JUDGMENT - SAHAI VISHNU, J.:---Two persons viz. Vasant Khanderao Bade and Mehmud Mohammed Chabukswar were tried for offence punishable under section 304, Part II read with sections 34, 279 read with sections 34, 337 read with section 34, Indian Penal Code, section 89 read with section 112 and section 116 of the Motor Vehicles Act, by the IVth Additional Sessions Judge, Thane, in Sessions Case No. 323 of 1982. Vide judgment and order dated 21-9-1984, the learned Judge, acquitted Vasant Khanderao Bade, but convicted and sentenced Mehmud Mohammed Chabukswar in the manner stated hereinafter : (i) Under section 304-A, Indian Penal Code to R.I. for 2 years and to pay a fine of Rs. 50/- in default to undergo 7 days R.I. (ii) Under section 279, I.P.C. to 6 months R.I. and to pay a fine of Rs. 50/- in default to undergo 7 days R.I. The substantive sentences were directed to run concurrently. Criminal Appeal No. 892 of 1984 has been filed by Mehmud Mohammed Chabukswar against his aforesaid convictions and sentences. Criminal Appeal No. 513 of 1985 has been preferred by the State of Maharashtra against the acquittal of Vasant Khanderao Bade for the offences, referred to above. 2. In short the prosecution case runs as under: Appellant Mehmud Mohammed Chabukswar and acquitted accused Vasant Khanderao Bade were working as driver and conductor respectively in Maharashtra Road Transport Corporation, On 4-8-1980. At about 6.45 a.m. that day, they took a bus from Dahanu to Bordi. The said bus was being driven by the appellant and acquitted accused was its conductor. At about 9.45 a.m. it reached Gholwad where constable Eknath Choudhari P.W. 1 and Head Constable M.K. Gaikwad, along with accused Ramu Raza Khurada boarded it. There were about 10 to 12 passengers in the bus. The bus used to stop on every bus stop and some passengers used to alight from it and some board it. At about 10.30 a.m. it came near Kankradi Nala Bridge. At that time there were 30 passengers in it. Appellant Mehmud Mohammed Chabukswar who was driving the bus stopped the same. At that time flood water was passing over the bridge and the danger signs on the bridge were under water. There was water up to the level of five feet over the bridge. At that time there were 30 passengers in it. Appellant Mehmud Mohammed Chabukswar who was driving the bus stopped the same. At that time flood water was passing over the bridge and the danger signs on the bridge were under water. There was water up to the level of five feet over the bridge. One Irani (not examined) came on a motor cycle from Masoli side and told the appellant not to take the bus from the bridge as there was lot of water over the bridge. He further told him that the passengers sitting in the bus be advised to proceed via the railway bridge. The appellant did not listen to the advice of Irani, started the bus and took turn towards the bridge. Thereafter the acquitted accused Vasant Khanderao Bade rang the bell twice which was a signal to start the bus. The bus came under water near the bridge. At that time the road was not visible. Consequently, Eknath Ghoudhari along with the accused Ramu Raza Khurada opened the exit door of the bus, jumped inside the water and came on the road. The bus went ahead for about 5 to 10 feet and thereafter fell in the Nala on account of the impact of the flood water. The passengers, excepting five, who came out from the emergency door of the bus also fell down in the Nala. Twenty three of them died. 3. The F.I.R. of the incident was lodged by Dattatraya Ramkrishna Rao, P.W. 7, Deputy Superintendent of Police, some times after 11 a.m., the same day at Dahanu Police Station. 4. The investigation was conducted in usual manner by Dattatraya Ramkrishna Rao, P.W. 7, and after completing it he charge-sheeted the appellant and the acquitted accused. 5. The case was committed to the Court of Sessions in due course. In the trial Court the appellant and acquitted accused were tried for offences mentioned in para 1. They pleaded not guilty and claimed to be tried. During trial, the prosecution examined 7 witnesses; four of them viz. Eknath Chaudhari, Ashok Apte, Khanderao Raut and Gulab Nayak, P.Ws. 1 to 4 respectively, were examined as eye-witnesses. In defence no witness was examined. The learned trial Judge believed the prosecution evidence vis-a-vis the appellant, convicted and sentenced him in the manner stated in para 1. During trial, the prosecution examined 7 witnesses; four of them viz. Eknath Chaudhari, Ashok Apte, Khanderao Raut and Gulab Nayak, P.Ws. 1 to 4 respectively, were examined as eye-witnesses. In defence no witness was examined. The learned trial Judge believed the prosecution evidence vis-a-vis the appellant, convicted and sentenced him in the manner stated in para 1. He however, acquitted Vasant Khanderao Bade, for the reasons mentioned in para 9 of the judgment. As mentioned earlier Criminal Appeal No. 892 of 1984 has been preferred by the appellant against his convictions and sentences and Criminal Appeal No. 513 of 1985 has been preferred by the State against acquittal of Vasant Khanderao Bade. Since both these matters arise out of the same set of facts and a common judgment we are disposing them off together. 