Judgment : 1. Heard both the parties. 2. The above revision is directed against the order of conviction dated 20.9.1994 made in C.A.No.76 of 1994 on the file of the District Sessions Judge, Tirunelveli, imposing a fine of Rs.2,500 while confirming the order of conviction of the learned Judicial Magistrate, Cheranmahadevi, in C.C.No.17 of 1993, wherein, sentence of six months rigorous imprisonment with a fine of Rs.500 in default of which, further rigorous imprisonment for two months were imposed for an offence punishable under Sec.304-A, I.P.C. 3. The petitioner and one Shanmugaiah were facing the trial for an offence punishable under Sec.304-A, I.P.C. in connection with an occurrence said to have taken place at 6.15 p.m. On 14.9.1992 in Veeravanallur bus stand when a bus K.T.C. T.M.L. 1401 was said to have been driven in a rash and negligent manner by the petitioner herein. The other accused, namely, Shanmugaiah, was the conductor of the said bus. On account of rash and negligent driving of the bus by the said accused, the bus met with an accident at 6.15 p.m. on 14.9.1992 causing the death of a girl of six years of age, namely Rejina Mary. 4. Seventeen witnesses were examined as P.Ws.1 to P.W.17 and eleven documents were marked as Exs.P-1 to Ex.P-11 on behalf of the prosecution. 5. After considering the evidence of P.Ws.1 to P.W.17 and Ex.P-1 to P-l 1 and particularly the evidence of eye witnesses, namely, P.W.1 P.W.2 and P.W.4, the trial court convicted the accused for an offence under Sec.304-A with a sentence of six months rigorous imprisonment by order dated 20.5.1994 in C.C.No.17 of 1993, aggrieved by which, the petitioners preferred an appeal before the learned District Sessions Judge at Tirunelveli in C.A.No.76 of 1994. 6. The learned District Sessions Judge, Tirunelveli, by his order dated 20.9.1994 in C.A.No.76 of 1994, confirmed the conviction, but however, modified the sentence from six months rigorous imprisonment to a fine of Rs.2,500 aggrieved by which, the petitioner, who is the first accused in the said C.C.No. 17 of 1993 and the first appellant in C.A.No.76 of 1994, has preferred the above revision. 7. The revision petitioner challenges the order of the Sessions Judge dated 20.9.1994 on the following grounds: (i) that the prosecution failed to prove the case beyond all reasonable doubts. 7. The revision petitioner challenges the order of the Sessions Judge dated 20.9.1994 on the following grounds: (i) that the prosecution failed to prove the case beyond all reasonable doubts. (ii) the petitioner has taken the bus only after the conductor gave a signal by his blow of whistle, and therefore, the petitioner, being a driver, cannot be said to have committed an act of rash and negligent driving, and in any event, the petitioner, being driver sitting in the front, is not expected to know whether the passengers had got in or not. Therefore, the learned counsel for the petitioner contends that once the conductor had given whistle and signals for taking the bus, any accident in consequent to such take up of the vehicle cannot be said to be a rash and negligent act committed by the driver, namely, the revision petitioner. 8. Per contra, the learned Government Advocate invited my attention to the evidence of P.W. 1, P.W.2 and P.W.4 who categorically state that even though the accident has taken place at the time the girl climbed into the bus when the Conductor, admittedly, has signalled for taking the vehicle by giving whistle, the bus driver is also expected to take care before starting the bus by looking through the rear mirror whether all the passengers had boarded the bus. 9. I have given a careful consideration to the submissions of both sides. 10. Even according to the prosecution, the bus conductor gave whistle for taking the vehicle for the first time, and again for the second time, and then only the driver took the bus, and therefore, the first appellate court has rightly observed that the conductor, namely, the other accused Shanmugaiah, was negligent in discharging his public duty to see whether the passengers have got down and got in, and should have given the whistle subsequently. But it is clear from the evidence that the conductor gave whistle two times when the passengers are entering, particularly, when the deceased girl Rejina Mary was entering into the bus. 11. Under such facts and circumstances, the driver, who is conscious about the rush getting into the bus, should have applied his mind and taken the bus slowly. But the evidence shows that the driver, even without confirming whether the passengers have got into the bus or not, started the bus merely because the conductor has given whistle. 