R.L. Khurana, J.
1. The petitioner, hereinafter referred to as the accused, stands convicted by the learned Additional Chief Judicial Magistrate, Rampur Bushahr, vide judgment dated 20.2.1999 for the offences Under Sections 279,337,338 and 304-A, Indian Penal Code, and sentenced to simple imprisonment for a period of two years and to pay a fine of Rs. 3,000/- on all the counts. In default of payment of fine, the accused has been sentenced to undergo simple imprisonment for a further period of two months.
2. The conviction and sentence imposed upon the accused by the learned Magistrate stands affirmed in appeal by the learned Sessions Judge vide judgment dated 21.6.1999.
3. Feeling aggrieved, the accused has approached this Court by way of the present revision assailing the conviction and sentence imposed upon him by the two Courts below.
4. Briefly, the matrix of the prosecution case may be thus stated. On 25.11.1996, the accused was the driver of Bus No. HP-06-2038 belonging to Himachal Road Transport Corporation, which was running on Kinnu-Rampur route. At about 8.45 a.m. at Baltidhar the bus met with an accident. It rolled down a 'Khad' resulting into the instantaneous death of 24 passengers and simple/ grievous injuries to 81 passengers. The accident came to the notice of PW 1 Kapir Chand on the basis of whose report, a case came to be registered at Police Station, Jhakri.
5. During the course of investigation, it was revealed that the bus was overloaded with 105 passengers and that the accident was as a result of rash and negligent driving on the part of the accused.
6. On having been put to trial the accused pleaded not guilty. He admitted the accident and took the defence that the accident was due to sudden breakage of some part of the bus. Death of twenty-four passengers and injuries to other eighty-one passengers was not denied.
7. The learned Magistrate on the basis of evidence led before him convicted and sentenced the accused as aforesaid. The conviction and sentence was affirmed in appeal by the learned Sessions Judge.
8. The learned Assistant Advocate General for the State-respondent, at the very outset, has contended that unless there is a manifest illegality or grave miscarriage of justice, this Court should not exercise its revisional jurisdiction and interfere with the order of conviction and sentence passed by the two Courts below, by re-appreciating the evidence.
9. In The Associated Cement Co. Ltd. v. Keshvanand I (1998) CCR 82 (SC) : JT 1997 (10) SC 165, while drawing a distinction between the appellate powers and revisional powers, it has been held by the Apex Court:
It appears that learned Single Judge has equated appellate powers with revisional powers, and that the core difference between an appeal and a revision has been overlooked. It is trite legal position that appellate jurisdiction is co-extensive with Original Court's jurisdiction as for appraisal and appreciation of evidence and reaching findings on facts and Appellate Court is free to reach its own conclusion on evidence untrammelled by any finding entered by the Trial Court. Revisional powers on the other hand belong to supervisory jurisdiction of a superior Court. While exercising revisional powers the Court has to confine to the legality and propriety of the findings and also whether the subordinate Court has kept itself within the bounds of its jurisdiction including the question whether the Court has failed to exercise the jurisdiction vested in it. Though the difference between the two jurisdictions is subtle, it is quite real and has now become well-recognised in legal provinces.
10. The Apex Court reiterated its earlier view taken in State of Kerala v. K.M. Charm Abdullah and Co. AlR 1965 SC 1585, wherein it was held:
There is an essential distinction between an appeal and a revision. The distinction is based on the differences implicit in the said two expressions. An appeal is a continuation of the proceedings, in effect the entire proceedings are before the Appellate Authority and it has power to review the evidence subject to the statutory limitations prescribed. But in the case of a revision, whatever powers the Revisional Authority may or may not have, it has not the power to review the evidence unless the statute expressly confers on it that power.