6. We have heard Mr. S.G. Samant for the appellant and Mr. S.R. Borulkar, A.P.P., for the respondent in Criminal Appeal No. 892 of 1984 and Mr. S.R. Borulkar for the appellant in Criminal Appeal No. 513 of 1985. In the said appeal although Mr. Y.H. Memon has put in appearance for the respondent, he was absent. We have also perused the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution, the statement of the appellant and acquitted accused Vasant Khanderao Bade, recorded under section 313, Criminal Procedure Code; and the impugned judgment. After reflecting over the matter we are of the judgment that both these appeals deserve to be dismissed. 7. At the very outset it should be borne in mind that although the Criminal Procedure Code makes no distinction between the powers of the Appellate Court in an appeal against conviction from those in an appeal against acquittal but the case law which has crystallized as a result of catena of decisions of the Apex Court is that interference in an appeal against acquittal is to be only made if either the findings on facts are grossly unreasonable or the order of acquittal is manifestly illegal resulting in failure of justice. The Apex Court, times out of number, has held that in an appeal against acquittal if the view taken by the trial Court is a view which can be categorized as a possible view then the mere circumstance that had the Appellate Court been the trial Court, it would have taken a different view would be no reason to reverse the order of acquittal. We have no reservations in observing that we have borne in mind the said norms in arriving at our judgment. 8. After hearing Mr. S.G. Samant, learned Counsel for the appellant, Mr. S.R. Borulkar learned Counsel for the respondent, perusing the entire material on record, including the evidence of the prosecution witnesses, we are implicitly satisfied that the prosecution has established that on account of the rash and negligent manner in which the appellant was driving the bus 23 human lives were lost. We would like to refer to the evidence on the basis of which we have reached the said conclusion. The most important evidence is that of Police Constable Eknath Chaudhari P.W. 1. His statement in short, runs as under:- On the date of the incident at about 9.45 a.m. along with Head Constable M.K. Gaikwad and accused Ramu Raza Khurda, he boarded the bus which was being driven by the appellant and the conductor of which was Vasant Khanderao Bade. At about 10.30 a.m., the bus reached near Kankradi Nala bridge and stopped there. At that time there were 30 passengers in it. The appellant stopped the bus. Water from the floods was passing over the bridge. All the danger signs on the bridge were under water. There was water up to the level of five feet over the bridge. One Irani came on a motor cycle from Masoli side and told the appellant not to take the bus from the bridge as there was a lot of water over the bridge and advised him to tell the passengers sitting in the bus to proceed via the railway bridge. The appellant did not listen to the advice of Irani, started the bus and took it towards the bridge. Thereafter the acquitted accused Vasant Khanderao Bade rang the bell twice (a signal to start the bus). The appellant did not listen to the advice of Irani, started the bus and took it towards the bridge. Thereafter the acquitted accused Vasant Khanderao Bade rang the bell twice (a signal to start the bus). The bus came under water near the bridge and as the road was not visible on account of the water coming over the bridge he along with the accused Ramu Rarza Khurada gave a kick to the exit door and jumped inside the water and came on the road. Thereafter the bus went ahead to a distance of about 5 to 10 feet and fell in the Nala on account of the impact of flood water. Only five passengers who had fallen in the Nala could be rescued. Twenty three of them, died. 9. The statement of Eknath Choudhari P.W. 1 is corroborated by that of Ashok Ananta Apte, Khanderao Raut and Gulab Medha P.Ws. 2, 3 and 4 respectively. The said persons were travelling in the bus at the time of the incident. All of them stated that water with force was flowing over the Kankrardi Nala bridge. Ashok Apte also stated that the appellant drove the bus through the water and on account of the impact of the water the bus fell inside the Nala. Gulab Medha further stated that there was a lot of water on the bridge and a person came there and asked the appellant not to take the bus through the water. 