Judgment:
B.R. Gavia, J.
1. The applicant, has preferred the present revision application, under Section 397 of the Code of Criminal Procedure, challenging the order passed by the learned Sessions Judge, Yavatmal, dated 27th July, 2000 in Criminal Appeal No. 44 of 1996, thereby dismissing the appeal of the present applicant, filed against the judgment and order, passed by the learned Judicial Magistrate First Class, Yavatmal in Summary Criminal Case No. 350 of 1992.
2. The applicant/accused, was charged for the offence punishable, under Sections 279, 337, 308 and 304A, of the Indian Penal Code, on the basis of charge sheet instituted by P.S.O., Yavatmal (Rural). The prosecution story, in brief is that, on 27-4-1992 at about 08:00 p.m., the applicant/accused Kisan Pandurang Pachange, was under influence of liquor and that when the bus was plying from Jodmoha to Yavatmal, he was driving the bus, in a rash and negligent manner, due to which, an accident occurred, leading to the death of two persons. The learned Judicial Magistrate First Class, Yavatmal, relying on the sole testimony of witness Devidas (PW-1), came to the conclusion, that, the prosecution has proved the offence, under charge, against the accused beyond reasonable doubt. The learned trial Court, therefore, by its judgment and order, dated 27-11-1996, convicted the applicant/accused, for the offence punishable under Sections 279 and 304A of the Indian Penal Code and sentenced him to undergo Simple Imprisonment for three months and to pay a fine of Rs. 1,000/-, on each count and in default of payment of fine, he was further sentenced to undergo Simple Imprisonment for two months, on each count.
3. Being aggrieved by the judgment and order, passed by the learned J.M.F.C., Yavatmal, dated 27th November, 1996, the appellant preferred an appeal before the learned Sessions Judge, Yavatmal. The said appeal being Criminal Appeal No. 44 of 1996, came to be dismissed, by the learned Sessions Judge, Yavatmal vide order dated 27th July, 2000, relying again on the sole testimony of witness Devidas (PW-1).
4. Further, being aggrieved by the judgment and order, passed by the learned Sessions Judge, in Criminal Appeal No. 44 of 1996, the present applicant has approached this Court, by way of present revision application.
5. Heard, Shri S.D. Sirpurkar, learned Counsel, appearing on behalf of the applicant and Shri A.S. Sonare, learned Additional Public Prosecutor.
6. The learned Counsel for the applicant, has submitted that, the conviction based on the sole testimony of Devidas (PW-1), was not sustainable in law, as the said witness was not trustworthy. Shri Sirpurkar, further submitted that, the prosecution had also failed to place on record, the medical evidence or any other material, to establish that the applicant, was driving the vehicle under the influence of liquor. Shri Sirpurkar, therefore, submitted that the prosecution, had failed to prove the case, beyond reasonable doubt and as such benefit of doubt, ought to have been given to the applicant/ accused.
7. In support of his submissions, Shri Sirpurkar relies upon the judgment of Orissa High Court in the case of Penu alias Pannu Sethi v. State reported in 1983 Crimes 876. In particular, he relies upon the following observations :--
'In order to establish criminal liability the facts must be such that the negligence of the accused went beyond a mere matter of compensation and showed such disregard for life and safety of others as to amount to a crime' Bharosi v. State. 'In order to amount to criminal rashness or criminal negligence it must be found that the rashness has been of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be occasioned thereby. The criminality lies in running the risk of doing such an act with recklessness and in difference to the consequences.'
8. Shri A. S. Sonare, learned Additional Public Prosecutor, vehemently supported the judgments of the learned JMFC, Yavatmal and learned Sessions Judge, Yavatmal. Shri Sonare submitted that, both the Courts below, have concurrently held that, the prosecution had proved its case, beyond reasonable doubt and that this was not a fit case, wherein this Court should interfere, with the concurrent finding of facts, in its revisional jurisdiction under Section 397 of Code of Criminal Procedure.
9. Shri Sonare, the learned APP, relies upon the judgment of this Court, in the case of Jayprakash Laxman Tambe v. State of Maharashtra reported in 2003 A MR (Cri) 2191. Learned APP, in particular drew attention of this Court to the following observations of the learned Single Judge of this Court in the case of Jayprakash Laxman Tambe v. State of Maharashtra (cited supra).
