V.K. Ahuja, J.
1. This is a revision petition filed by the petitioner against the judgment, dated 27.8.2001, of the Court of learned Sessions Judge, Bilaspur, vide which he dismissed the appeal filed by the petitioner against the judgment of the Court of learned Chief Judicial Magistrate, Bilaspur camp at Ghumarwin, convicting the petitioner under Sections 279/304-A of the IPC as under:
Under Section 279: Rigorous imprisonment for four months andto, pay fine of Rs. 500/-.Under Section 304-A: Rigorous imprisonment for 1-1/2 years andto pay fine of Rs. 2,000/-.In default of payment of fine, the petitionerwas sentenced to undergo rigorous imprisonmentfor four months.
2. Briefly stated the facts of the case are that on 9.11.1992 at about 7.45 p.m. at place Banoha, Police Station Bharari, a minor boy Pushvinder Kumar aged about 8-9 years was crushed by a Maruti Van Bearing No. HP 02 2504, being driven by the petitioner. The injured was taken to the hospital where he was declared dead. A report was lodged with the police by PW-7 Jai Lal, on the basis of which a case was registered and after the registration of the case, the challan was filed as against the petitioner under Sections 279/304-A of the IPC. The petitioner was tried by the learned trial Court leading to his conviction, as detailed above, which findings were affirmed by the learned Sessions Judge on appeal.
3. I have heard the learned Counsel for the parties and have gone through the record of the case.
4. The submissions made by the learned Counsel for the petitioner were that no witness has stated that the petitioner was driving the vehicle rashly or negligently. There is evidence to show that the Van was going upwards and as such it was not going at a high speed. It was also submitted that the boy suddenly appeared on the road after getting down from the bus and since he suddenly came on the road, the accident took place. A plea was also raised that on seeing the Van, the boy became perplexed and had not struck with the vehicle but had fallen on the road. The evidence of the prosecution, therefore, has to be appreciated in the light of these points raised by the learned Counsel for the petitioner during the course of the arguments.
5. From a perusal of the evidence led by the prosecution, it is clear that they had examined 17 witnesses and out of them, the statements of five witnesses can be said to be material whose evidence deserves to be appreciated accordingly. PW-1 Jagdish Gupta was going in the said Van which met with the accident, who stated that something struck with the Van which was stopped suddenly and the Driver proclaimed that a boy had come in front of the Van. He came out of the Van and the boy was taken to the hospital. He has clearly stated that he had not seen the boy striking with the vehicle. In regard to the speed of the Van, he has stated that it is incorrect that since the vehicle was going upwards, it was being driven at a speed of 10 kms. but stated that the speed may be in between 10-20 kms., which cannot be said to be fast speed. He denied his knowledge in case the boy became perplexed and fell on the road suddenly, but he is very emphatic that he had heard the noise of striking with the Van, which clearly suggests that the boy had not fallen on the road but had struck with the vehicle.
6. PW-2 Dinesh Gupta, another occupant of the Van, has also stated that their Van crossed the bus. He heard the noise of striking and the driver applied the brakes and the Van stopped at some distance. He could not see himself the boy striking with the vehicle. In regard to the speed he has stated that the speed was normal meaning thereby that it was neither fast nor slow. He admitted that there was some ascend on the road but it was not too much. He denied the suggestion that the boy became perplexed and fell on the road. He also denied the suggestion that the boy had not struck with the Van meaning thereby that his statement clearly shows, as stated by PW-1 Jagdish Gupta also, that the boy had not fallen on the road but had struck with the Van.
7. The third witness is PW-7 Jai Lal, a shopkeeper at the place of occurrence, who had stated that a boy was crossing the bus from the backside and a Maruti Van came from other side at a fast speed, which dragged the boy to some distance. In cross examination, he has stated that he was at his shop at the time of accident, which is at a distance of less than 10 metres. He specifically denied the suggestion that the Maruti Van was going at a slow speed. He also denied the suggestion that the speed was only 10 kms. and is very specific that he was standing at his shop at the time of accident and had seen the occurrence. He has clearly stated that the boy had not run at that time but was walking normally.