10. We have considered the statements of all the four eye-witnesses. Even if the evidence of Gulab P.W. 4 is eliminated because in her statement under section 161, Criminal Procedure Code, she did not state that there was a lot of water over the bridge, a person came and asked the appellant not to take the bus through the water, there remains the clinching evidence of Eknath, Ashok and Khanderao Raut. It should be borne in mind that all these witnesses are independent witnesses, who had no malice against the appellant and the acquitted accused and in our view had not the prosecution allegations against them been true, for no rhyme or reason they would not have deposed against them. 11. It should be borne in mind that all these witnesses are independent witnesses, who had no malice against the appellant and the acquitted accused and in our view had not the prosecution allegations against them been true, for no rhyme or reason they would not have deposed against them. 11. We are implicitly satisfied that the evidence of the above 3 eye-witnesses clearly establishes the commission of offences punishable under sections 304-A, 279, Indian Penal Code and 116 of the Motor Vehicles Act, against the appellant. 12. Mr. Samant, learned Counsel for the appellant strenuously urged that this was a case of bona fide error of judgment on the part of the appellant and hence in view of the ratio laid down in the decision of the Apex Court reported in 1979 Cri.L.J. 1374, (Syad Akbar v. State of Karnataka)1, no offence under sections 304-A and 279, Indian Penal Code would be made out against the appellant. We regret that the said decision would have no application to the facts of this case. A perusal of para 33 of the said decision would show that the bona fide error of judgment of the driver which the Apex Court accepted was in view of the fact enumerated in the said para which reads thus :-- "33. The picture of the occurrence that can be gathered and as pieced together from the statement of the accused recorded under section 313, Criminal Procedure Code, and the testimony of the eye-witnesses, is that when the mother was about to cross the road, she firmly told the child, who was following her at some distance, not to follow her but to return home. The child it seems, stopped for a moment in the road, probably on its left side, while the mother went ahead, crossed the road and descended into the deep ditch on the other side from where according to her own admission, she could not see the bus approaching the scene of occurrence. The child was it seems, for the moment undecided as to whether it should go back or go forward after the mother, and then ran or was pointed to run towards the right of the road. It was just at this juncture the accused, who according to the passenger witnesses was driving the vehicle slowly, suddenly saw the child a short distance ahead of the bus, in the road. It was just at this juncture the accused, who according to the passenger witnesses was driving the vehicle slowly, suddenly saw the child a short distance ahead of the bus, in the road. In that situation, it was extremely difficult, even for a cautious and skilled driver in the position of the accused, to foresee and judge with accuracy as to whether the child would go back to the left or shoot forward to the right side of the road. In that split-second he had to decide about the better course to be adopted to avoid collision with the child. Whether it was better to swerve the vehicle to the extreme left or to the extreme right side of the road, that was the question for his instant decision. It was in evidence that the medalled road there was hardly 12 feet in width, and there were very deep ditches on both sides of road. Since the child was at that critical movement initially, in the road more towards the left-side, the accused might have thought that if he tried to run past the child from the extreme left, there was every risk of the bus rolling down into the ditch. He therefore, thought that the best way to avoid the ditches and to avoid the collision and forestall the move of the child would be to steer the vehicle to the extreme right side, and thus pass and dodge the child by a parabolic manoeuvre. But there was a limit to it. He could not, without incurring far greater risk of harm to many in the bus, take the vehicle off course further to the right, beyond the point he did. It was in evidence (vide P.W. 5) that there was a very deep ditch on the right of the road, close to the scene of the accident, and that if the bus had gone further towards that side, it would have met with disaster of a far bigger magnitude, resulting a death or injury to the passengers and damage to the vehicles. Unfortunately, his calculations went wrong and he failed in his attempt to avoid the accident." On these facts the Supreme Court observed thus in para 34. "34. It was thus evident that the accident happened due to an error of judgment, and not negligence or want of driving skill on the part of the accused. Unfortunately, his calculations went wrong and he failed in his attempt to avoid the accident." On these facts the Supreme Court observed thus in para 34. "34. It was thus evident that the accident happened due to an error of judgment, and not negligence or want of driving skill on the part of the accused. An error of judgment of the kind, such as the one in the instant case which comes to light only on post-accident reflection but could not be foreseen by the accused in that fragmented moment before the accident, is not a sure index of negligence, particularly, when in taking and executing that decision the accused was acting with the knowledge and in the belief that this was the best course to be adopted in the circumstances for everyone's safety." 