JUDGMENT S. Padmanabhan, J. 1. Respondent was convicted by the Magistrate for offences punishable under S.279 and 337 I. P. C, but sentenced only under S.279 with fine of Rs. 500/-. In appeal the Chief Judicial Magistrate reversed the conviction and acquitted the respondent. State has come up in appeal. 2. Respondent was the driver of K. S. R. T. C. bus K. L. X. 3267 which went on a trial run after repairs in the workshop on 26-6-1985 at 3 PM from north to south through the road in front of the St. Theresa's College at Ernakulam. The case of the prosecution is that he drove the bus in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to pedestrians and vehicular traffic and. caused it to hit against PW. 7 who was walking in the same direction through the western side of the road and knocked him down causing injuries to him. The bus also hit against a tree causing injuries to PWs. 1, 2 and 8 who were travelling in the bus. These consequences are said to be the result of the rashness and negligence with which the respondent overtook a bus parked on the eastern side for alighting passengers overlooking a car coming from the opposite direction and pedestrians on the road. The defence was that the accident was beyond his control on account of brake failure. 3. PWs. 1, 2, 4, 7 and 8 are the occurrence witnesses and PW. 3 is the A.M.V.I who inspected the bus and gave Ext. P1 report. PW. 7 is the pedestrian who was knocked down and PWs 1, 2 and 8 are the colleagues and subordinates of the respondent who were 'travelling in the bus and were injured, PW. 4 is a Police Constable who was on duty at the accident spot. 4. The version given by the respondent when questioned under S.313 is that a private bus was parked for alighting passengers and cars were coming from both directions. There was a big crowd of pedestrians also in the road. On seeing this sight he applied brake, but the brake J pedal completely went down. Seeing no other go, he swerved the bus and caused it to stop by hitting against a tree. 5. PWs. 1 and 2 turned hostile. There was a big crowd of pedestrians also in the road. On seeing this sight he applied brake, but the brake J pedal completely went down. Seeing no other go, he swerved the bus and caused it to stop by hitting against a tree. 5. PWs. 1 and 2 turned hostile. Even though brake failure was not mentioned by them when questioned during investigation, they supported the respondent in that respect also in the box. They pleaded ignorance of the bus knocking down PW. 7 even though that was the first tragedy which happened and he was also admitted in the hospital along with PWs. 1 and 2. These two witnesses had no basis to say that there was brake failure. Anyhow from the evidence of PW. 1 it is seen that the respondent in fact overtook the parking bus and swerved the bus to avoid collusion 2 with the car coming from the opposite side at a time when on account of the parking of the bus there was only hardly space for one vehicle to go. According to PW. 1 this fact and the brake failure were the reasons which caused the bus to be swerved to the west and it hit against a tree. PW. 2 did not admit the fact of a car coming from the opposite direction. Anyhow he also admitted the parking of a bus on the eastern side near the scene and the respondent suddenly swerving the bus to the west. This could only be in the process of overtaking the parked bus. 6. PW. 8 categorically admitted that the respondent overtook 0 a parked bus in the bus stop at a time when a car was coming from the opposite direction and at once the respondent suddenly swerved the bus to the west. This overtaking was not only when a car was coming from the opposite direction, but also when as admitted by PWs. 1 and 2 there was only hardly space for a vehicle to pass and a crowd of pedestrians were on the road. It was in this attempt that the bus knocked down PW. 7 and then hit against a tree. Anyhow, not only PWs. 1 and 2, but PW. 8 also refused to admit that PW. 7 was knocked down or injured. Even though PWs. 1 and 2 turned hostile and PWs. It was in this attempt that the bus knocked down PW. 7 and then hit against a tree. Anyhow, not only PWs. 1 and 2, but PW. 8 also refused to admit that PW. 7 was knocked down or injured. Even though PWs. 1 and 2 turned hostile and PWs. 1, 2 and 8 attempted to help the respondent on account of their interest in him (PWs 1 and 2 are subordinates and PW. 8 is a colleague and superior officer of the respondent) and attempted to hide facts and bring about a brake failure, the circumstances under which the incident happened is clear from their evidence. 