Surya Kant, J.@mdashThis revision petition has been directed against the judgment dated August 29, 1986 passed by the Chief Judicial Magistrate, Kurukshetra, whereby the Petitioner was held guilty of committing offences under Sections 302-A, 279, 337 and 338 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for two years along with a fine of Rs. 500/- for an offence u/s 304-A IPC, RI for three months for an offence u/s 279 IPC, RI for our months for an offence u/s 337 IPC and RI for nine months u/s 338 IPC and in default of payment of fine, further RI for two months, though all the substantive sentences of imprisonment were directed to run concurrently, as well as against the judgment dated November 9, 1987, passed by learned Additional Sessions Judge, Kurukshetra, whereby the Petitioner''s appeal against the aforesaid judgment dated August 29, 1986 passed by the Chief Judicial Magistrate, Kuruskshetra, was dismissed.
2. The Petitioner was a driver of the Haryana Roadways and was driving the bus bearing registration No. HYA-2270 on the fateful day which was proceeding from Kalka to Hodel. There were about 50 passengers in the bus. A truck bearing registration No. DLL-7215 was parked on the left side of the road near the outskirts of village Masana on the National Highway (G.T. Road), between Pipli and Shahbad with its back towards the coming bus and another truck No. HRL-3425 driven by Krishan Lal (PW-5) came from the opposite direction. When the truck bearing registration No. HRL-3425 was about to cross the stationary truck, which was parked already on the left side of the road, the bus driven by the Petitioner dashed against truck No. HRL-3425, thereby causing a major accident in which six innocent passengers lost their lives, apart from various others, who received multiple injuries. This led to the registration of the case and consequential prosecution of the Petitioner under Sections 279/337/338/304-A IPC, for which the Petitioner having been held guilty, was sentenced as referred to above.
3. Aggrieved at the concurrent findings holding him guilty for causing the accident in question by rash and negligent driving and his consequential sentence that the Petitioner approached this Court by way of the present petition which came up for motion hearing on November 23, 1987. As the order of even date bears out, reliance was placed on certain photographs of the scene of occurrence which were also exhibited before learned trial Court and on perusal thereof, revision petition was admitted and the Petitioner was granted bail to the satisfaction of the CJM, Kurukshetra.
4. Shri Navneet Chhokar, learned Counsel for the Petitioner, vehemently argues that the photographs on record, Ex. P-1 to P-8, especially those, to which reference was made at the time of admission of this revision petition, lead to an irresistible conclusion that the Petitioner, by no stretch of imagination, can be held responsible for causing the accident by his rash and/or negligent driving. According to Shri Chhokar, the accident is exclusively attributable to the drivers of both the trucks, namely, the first, who wrongly parked the truck on the firms of the National Highway and the second who, as depicted in the photographs, was not driving the truck in the right direction. According to him the placement of the bus in the photographs clearly suggests that the Petitioner was driving on the extreme left side and was going straight. According to learned Counsel if the amount of negligence is proportionately distributed amongst the three drivers, the element of rash or negligent driving, to be attributed to the Petitioner, comes out totally negligible. Shri Chhokar then contended that the prosecution having not examined the investigating officer as a witness, has caused great prejudice to the Petitioner. He also assails the judgment passed by the learned Courts below on the ground that the Petitioner has been held to be a rash and negligent driver merely because the long route bus driven by him on a National Highway has been stated to be at a high speed by a few witnesses. In support of his aforementioned contention, reliance has been placed by him on two judgments of this Court in Pardeep Kumar v. State of Haryana, 2000(2) RCR (Crl.) 820 and Ashok Kumar v. State of Haryana, 2001 (3) RCR(Crl.) 17.
