Judgment Murlidhar, J. 1. REVISIONIST Mohd. Ashraf has been convicted under Section 279, 337 and 304 (A) IPC and sentenced to R. I. for six months, one year and two years respectively on the three counts all the sentences to run concurrently. 2. IN the town of Chandpur in district Bijnor there is a north-south road in the mandi area, The width of the road is about 7 paces and there is a 2 pace wide Kharanja on both sides of it. Att the relevant place to east of this road lies the vacant area used for Sabzi Mandi. To east of this road about 15-20 paces south of a point where another load branches off from it towards west stands a Neem Tree. Under this Neem tree on the edge of this road, the victim Dilip Chand and Om Prakash used to sell cloth on their phar which means a roadside patch of land used for a shop with the wares spread on the ground itself. There is no dispute that on 13-12-75 at about 4.30 p. m. truck no DHG 2558 laden with 105 bags of sugar coming from north collided with Om Prakash and his father Dilip Chand and stopped within three or four paces. Both Om Prakash and Dilip Chand were injured and Om Prakash died on the way to hospital. The prosecution case was that the truck was being driven fast and in a rash manner. The revisionist claimed that he was quite slow, that Om Prakash and Dilip Lhand suddenly came in front of the truck when trying to cross the street, that inspite of his best efforts to stop the vehicle, they get injured, and that he was not at fault. The prosecution examined four witnesses about the occurrence, P. W. 4 Dilip Chand injured and P. Ws. 1 to 3 Devi Dayal, Shyam Sunder and Madan Lal of whom Shyam Sunder had his shop on title same street a few paces to north of the place of occurrence. All of them stated that the truck was fast and virtually ran over the injured persons sitting on the phar. They denied the suggestion that the victim were trying to cross the road. In an examination of the vehicle on 17-12-75 Foreman of the Roadways Corporation found the brakes of the vehicle to be defective. All of them stated that the truck was fast and virtually ran over the injured persons sitting on the phar. They denied the suggestion that the victim were trying to cross the road. In an examination of the vehicle on 17-12-75 Foreman of the Roadways Corporation found the brakes of the vehicle to be defective. The trial court held that although the truck was not fast the revisionist was clearly driving rashly and negligently and the defective brakes in no way diminished his liability The Sessions Judge in appeal took the same view observing that on a crowded road with aj heavy load the duty of care on the part of the driver was ever greater. He also took note of the investigating officer's evidence that after the accident the truck was found to have got over the phar. In revision these findings have been challenged. 3. IT may be straightway mentioned that the learned counsel for the revisionist is correct in pointing out a confusion in the judgment of the Sessions Judge. The Sessions Judge seems to have towards the end of the judgment acted on the impression that the truck was going towards north and was about to turn westwards in the aforementioned lane branching off that side and probably for that purpose the driver swerved it too fair to east with a view to turn to west after a few paces. This is a total misconception for the uniform evidence is that the truck had come straight down the road from northside. Therefore, this part of the Sessions Judge's reasoning must be totally rejected. 4. THERE was a prayer to remand the case for rehearing of the appeal in view of this flaw in the appellate judgment. I do not consider this course advisable when it is already over five years since the occurrence it is a simple case and the evidence can be scrutinised in this court. The position is clear that the witnesses uniform testimony coupled with the absence of the defence evidence or circumstantial material discredits the defence version altogether and it must be taken that the truck ran over the sitting phar merchants. The only question is whether the driver can be said to have been rash and negligent. The position is clear that the witnesses uniform testimony coupled with the absence of the defence evidence or circumstantial material discredits the defence version altogether and it must be taken that the truck ran over the sitting phar merchants. The only question is whether the driver can be said to have been rash and negligent. The learned counsel for the appellant pointed out that according to the admission of D. W. 1 Devi Dayal at one place the phar was on the Kharanja. This however, cannot be accepted as correct. Even P. W. 1 immediately thereafter as well as all the other witnesses uniformly stated that the phar was on the outer- edge of the kharanja and beyond it. The Investigating Officer's evidence is clear that the phar adjoined the kharanja but was outside it. Therefore, it cannot be taken that the victims suffered on account of their being on the road. 5. THE main contentions of the