7. All these three witnesses admitted that the bus was on trial run after complete repair in the workshop. It does not require proof that a trial run taken after repairs is only to ascertain whether the repair was efficient and complete and the vehicle is road worthy. PW. 8 has only hearsay information that the brake failed. His cross examination shows that he is one who participated in the repair work. Therefore he is competent to say what all repair works were made. He categorically said that the bus was taken for trial run after the entire repair works including repair works of the brake were completely over. PWs. 1, 2 and 8 admitted that respondent was the chargeman and PW. 8 said that it was taken for trial run because only when the respondent as chargeman certifies after the trial run that the vehicle will be given for service in the road. 8. DW. 1 was examined and Exts. D1, D1 (a) and D2 were produced. Ext. D1 is the work register for the bus after the accident and Ext. D1(a) is an entry therein showing that on 10-7-1985 (the incident was on 26-6-1985) a motor cylinder was fitted and brake fluid supplied. Ext. D2 is the issue notice for having issued the motor cylinder from the store. These items of evidence were tendered to show that the brake was not efficient. But DW. 1 admitted that he did not examine the vehicle even though he at first said he did so. He cannot do so is clear. He also admitted that the entries in Ext. D1 were not by him but by one Antony (Mechanic) who is still in service and he alone knows what was done to the bus. But DW. 1 admitted that he did not examine the vehicle even though he at first said he did so. He cannot do so is clear. He also admitted that the entries in Ext. D1 were not by him but by one Antony (Mechanic) who is still in service and he alone knows what was done to the bus. When subsequently cross examined after Exts. D1, D1 (a) and D2 were marked through him after recalling and examining, he said that work register was written by one Chandran who is now working in Alwaye, that the part was taken by Nelson and Sreedharan who are still in service and that the work was done and vehicle examined by one Rajappan who is also still in service. None of them were examined. Ext. D1 or Ext. D1(a) are silent about the alleged failure of brake also even though the accident is mentioned therein. If actually the brake was found defective on the trial run, the evidence of PW. 8 shows that the respondent must have given a report on the basis of which alone further work including fitting of parts will be done. There is no case for the respondent that he gave such a report and no such report is produced. The production of these documents in such a situation cannot be accepted as proof of defective brake or supply of motor cylinder, or brake fluid. DW. 1 himself admitted that if one is inclined it is possible to drain the brake fluid to make it appear that brake failed. All these become relevant because there was no defect with the brake when PW. 3 A. M. V. I. inspected the vehicle. There is no case that brake was repaired before PW. 3 inspected. DW. 1 does not know how the vehicle thereafter reached the depot after the incident. It is possible for the employees in the K. S. R. T. C. to manipulate records by making entries in the work register and preparing an issue notice. By such a notice they are only to gain because the cylinder could be otherwise utilised by them Anyhow with the evidence of DW. 1 and the document proved by him it is not possible to disbelieve the evidence of PW. 3 that there was no brake failure He had no reason to give a false report if actually there was brake failure. 1 and the document proved by him it is not possible to disbelieve the evidence of PW. 3 that there was no brake failure He had no reason to give a false report if actually there was brake failure. DW. 1 was only giving evidence against his conscience to help the respondent. This is quite so in the light of the evidence of PW. 8 that the brake was fully repaired before the trial run and further "in the absence of any report from the respondent that brake was defective or it failed for any reason. If there was such a report by him, it would have found a place in Ext. D1 and only on the basis of such a report further repairs would have been made. It is not known why DW. 1 who had nothing to do with Exts. D1 and D2 was examined without examining the proper persons or producing the report of the chargeman after the trial run. 9. The evidence of PW. 4 clinches the issue. He said that respondent overtook the bus parked on the eastern side and it was then that it hit PW. 7 and then hit against a tree. Though he at first said that he does not know who is responsible, he then said that it was due to the negligence of the respondent that the incident happened. That fact is clear even without the witness saying so. PW. 7 said that he was walking through the western side and the bus came and hit him from the back. He does not know anything I else except that the incident was not due to any negligence on his part. In appears that the respondent paid him sufficiently and hence he was not interested in giving any incriminating evidence. 