5. Alternatively, Shri Chhokar contended that the occurrence had taken place on July 11, 1979. The Petitioner faced protracted trial for more than seven years before he was convicted and sentenced on August 29, 1986. He availed the concession of bail during the pendency of his appeal before the learned Additional Sessions Judge as well as during the pendency of the present revision petition before this Court which was admitted on November 23, 1987; thus, more than 18 years have passed; the Petitioner has already been removed from the government service and he is now an old person of more than 60 years of age. Shri Chhokar submits that during the period of last about more than 19 years after his conviction, the Petitioner has not committed any such like offence and this is the solitary criminal negligence attributed to him while driving a vehicle. Learned Counsel further contends that the Petitioner has already undergone actual sentence of one month and twenty eight days out of the total sentence awarded to him and having regard to the peculiar facts and circumstances of this case, referred to above, it is a fit case for invoking powers u/s 4 of the Probation of Offenders Act, 1958.
6. On the other hand, Shri R.D. Sharma, learned Deputy Advocate General, Haryana, contends that there is concurrent finding of fact recorded by the Courts below, on appreciation of the evidence, which might not warrant any interference by this Court in its revisional jurisdiction. According to him, the investigating Officer, ASI Krishan Lal, could not be examined as he unfortunately died before he could depose before the Court and this fact has been taken notice of by the learned trial Court. According to him, merely because the truck drivers could also be held responsible for causing the accident, is no circumstance to absolve the Petitioner from his act of gross criminal negligence which took away the lives of six innocent persons, apart from multiple injuries to several others.
7. I have hard learned Counsel for the parties and have also perused the evidence on record in order to satisfy the conscious (conscience ?) of this Court with regard to rash and negligent driving attributed to the Petitioner. The principles in relation to scope of interference by the revisional Court are well known. Even if, on reappraisal and re-appreciation of the evidence on record, second view is possible, yet the one taken by the Courts below must repvail. Though from the photographs on record, coupled with the statements of defence witnesses, who were also passengers and had witnessed the occurrence, it does appear that both the truck drivers, especially driver of truck No. HRL-3425, contributed a lot in causing the unfortunate accident, yet it does not absolve the Petitioner from the charge of rash and negligent driving inasmuch as having taken notice of the fact that a truck was parked adjoining to road leaving hardly sufficient space for him to cross over and the bus was very likely to be sandwiched between the truck already parked and the one coming from the opposite side, the Petitioner was expected to slow down, more so when there were about 50 passengers in his bus. He failed to do so. The findings returned by the Courts below in relation to rash and negligent driving of the bus by the Petitioner, therefore, can neither be termed as perverse nor based upon no evidence which might warrant interference by a revisional Court. The aforesaid observations also answer the contention on behalf of the Petitioner that he has been held guilty of the offence merely on account of driving the bus at a high speed. Similarly, the plea of alleged prejudice caused to the Petitioner due to non-examination of the Investigating Officer has also been satisfactorily answered by the prosecution. No interference, is, thus, called for so far as concurrent findings of fact with regard to guilt and consequential conviction of the Petitioner, are concerned.
8. As regards the second contention of the learned Counsel for the Petitioner, namely, invoking powers u/s 4 of the Probation of Offenders Act, 1958, learned State Counsel is also not in a position to refute the fact that the Petitioner has been subjected to a protracted trial, followed by pendency of his appeal and revision from last over 25 years. He has already lost the government job, apart from undergoing actual sentence for a period of one month and 28 days. In the long spell of over 25 years after the unfortunate accident took place in 1979, the Petitioner has not been reported to have caused any other accident either while working with the Haryana Roadways or in his private capacity.
9. Having regard to the aforementioned circumstances as well as the fact that the Petitioner is an old person of over 60 years, I am of the view that the ends of justice would be served if instead of sending the Petitioner behind bars at this stage to serve the remaining part of sentence, he is released on probation. So ordered.
10. Consequently, this revision petition is partly allowed. While upholding the conviction of the Petitioner, the sentence awarded to him by learned Chief Judicial Magistrate, Kurukshetra, which was upheld by learned Additional Sessions Judge, Kurukshetra, is modified to the extent that the Petitioner instead of undergoing rigorous imprisonment, shall be released on probation for a period of one year on his entering into a bond in the sum of Rs. 25,000/- with one surety of the like amount, to the satisfaction of the CJM, Kurukshetra, undertaking therein that he shall keep peace and be of good conduct and shall also appear before the District Probation Officer, Kurukshetra during the said period, to receive sentence, as and when called.
Revision partly allowed.
