the car was coming from Napasar meaning thereby from east to west. In site plan Ex.P/6, it is also stated that the accident took place at place A and the vehicle after the accident went upto place 'B'. The place 'A' is on the right side of car and at the end of the road which clearly reflects that the accident took place on the wrong side. The learned trial Magistrate in his judgment at page 6 has clearly discussed this aspect and, he has come to the conclusion that at the time of accident, the car was being driven by the accused petitioner rashly or negligently and that is why the accident took place on the wrong side of the car.
17. The statements of P.W. 2 Arjun Ram and P.W. 5 Jarav further corroborate this aspect. Thus, the findings recorded by the learned trial Magistrate and affirmed in appeal by the learned Special Judge are based on correct appreciation of evidence and do not require any interference of this Court.
18. The question that arises for consideration is whether the above concurrent findings of fact recorded by both the courts below can be re-appreciated by this Court while exercising revisipnai jurisdiction
19. In State of Karnataka v. Appa Balu Ingale (1), it has been held by the Hon'ble Supreme Court that ordinarily, it is not open for the High Court that ordinarily, it is not open for the High Court to interfere with the concurrent findings of the Courts below specially by reappreciating the evidence in its revisional jurisdiction.
20. A Court of revision is not entitled to reassess and reappraise the evidence unless it finds that the judgment to be revised suffers from some illegality or perversity or when there is glaring defect in the procedure. The revisional Court cannot weigh the sufficiency of evidence.
21. The High Court while sitting in revisional jurisdiction under Section 397 of the Code of Criminal Procedure shall not and cannot re-appreciate the evidence and the finding of fact recorded by the two courts below can only be interfered with if such findings are perverse or based on no evidence or suffered form any error of law.
22. In State of Orissa v. Nakula Sahu (2), the Hon'ble Supreme Court held that although the revisional power of the High Court is as wide as the power of court of appeal, it is now well settled that normally this jurisdiction of the High Court is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which was consequently resulted in flagrant miscarriage of justice. In spite of the wide language of Section 397, the High Court is not expected to act under Section 397 or Section 401 as if it is hearing an appeal.
23. In the present case, both the courts below have concurrently held that the accused petitioner was driving the vehicle in question at the time of accident and that the accused petitioner was driving the vehicle rashly and negligently, as a result of which, accident took place. There findings of facts are based on correct appreciation of evidence. It cannot be said that these findings are perverse or based on no evidence or suffered from any error of law.
24. Thus, in the present case, scrutiny having been made by both the Court of Magistrate and the Court of Sessions and the same having been based on cogent material and proper appreciation of evidence, it is not permissible to reappreciate the same in the revisional jurisdiction.
25. So far as findings recorded by the courts below that the accused petitioner was driving the car in question at the relevant time rashly and negligently and then he hit the deceased after taking his. car on the wrong side as a result of which the deceased received injuries and later on died are concerned, since they are based on correct appreciation of evidence and there is sufficient evidence on the record of the case to prove the above facts and these facts have come in the statements of P.W. 2 Arjun Ram and PW. 5 Jarav and further more in site plan Ex.P/6 and P/6A, they are liable to be confirmed one.
26. For the reasons stated above, the concurrent findings recorded by both the courts below holding the accused petitioner guilty for the offence under Section 297 and 304 I.P.C. are based on evidence, warranting no interference.
On Point of Sentence for Offence Under Section 304-A I.P.C.
27. The argument of the learned counsel for the accused petitioner is that looking to the entire facts and circumstances of the case, either the accused petitioner be released on probation under the probation of offenders Act or in awarding sentence, lenient view be taken and the sentence awarded to the accused petitioner be reduced to the period already undergone by him.
28. A question of sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate Court should not interfere with it. Sentencing an accused person is sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch.
29. In Rattan Singh v. State of Punjab (3), the Hon'ble Supreme Court held as under:-
'Penal Code (1860) Sc. 304A, Rash and negligent driving. Fatal accident. Sentence. No compassion to be shown.'
30. Instate of Karanataka v. Krishna Alias Raju (4), the Hon'ble Supreme Court held as under:-
'Criminal P.C. (2 of 1974). Section 377. Enhancement of sentence. Driver convicted for killing one person and injuring another for offence under Section 304A and under other provision. Sentence of fine of Rs. 250/- Refusal of High Court to enhance sentence. Not proper.'
31. The Hon'ble Supreme Court in Dalbir Singh v. State of Haryana and Ors. (5), has held as under:-
'(1) 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 starring of auto'mobiles, 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.'
(2) The conditions for applying Section 4 of the PO Act have been delineated in the commencing portion of the provision. In it parliament made it clear that only if the court forms the opinion that it is expedient to release the accused on probation for his good conduct regard being had to the circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is 'the nature of the offence'. Thus Parliament has left it to the court to decide when and how the Court should form such opinion. It provided sufficient indication that releasing the convicted person on probation of good conduct must appear to the court to be expedient. The word 'expedient' has been thoughtfully employed by Parliament in the section so as to mean it as 'apt or suitable to the end in view'.
32. Thus, from the observations made by Hon'ble Supreme Court in Dalbir Singh's case (supra), it clearly appears that benefit or probation under the Probation of Offenders Act, 1958 cannot be extended to persons convicted for offence causing death by rash and negligent driving.
33. The Hon'ble Supreme Court in Dalbir Singh's case (supra) has made clear distinction between the professional drivers and non-professional drivers and in the cases of professional drivers, the deterrent element in sentencing such drivers should be maintained and should be kept in mind.
34. In the present case, the petitioner is in jail since 2.2.2002 and in my opinion this period of sentence is not sufficient to meet the ends of justice for offence under Section 304A I.P.C., but since in the present case, the present accused petitioner is not a professional driver and after the accident, the stopped the car and did not try to run away from the scene and further more, he himself took the deceased to the hospital, all these factors compel the conscious of this Court that some leniency should be showered on the accused petitioner in awarding sentence for offence under Section 304A I.P.C.
35. Accordingly, this revision petition is disposed of in the following manner:-
The revision petition filed by the accused petitioner Mehboob Ali against his conviction is dismissed and his conviction for offence under Sections 297 and 304A I.P.C. recorded by the learned Judicial Magistrate, 1st Class, Bikaner vide judgment dated 20.11.97 and confirmed in appeal by the learned Special Judge, SC and ST (Prevention of Atrocities) Cases and Additional Sessions Judge, Bikaner vide judgment dated 2.2.2002 is maintained.
However on point of sentence, this revision petition is partly allowed in the manner that sentence awarded to the accused petitioner for offence under Section 304A I.P.C. by the learned Judicial Magistrate, 1st Class, Bikaner vide order dated 20.11.97 and confirmed in appeal by the learned Special Judge, SC and ST (Prevention of Atrocities) Cases and Additional Sessions Judge, Bikaner vide judgment dated 2.2.2002 is reduced to 6 months' S.I. from 1 year's S.I. The rest order of sentence dated 20.11.97 for offence under Section 279 I.P.C. passed by the learned Judicial Magistrate, 1st Class Bikaner and affirmed in appeal by the learned Special Judge, SC and ST (Prevention of Atrocities) Cases, Bikaner vide judgment dated 2.2.2002 is maintained.