10. PW. 3 said that the foot brake system was efficient and there was no mechanical defect. It is true that in his chief examination all what is stated in Ext. P1 were not elicited. Regarding condition of the brake at the time of inspection with reference to R.270 of the Kerala Motor Vehicles Rules he stated in Ext. P1: "The unladen vehicle is driven at a speed of 24 KM/Hour on I a straight hard dry level road on top gear with clutch engaged. On application of foot brake the Vehicle stops at a stopping distance of 5.00 metres. P1: "The unladen vehicle is driven at a speed of 24 KM/Hour on I a straight hard dry level road on top gear with clutch engaged. On application of foot brake the Vehicle stops at a stopping distance of 5.00 metres. Hence foot brake is found to be efficient" Regarding cause of failure of foot brake in Column 11(a) against "If Hydraulic" items 1 to 3 (want of fluid, leakage in system, worn out parts, any other reason) he" has recorded "No failure of foot brake". Regarding item (b) of Clause.11 as to cause of failure of foot brake, if mechanical, he has written, "not applicable". In Column 12 regarding cause of failure of handbrake against the four items he wrote "Disconnected" In cross he said he did not specifically note in Ext. P1 regarding the type of brake but said it is hydraulic brake. This is all what is elicited in cross. 11. I recorded all these facts only because I was really worried in the manner in which a good reasoned judgment of the trial Magistrate was reversed by a shabby judgment written by the Chief Judicial Magistrate and that too with unjustified attacks against the trial Magistrate and PW. 3 and unmerited encomium to the respondent About PW. 3 the Chief Judicial Magistrate said: "Therefore his opinion about the so called efficiency has no locus standi Such a manipulated or inflated opinion is unbecoming of an A.M.V.I So, I am of opinion that the report of the A.M.V.I is based on guess work or on surmises: and not on realities. So, his report is not a fact finding media" The reasons alleged by the Chief Judicial Magistrate for disbelieving PW. 3 are : (1) "He conceded that he did not check whether the brake was hydraulic or not" This finding is a judicial dishonesty by the Chief Judicial Magistrate. Against " if hydraulic" he has written "no failure of foot brake". What he admitted was only that he did not specifically note in Ext. P1 the type of brake The last sentence said by him in cross examination was that this vehicle is having hydraulic brake When against the printed column "If hydraulic brake" he gave his opinion, it is not necessary to specifically state that the brake is hydraulic. It is understood. Further his answer elucidated the matter clearly. P1 the type of brake The last sentence said by him in cross examination was that this vehicle is having hydraulic brake When against the printed column "If hydraulic brake" he gave his opinion, it is not necessary to specifically state that the brake is hydraulic. It is understood. Further his answer elucidated the matter clearly. Then how can the Chief Judicial Magistrate say that he conceded that he did not check whether brake is hydraulic or not. Judicial officers cannot ignore facts on record in arriving at conclusions. (2) '' In questionnaire 11 (a) cause of failure of foot brake (a) if hydraulic, he did not answer Likewise, query 11(b) if mechanical, he answered "not applicable". But he deposed in chief that "foot brake system was efficient and no mechanical defects". This is quite unreasonable". I fail to understand how. The stand taken by the Chief Judicial Magistrate that he did not answer 11 (a) again is a judicial dishonesty. He has specifically written "No failure of foot brake". This is what he said in the box, "foot brake system was efficient". He also said on the box that brake is hydraulic. This answer he has given with details as answer to Column 10 in Ext. 21 and I have extracted it. What has that to do with his answer to Column 11 (b) that cause of foot brake if mechanical is not applicable. I fail to understand what is unreasonable and the Chief Judicial Magistrate has not clarified. (3) The A.M.V.I was silent on questions 11 (a) and (b) in Ext P1. He is not silent. He has given definite answers in Ext. P1 and in the box. If the Chief Judicial Magistrate wanted to discard Ext. P1 and the evidence of PW. 3 she could have done so for genuine reasons if available. But this sort of approach is not befitting of a judicial officer. The Chief Judicial Magistrate seems to have decided to disbelieve PW. 3 in order to find that there was brake failure for acquitting the accused and then she was attempting to find out reasons for that. Regarding the Magistrate, the Chief Judicial Magistrate said: "But what provoked the learned Magistrate to find the accused/appellant guilty is nothing but a personal vendetta". 