11. In State of Kerala v. Puttumanaillath Jathavedan Namboodiri : 1999CriLJ1443 , the accused therein was convicted and sentenced by the trial Magistrate for the offences Under Sections 408 and 468, Indian Penal Code. The conviction and sentence were affirmed in appeal by the learned Additional Sessions Judge. On a revision being filed by the accused the High Court of Kerala, upon reappreciation of evidence, interfered with the conviction and sentence and came to hold that the prosecution had failed to establish the case against the accused beyond a reasonable doubt. On further appeal before the Apex Court by the State of Kerala, the order of acquittal passed by the High Court set aside and it was held:
Having examined the impugned judgment of the High Court and bearing in mind the contentions raised by the learned Counsel for the parties, we have no hesitation to come to the conclusion that in the case in hand, the High Court has exceeded its revisional jurisdiction. In its revisional jurisdiction, the High Court can call for and examine the record of 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. On scrutinizing the impugned judgment of the High Court from the aforesaid standpoint. We have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence.
12. Read in the context of the above principle of law, I have no hesitation in concluding that the conviction and sentence passed by the two Courts below, which is based on proper appreciation of evidence, do not suffer from any manifest illegality nor there has been a grave miscarriage of justice. Such conviction and sentence do not call for any interference by this Court in exercise of revisional power. This Court cannot reappreciate the evidence and substitute its own finding in exercise of the revisional power.
13. The rash and negligent driving on the part of the accused is writ large in the present case. Dealing with the question of 'rash and negligent act' the Hon'ble Apex Court in Mohammed Aynuddin @ Miyam v. State of A.P. : 2000CriLJ3508 , has held:
A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.
14. The accused allowed the overloading of the bus. As many as 105 passengers were on board. Some of such passengers were even on the rooftop of the bus. It is in. evidence that the bus was on the descend and just before it fell down into the 'Khad', there was a curve. The lengthy skid marks found on the spot indicate that the bus while on the descend and having negotiated the curve was being driven at a very high speed.
15. Much reliance was placed by the learned Counsel for the accused on the deposition of PW 10 Charan Dass and his report of mechanical examination of the bus Ex. PW 10/A. As per this witness and his report, the accident appeared to have taken place due to sudden breakage of the central bolt of the 'Kamani'.
16. Be it stated that the bus was subjected to mechanical examination twice. PW 6 Vidya Sagar examined the vehicle for the first time on 26.11.1996. The vehicle after the accident was found to be in neutral gear. However, on 28.11.1996, when it was examined by PW 10 Charan Dass, he found the vehicle to be in third gear. It appears that the bus which was lying damaged at the spot since after the accident was tampered with by Some one. There is nothing on the record to show that the place was duly secured and there was no possibility of tampering with the situation/position of the bus. Nor there is anything on the record to show that report Ex. PW 5/A made by PW 6 Vidya Sagar was wrong. The two Courts below, therefore, have rightly not placed reliance either on the testimony of PW 10 Charan Dass or on his report Ex. PW 10/A.
17. It was next contended by the learned Counsel for the accused that the sentence imposed upon the accused is quite harsh and keeping in view that the accused is the sole bread winner having a large family to support, he should be dealt with leniently.
18. It is significant to note that as many as 24 persons had died and 81 persons were injured in the accident due to rash and negligent driving on the part of the accused. The Apex Court in Dalbir Singh v. State of Haryana and Ors. AIR 2000 SC 1677, while dealing with the question of ntence to be imposed for the offence under Section 304-A, Indian Penal Code, he observed:
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 Under Section 304-A, 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 a 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.
19. Therefore, on the facts and in the circumstances of the case, no interference is called for even in the quantum of sentence awarded to the accused by the two Courts below.
20. For the foregoing reasons, the conviction and sentence imposed upon the accused by the two Courts below are maintained. Resultantly, the present petition is dismissed. The petitioner, who is on bail, is called upon to surrender himself to his bail bonds before the learned Trial Court within a period of four weeks from today to receive and serve out the sentence imposed upon him, failing which the learned Trial Court shall proceed against him in accordance with law.