8. PW-8 Khushhal Singh, another shopkeeper having his shop at the place of occurrence, had stated that he had closed his shop and was proceeding towards his house. A Maruti Van came at a fast speed, which struck with a boy aged about 8-9 years. In cross examination, he has stated that at the time of accident, he was at a distance of 10 feet from the place. He denied the suggestion that the Van was going at a speed of 10 kms. per hour, but stated that the speed was more than 50-60 kms. per hour. He specifically denied the suggestion that the boy became perplexed and came under the vehicle.
9. The fifth eye witness and the material witness is PW-12 Meera Devi, the mother of the deceased, who was accompanying the deceased at the time of accident. She stated that a vehicle came at a fast speed like air and after crossing the bus it struck against her son who fell down and thereafter was taken to the hospital. She admitted that there is some ascend on the road from Kuthera to Banoha. She stated that she cannot say about the speed of the vehicle but denied that it was in between 10-15 kms. She clearly stated that the taxi was going at a fast speed. She denied the suggestion that on seeing the Van, her son jumped and struck with the Van in question.
The fact that the petitioner was driving the vehicle at the relevant time or that the boy had died as a result of the injuries sustained by him in striking with the vehicle stands established from the evidence led by the prosecution and has not been disputed. A plea was also raised during the course of arguments that the prosecution had not examined one another lady accompanying PW-12 Meera Devi mother of the deceased, whose name was known to Meera Devi also, as admitted by her. The Investigating Officer has stated that he had not associated the said woman and had not given any specific reason for not joining the said lady as a witness. However, the statement of PW-12 Meera Devi shows that lady may be from Village Khasri meaning thereby that she was not clear to which village the said woman belonged. This may be the reason for non-joining of the witness, which fact should have been elicited from the Investigating Officer, who simply stated that he did not associate the said woman. The learned trial Court had considered this plea and rejected the contention rightly so that it is not the number of witnesses that matters but the quality of the evidence led by the prosecution.
10. As already discussed above, all the witnesses have denied that the boy had fallen on the road suddenly or became perplexed and this fact stands established that the vehicle had struck with the deceased. The points worth consideration are as to the particular place where the accident took place or at how much distance from the bus the accident took place and at how much distance the Van was stopped by the petitioner. These facts are necessary to be considered in appreciating the question if the boy suddenly appeared on the road from the back side of the bus or at how much distance the vehicle was stopped by the accused, which will help in arriving at a correct conclusion if the petitioner was driving the vehicle rashly or negligently.
11. Coming to the testimony of the witnesses in this regard, PW-1 Jagdish Gupta has stated that the doors of the bus had been crossed by the Van and the Van stopped at a distance of 10/12 feet. PW-2 Dinesh Gupta has stated that the Van had crossed the bus when he heard the noise of striking and the Van stopped at some distance. PW-7 Jai Lai has stated that the boy was dragged by the Van to some distance. PW-8 Khushhal Singh has stated that the boy was dragged to a distance of 15-20 feet. PW-12 Meera Devi had stated that the Van struck with her son and took him to other side. In regard to the distance, the Investigating Officer PW-17 Pritam Singh, Inspector, has stated that the boy was dragged for a distance of 72 feet. In another question, the Investigating Officer has stated that he cannot say with which part of the Van the boy struck and was dragged to a distance of 72 feet. If this fact had been stated by the Investigating Officer at one place, it could have been presumed also that this distance of 72 feet may have been wrongly recorded by the Court, but a subsequent question was again put up in regard to the dragging for a distance of 72 feet, which clearly shows that the distance was correctly recorded as stated by the witness. There may be some exaggeration in this version but the fact remains that the witness specifically stated at all places that the boy was dragged for a distance of 72 feet. The distance was also clearly mentioned in the site plan Ext. PW-17/A prepared by this witness in which also the distance has been mentioned between the place where the boy struck and was dragged as 72 feet. This clearly shows that this fact was correctly recorded by the Court and has been correctly stated by the witness and the other witnesses have also supported this statement that the boy was dragged to a quite distance though the same had been stated by them approximately, but this witness must have calculated the distance and then mentioned the same in the site plan prepared by him, which has to be believed.