3 in order to find that there was brake failure for acquitting the accused and then she was attempting to find out reasons for that. Regarding the Magistrate, the Chief Judicial Magistrate said: "But what provoked the learned Magistrate to find the accused/appellant guilty is nothing but a personal vendetta". The respondent had no such case anywhere and his counsel was also not able to support this opinion to any extent from any materials on record or otherwise. I have gone through the entire length and breadth of the oral and documentary evidence to find out whether there is any justification at all for this comment which, if allowed to stand, is having serious impact on the official and personal life of the trial Magistrate just like the comments against PW. 3. I was not able to find any. The Chief Judicial Magistrate is a senior Judicial officer who must be aware of the necessity to maintain sobriety, moderation and reserve in judicial pronouncements. Judicial experience and wisdom ought to have informed her that adverse comments touching anybody, whether an individual or not, in a judicial pronouncement could only be when it is absolutely necessary for the disposal of the case and that too only to the barest minimum possible and couched in moderate language. That is all the more so when the person against whom the adverse comment is made did not have an opportunity of defending himself. If anybody goes under the impression that the Chief Judicial Magistrate passed these uncharitable, unnecessary and unjustified comments on account of personal motivations coupled with a desire to acquit the accused it may not be possible to blame them. Judicial pronouncements cannot be used as the media for giving vent to extraneous feelings or wreak personal vengeance. The inference of personal vendetta for the Magistrate to the accused, even if has to be drawn necessarily for the decision of the case, must be on the basis of sound materials and it cannot come to the appellate court as an inspiration just like a bolt from she blue. The comments against the Magistrate were not only absolutely unwarranted and unjustified, but unnecessary also. In fact he has written a sabre, well considered judgment and he was showing sympathy alone to the accused, in the matter of sentence. In view of the admission of PW. The comments against the Magistrate were not only absolutely unwarranted and unjustified, but unnecessary also. In fact he has written a sabre, well considered judgment and he was showing sympathy alone to the accused, in the matter of sentence. In view of the admission of PW. 7 that the accused gave him amounts and further on account of the delayed trial the Magistrate awarded only a fine of Rs. 500/-. 12. Placing the blame on PW. 7 for having walked through the road when there are foot paths on either side, the Chief Judicial Magistrate also made an attempt to give an unmerited encomium to the accused. She forgot the fact that PW. 7 was walking only through the western extremity of the road which is usual for pedestrians and it is the duty of the drivers to avoid accidents to them also and not to knock them down for the mere 'sin' of entering the road. The Chief Judicial Magistrate seems to be ignorant of the ingredients of S.279 and the proof required when she said "none of the ingredients of S.279 is attracted" and "no independent occurrence witness has stated that the accused was either rash or negligent". It is not the speed alone that makes the driving rash or negligent. An automobile is meant to be driven in speed. Depending upon the place speed by itself may not be rashness or negligence sometimes. But even without speed, driving can be rash or negligent as to endanger human life or health. The real test for rash and negligent driving as pointed out by the Magistrate is whether the accident could have been avoided by the accused if he had exercised that care and diligence which ordinarily cautious persons using the road in similar circumstances would have done. Not