11. Under such facts and circumstances, the driver, who is conscious about the rush getting into the bus, should have applied his mind and taken the bus slowly. But the evidence shows that the driver, even without confirming whether the passengers have got into the bus or not, started the bus merely because the conductor has given whistle. It is for this reason, the court below confirmed the conviction, but modified the sentence as stated above. 12. In my opinion, even though there appears to be a little lapse on the part of the petitioner herein, and had the petitioner been little more careful or conscious about what was happening around, he could have avoided the said accident, but such an act of the petitioner does not amount to a rash act, but certainly amounts to negligence. Therefore, while confirming the conviction, I do not see any reason to interfere with the orders of the courts below in so far as the conviction is concerned, but, in my opinion, a fine of Rs.2,500 is excessive. Hence the same is reduced to Rs.1,000. 13. That apart, I am also satisfied that the decision reported in Gopalan, IN RE. Gopalan, IN RE., 1986 L. W. (Crl.) 58, which is squarely applicable to the facts and circumstances of the case, wherein, it is held as follows: “The totality of the evidence shows that the occurrence was on the left side of the road, and that too, on the mud portion. At the particular point of the scene of occurrence the tarred road is of width of 10 feet. It is not the case of the defence that there was any traffic obstruction necessitating the petitioner to swerve the bus to the left side to overcome any obstruction. At the particular point of the scene of occurrence the tarred road is of width of 10 feet. It is not the case of the defence that there was any traffic obstruction necessitating the petitioner to swerve the bus to the left side to overcome any obstruction. Therefore, we have to hold that the driver, instead of driving the vehicle on the tarred portion of the road, has negligently driven the vehicle and dashed against the cyclist, who was proceeding on the mud portion of the road, keeping to his left side.” “…There is no manifest illegality, in the judgments of the courts below compelling this Court to dislodge the concurrent findings of facts.” “Coming to the question of sentence, Mr.N.T.Vanamamalai would submit that the petitioner, who is a driver in Kattabomman Transport Corporation, would lost his job even if a fine of Re.l is imposed on him and that if a sentence of fine is imposed, the petitioner who is not at all involved so far in any case, would lose his job resulting in irreparable hardship to his family. Making the above submission, he would plead that this court may be pleased to invoke the benevolent provisions of the Probation of Offenders Act. Having regard to the above submission made by the learned counsel for the petitioner, while confirming the conviction, I set aside the sentence of fine imposed on the petitioner, and instead, invoking the provisions of Sec.4(l) of the Probation of Offenders Act, I direct the petitioner to be released on probation of good conduct, on his entering into a bond for a sum of Rs.1,000 with one surety to appear and receive sentence when called upon during a period of six months, and in the meantime to keep the peace and be of good behaviour. In this connection, I would like to make it clear that as contemplated under Sec. 12 of the Probation of Offenders Act, the petitioner shall not suffer disqualification, if any, attaching to this conviction. Subject to the above modification, the appeal is dismissed. The fine amount if already collected will be refunded to the petitioner.” 14. Following the said decision, while confirming the order of conviction dated 20.9.1994, I am inclined to reduce the fine amount from Rs.2,500 to Rs.1,000. Subject to the above modification, the appeal is dismissed. The fine amount if already collected will be refunded to the petitioner.” 14. Following the said decision, while confirming the order of conviction dated 20.9.1994, I am inclined to reduce the fine amount from Rs.2,500 to Rs.1,000. However, as I am satisfied that the case of the petitioner also falls on the same facts of the case mentioned above, by applying the principles laid down reported in Gopalan, IN RE. Gopalan, IN RE., 1986 L. W. (Crl) 58, I set aside the sentence imposed on the petitioner to invoke the provision of Sec.4(1) of the Probation of Offenders Act and I direct the petitioner to be released on probation of good conduct on his entering into a bond for a sum of Rs.1,000 with one surety to appear and receive sentence when called upon during a period of six months, and, in the meantime, to keep the peace and be of good behaviour. In this connection, I also make it clear that as contemplated under Sec.12 of the Probation of Offenders Act, the petitioner shall not suffer disqualification, if any, attaching to this conviction. 15. In the result, the above criminal revision petition is dismissed with the above modification.