12. I have already mentioned above that the witnesses have stated that it is incorrect that the vehicle was going at a speed of 10 kms. Or less and in case the vehicle was going at a speed of 10 kms., it could have been easily stopped at some distance when the brakes were applied by the petitioner. The fact that the boy was dragged to a quite distance clearly shows that the vehicle was going at speed which fact has also been stated by some of the witnesses, as mentioned above. Coming to the fact that the witnesses have not specifically used the word rashly or negligently, this has to be inferred from the statements of the witnesses and the mere fact that some of the witnesses specifically did not use the word is not sufficient to hold that the manner of the accident or the fact that the petitioner was not driving the vehicle rashly or negligently has not been proved. Some contradiction was also sought to be raised from the fact that some of the witnesses have stated that it was ascend at the spot which fact was admitted by some of the witnesses, but the Investigating Officer PW-17 Pritam Singh had clearly admitted that there was no ascend at the spot and the statements of some of the witnesses only suggest that there was some ascend but this fact was not admitted by all the prosecution witnesses. Coming to the rash or negligent fact, PW-7 Jai Lai had specifically stated that the vehicle came at a fast speed and struck with the deceased. PW-8 Khushhal Singh had also stated that the vehicle came at a fast speed and, therefore, all the facts and the circumstances of the case clearly show that the vehicle was being driven rashly or negligeintly by the accused, which fact stands established beyond any reasonable doubt.
13. To substantiate his plea that in case a boy suddenly comes on the road the driver cannot be held liable, the learned Counsel for the petitioner had relied upon the decision in Badri Prasad Tiwari v. State : 76(1993)CLT668 , wherein it was observed that rashness or negligence to be established must be more than mere carelessness of error of judgment. The distinction between rashness and negligence is that negligence connotes want of proper care, while rashness conveys of idea of reckless doing of an act without consideration of any consequences.
14. Reliance was also placed on the decision in Sucha Singh v. State of Himachal Pradesh Latest HLJ 2004 (HP) 1336, in which it was observed that in the absence of any positive evidence of rashness and negligence in the present case and the mere fact that the boy came and crushed would not lead to the conclusion that the driver was driving the vehicle in a rash and negligent manner.
15. Reliance was also placed on the decision in State of Punjab v. Balbir Singh AICLR 2004 (1) 164, which shows that the star witnesses of the prosecution did not state a word that the respondent was driving the bus in question rashly or negligently and, therefore, it was held that the driver was entitled to acquittal.
16. I have carefully gone through all these decisions, which are based upon the facts of those cases only. In the present case, the facts of the case are very clear that the accident took place ahead of the bus and the Van had already crossed the bus, which rules out the possibility that the boy suddenly came on the road from the backside of the bus. The evidence led clearly shows that the boy was dragged to a quite distance and the witnesses have clearly stated that the petitioner was driving the vehicle at a fast speed and the evidence clearly proves that the petitioner was driving the vehicle rashly and negligently, which findings were given by the learned trial. Court and affirmed by the learned appellate Court and I see no reason to interfere in those findings recorded by the Courts below, which findings are accordingly affirmed.
17. Coming to the sentence imposed, the learned Counsel for the petitioner prayed that the petitioner has got two children, who are being looked after by the petitioner himself since his wife has left him. He also took the plea that 16 years have passed since the occurrence took place and, therefore, the petitioner deserves the leniency of the Court. In my opinion, the mere fact that 16 years have passed since the occurrence had taken place cannot be said to be a ground to reduce the sentence. However, in regard to the other plea that the petitioner has got two children and his wife has left him, I am not inclined to consider this plea to reduce the sentence imposed upon the petitioner and the learned trial Court rather had already shown pittance upon the petitioner and had sentenced him for 1-1/2 years and the amount of fine imposed was also very low. Keeping in view the fact that number of road accidents are increasing day by day resulting in the death of unfortunate persons going on the roads, I am of the opinion that the sentence imposed by the learned trial Court does not call for an interference and as such there is no merit in the revision petition filed by the petitioner, which is dismissed accordingly. The petitioner shall surrender before the learned trial Court, who shall take steps in the alternative to issue warrant of arrest against the petitioner to serve the sentence affirmed by the Court and the intimation about the arrest and the fact that the petitioner has been sent to custody shall also be sent to this Court for record.
18. The petition filed by the petitioner is dismissed accordingly.