only the prosecution witnesses said, but the case of the accused is also that there was a parked bus on one side which allowed only hard space for vehicle to pass. Atleast one car was coming from the opposite direction and a crowd of pedestrians were on the road. In such a situation, a cautious and prudent driver ought to have stopped the vehicle to allow the car to pass and then overtake. It was his overtaking without this caution that caused the necessity of suddenly swerving the vehicle and hitting against the pedestrian and the tree. In such a situation, a cautious and prudent driver ought to have stopped the vehicle to allow the car to pass and then overtake. It was his overtaking without this caution that caused the necessity of suddenly swerving the vehicle and hitting against the pedestrian and the tree. There was no mechanical defect or brake failure. Rashness and negligence are established by the evidence on record. For that, in such a situation, proof of high speed is not necessary. What is on record is sufficient to prove ingredients of S.279 and 337. 13. The Chief Judicial Magistrate is of opinion that it is an inevitable incident in spite of the prudence and caution shown by the accused. She also went under the impression without any acceptable material that the hitting against the tree was a purposeful act of the accused to stop the bus when the brake failed in order to avert a collision and further danger. That is why the Chief Judicial Magistrate said: "The driver/accused swerved the bus to a safety place towards west; and in that bold action, no precious life is lost nor any other vehicle sustained damages. The driver who is a well experienced mechanic. That is why he could locate the defect over the brake system. He rose to the occasion; and found out immediate remedy to avoid disastrous calamity. His prudence and farsightedness averted a greated havoc. It may be remembered the place of occurrence is in front of the famous and renowned St. Theresa's Convent, where a large chunk of students are studying; and students were coming out as a pool. But the bravery and balance of mind of the accused saved unpredictable human lives with the timely swerving of the bus towards west where a tree alone was standing. So, one cannot find fault with the accused". The Chief Judicial Magistrate did not stop with that. She went on to say: "On the trial run itself the accused/mechanic realised that the brake system went off. He has no other alternative but to stop the vehicle without any havoc. His presence of mind and sub conscience murmured him to stop the vehicle without propelling any further. He chose to stop the vehicle by hitting on a harmless media". 14. He has no other alternative but to stop the vehicle without any havoc. His presence of mind and sub conscience murmured him to stop the vehicle without propelling any further. He chose to stop the vehicle by hitting on a harmless media". 14. Imagination of the Chief Judicial Magistrate was running riot probably for the sole purpose of impeaching the poor Magistrate and the A. M. V. I. and garlanding the accused, forgetting the fact that except her imagination, even the hostile witnesses who were bent upon helping the accused or even the 313 statement of the accused did not support her fully. The rashness of the accused which caused the bus to hit against PW. 7 and then hit the tree on the side made him a hero who saved many human lives at the hands or the Chief Judicial Magistrate. He was showered with many compliments which he himself might not have ever thought of. Various items of experience, anticipation, prudence and bravery were showered on him on the basis of information from sources unknown, I can only sympathise with the Chief Judicial Magistrate for having written all these. In my opinion, the brake failure and the calculated attempt to stop the bus are only unjustified inferences. 15. In disagreement with the Chief Judicial Magistrate and in agreement, with the trial magistrate, I find that the evidence and circumstances proved by the prosecution unmistakably established commission of the offences punishable under S.279 and 337 IPC by the respondent. Though I feel that the sentence awarded by the Magistrate is quite insufficient and disproportionate to the offence, I am not inclined to interfere not only because of the reasons given by the Magistrate and the time lag, but also on account of the fact that the sentence was not challenged by the State in appeal. The Criminal Appeal is allowed and the acquittal is set aside restoring the conviction and sentence passed by the trial Magistrate, who will see that steps are taken to execute the sentence.