learned counsel for the revisionist were two. In the first place he pointed out that this is a very crowded area. THE investigating officer has also admitted that towards the evening the road is crowded there being bullockcarts, Buggies and all kinds of vehicles as well as pedestrians on the road. In this situation the learned counsel 'Contends that it was impossible to drive fast. This may be accepted because the uniform evidence is that the truck stopped within a few feet of the impact. But at the same time we cannot take it that it was too slow for we have the evidence of P. W. 6 the roadways foreman that on a slow speed the driver can control the vehicle even by gears and the defective brakes would be immaterial. THE time was 4.30 p. m. Area was crowded. THE victims were on a phar at the edge of the road which howsoever undesirable is a fact of life to be reckoned with in our crowded Bazars especially in small towns. THE driver therefore, either was too Just to be able to stop or did not bother to stop in time. THE victims were on a phar at the edge of the road which howsoever undesirable is a fact of life to be reckoned with in our crowded Bazars especially in small towns. THE driver therefore, either was too Just to be able to stop or did not bother to stop in time. THE fact that the truck over ran the phar beyond the edge of kharanja makes in the absence of other cogent explanation the rashness and negligence of the driver self evidence, la that case whether he was too fast or too careless inspite of slow speed to be able to stop in time he must be held to be rash and negligent. THE crowded nature of the street and the consequent necessary slow speed, therefore, cannot exonerate him. 6. IT was then urged by the learned counsel that it is possible that the brakes which were later found defective failed just before this impact and the accident was a result of a sudden brake failure and not any negligence of the driver. This is a purely speculative hypothesis and if this was the factor causing the accident and not the neglience and rashness of the driver it should have come from the driver. He never gave this explanation. I am, therefore, in agreement with the learned Sessions Judge in rejecting this theory for exonerating the revisionist. IT will be incorrect to go by such speculative possibilities to exclude accused's liability in the case of an offence so hazardous to the community. The value of circumstantial evidence and the need to keep the actual road occurrence rather than ingenious but hypothetical defences built during argument without any foundation in the driver's own statement or evidence is also brought out by the following observations of the Supreme Court in Rattan Singh v. State of Punjab, AIR 1980 SC 84 :- ".......This, however, does not excuse the accused from his rash driving of a 'blind Leviathan in berserk locomotion.' If we may adapt the words of Lord Greene M . R.: IT scarcely lies in the mouth of the truck driver who plays with fire to complaint of burnt fingers. Rashness and negligence are relative concepts, not absolute abstractions. R.: IT scarcely lies in the mouth of the truck driver who plays with fire to complaint of burnt fingers. Rashness and negligence are relative concepts, not absolute abstractions. In our current conditions, the law under Sec. 304-A IPO and under the (sic) of negligence, [must have due regard to the fatal frequency of rash driving of heavy duty vehicles and of speeding meniacs. Thus viewed, it is fair to apply the rule of res ipsa loquitor of course, with care. Conventional defences, except under compelling evidence, must break down before the pragmatic Court and must be given short shrift." With great respect I do not think there is sufficient basis in evidence to conceive of a reasonable hypothesis for the revisionists lack of guilt. The conviction must, therefore stand. Coming to the question of sentence it has been emphasised that the matter is five years old, that the revisionist has already undergone ten days imprisonment before being bailed out by this Court and that he has been awarded a decree for Rs. 15400/-compensation by the Tribunal per its order dated 31-8-78. In view of these circumstances it was prayed that the revisionist may not be sent back to jail, and the remaining part of the sentence may be converted into one of fine. Weighing the press and cons I do not think this is a case in which this course should be adopted. I think considering the nature of the offence the jail sentence must be suffered by the accused. However, I would reduce the term of imprisonment to a period of six months. 7. THE revision is partly allowed. THE conviction of the revisionist is confirmed but the sentence is reduced to a period of three months, three months and six months on the three counts under Sections 279, 337 and 304 (A) IPO. All the sentences shall run concurrently. THE revisionist is on bail in pursuance of this Court's order dated 9-11-79 and shall be got arrested immediately to serve out the sentences according to law. Revision partly allowed.