'The words, 'negligence' and 'rashness' used in Section 304A of Indian Penal Code have to be understood in proper sense and in proper spirit. Negligence indicates total negligence on the part of the driver. It means that he was driving the vehicle in such a negligent way which would stamp his driving by only word 'negligence'. Rashness indicates that he drives the vehicle in such a way while driving he knows that by such driving he is likely to invite an accident but hopes that such accident may not occur.'
10. In view of the aforesaid submissions, we have to examine, the merits of the present application. No doubt, that, the scope of interference by this Court in revisional jurisdiction, under Section 397 of Criminal Procedure Code, is limited. In its revisional jurisdiction, this Court, is not expected to sit as a Court of Appeal and reappreciate the evidence. However, when the findings of the Courts below, appear to have been recorded, on the basis of no evidence, or evidence which even if believed in entirety, cannot prove the guilt of the accused for the offences charged, this Court, would be justified, in exercising its jurisdiction, under Section 397 of the Code of Criminal Procedure.
11. The prosecution case, is based solely, on the deposition of Devidas (PW-1). No doubt, that the conviction, can also be based, upon the sole testimony, of solitary witness, if the witness is found to be trustworthy or his evidence reliable.
12. In order to appreciate, as to whether the prosecution, has proved its case, beyond reasonable doubt, it would be necessary to consider the deposition of Devidas (PW-1), which reads as under:--
'Incident took place in the year 1992 in the evening. I was present with my nephew named Vilas at the S.T. Stand of Indmoha. One S.T. Bus from Ghatanji came there. We bounded in bus for Yavatmal. Accused was the driver of the Bus. When bus reach near Dhaba I ring the bell. Accused was 'under the influence of liquor, conductor was also under influence of liquor. The Bus was not stopped in spite of bell. Bus went up to some difference of 1/2 km. noses went upto 200 ft. I heard the sound near the bridge Bus fell down in the Bridge. About 20-25 passengers were in the bus, I sustained injury, Vilas also sustained injury on his head his teeth were dislocated.'
13. No doubt, that the testimony of Devidas (PW-1), has not been shaken in his cross-examination. But, it is a primary responsibility of the prosecution, to prove its case, beyond reasonable doubt. For bringing home, the case under Sections 279 and 304A, it is necessary, that the case of negligence and rashness has to be proved. It is the duty of the prosecution, to prove that the driver, was driving a vehicle, in such a way, that it showed disregard for life and safety of others. Or that, the rashness is of such a degree, so as to amount to taking hazard, knowing that the hazard, was of such a degree, that injury was most likely to be occasioned thereby. Even in the judgment of Jayprakash Laxman Tambe v. State of Maharashtra (cited supra), relied upon by the learned APP, it is observed that, only by driving the vehicle with high speed, it does not amount to rash and negligent driving. It is needless to state that, onus is on the prosecution, to prove that the vehicle was driven, in a rash and negligent manner.
14. From the deposition of Devidas (PW-1), it can be seen that, there is not even a whisper, as to whether the vehicle was driven in rash and negligent manner. Leave apart, giving details of the rash and negligent manner, in which the vehicle was being driven. The evidence of Devidas (PW-1), does not establish that, the accused was driving vehicle, in such a way, that it showed total disregard for life and safety of others. Neither does it establish, that the vehicle was driven in hazardous or reckless manner, knowing that the result of such driving, was most likely to cause injury to the persons, sitting in the vehicle or the persons or the vehicles on the road. The statement regarding the accused, being under the influence of liquor, in the deposition of Devidas (PW-1), cannot also be given much importance, in the absence of any medical evidence to corroborate the same.
15. In this view of the matter, I am of the view, that there was no material on record, to bring home the guilt of the accused, for offence punishable under Section 304A, beyond reasonable doubt. Therefore, the conviction of the accused, which, in my opinion is based on the evidence, which does not provethe offence charged with, beyond reasonable doubt, is not sustainable in law. The accused/applicant was entitled to benefit of doubt.
16. The revision application is, therefore, allowed. The judgment and order passed by the learned JMFC, in Criminal Case No. 350 of 1992, convicting the appellant for the offence punishable under Section 279 and 304A of Indian Penal Code for simple imprisonment for three months and a fine of Rs. 1,000/- on each count and in default of fine, to suffer further simple imprisonment for two months; and the judgment and order of learned Sessions Judge, in Criminal Appeal No. 44 of 1996, thereby dismissing the appeal, filed by the appellant, are hereby quashed and set aside. The applicant is acquitted, for the offence punishable under Section 279 and 304A of Indian Penal Code. The bail bonds shall stand cancelled.