13. In the instant case the evidence discloses that their was no bona fide error of judgment on the part of the appellant. It instead shows that his act was both grossly rash and negligent. The rashness and negligence is per se established from the following circumstances emerging from the evidence of the eye-witnesses :- (a) At about 10.30 a.m. on 4-8-1980 a bus driven by the appellant of which the conductor was Vasant Khanderao Bade came near Kankradi Nala and stopped as flood water was passing over the bridge. At that time, the danger signs were under water which was to the level of 5 feet over the bridge; (b) One Irani came on a motor cycle from Masoli side and told the appellant not to take the bus towards the bridge as there was a lot of water over the bridge; and (c) The appellant started the bus, of his own accord, and took it towards the bridge which was flooded with water from the floods. After he had taken the bus for about 5 to 10 feet it fell in the Nala on account of the impact of flood water resulting in 23 human lives being lost. Since the appellant was driving the bus in dangerous conditions as is per se evident from a perusal of (a) to (c) above, it can be safely held that 23 human lives were lost on account of the rashness and negligence of his act and not due to any bona fide error of judgment on his part. Since the appellant was driving the bus in dangerous conditions as is per se evident from a perusal of (a) to (c) above, it can be safely held that 23 human lives were lost on account of the rashness and negligence of his act and not due to any bona fide error of judgment on his part. 13-A. Our view is fortified by the yardstick laid down for determining criminal negligence in the decision of Straight, J., in (Empress of India v. Idu Beg)2, I.L.R. 1881(3) All. 776, cited by Mr. S.R. Borulkar, learned A.P.P. where it was held that criminal negligence is the gross and culpable negligence or failure to exercise that reasonable and proper care and precaution to guard against injury either to public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused to have adopted. The said decision was quoted with approval by the Apex Court in 1970 Mh.L.J. 132 : A.I.R. 1968 S.C. 1319, (Bhalchandra v. State of Maharashtra)3, and we have quoted the language used by the Supreme Court with regard to the ratio laid down in it. 13-B. On the teeth of the evidence extracted by us there can be no getting away from the fact that the appellant did not exercise reasonable and proper care and precaution to ensure the safety of the passengers who were travelling in the bus and on account of this 23 human lives were lost. Hence the defence of a bona fide error of judgment is not open to him. 14. Mr. Samant also urged the circumstances that constable Eknath Chaudhari P.W. 1 in his cross-examination stated that he did not feel that there was danger to the passengers if the bus went through the water showed that the error committed by the appellant was a bona fide error of judgment. We regret that we do not find merit in this submission. Merely because he felt that there was no danger to the passengers if the bus went through the water, would not be sufficient to hold that the act of the appellant was neither rash nor negligent. We regret that we do not find merit in this submission. Merely because he felt that there was no danger to the passengers if the bus went through the water, would not be sufficient to hold that the act of the appellant was neither rash nor negligent. In fact if this admission of his is considered in the background of his conduct that when in spite of warning of Irani the appellant continued driving the bus, he along with the accused he was escorting, jumped from the exit door of the bus it becomes clear that the said admission was made by him under some confusion. Had he really felt that there was no danger he would not have jumped from the bus along with the accused. 15. Mr. Samant next urged that Irarni who asked the appellant not to take the bus over the bridge was a witness whose evidence was essential to the unfolding of the narrative and his non-examination is fatal to the prosecution. We regret that we do not find any merit in this submission either. The evidence of Eknath Chaudhari clearly shows that in his presence Irani gave the said warning to the appellant and in such a situation the non-examination of Irani is of no consequence. 16. Mr. Samant also contended that the driver only drives the bus after the signal in the form of ringing of two bells is given to him by the conductor and in view of the fact that necessary signal was given to him by the conductor the appellant would not be liable. For two reasons we do not find any merit in this submission. Firstly, as pointed out by Mr. Borulkar A.P.P., the evidence of Eknath Chaudhari shows that after Irarni had warned, the appellant on his own started driving the bus and did not start it after the conductor had rang the bell. Secondly, even assuming that the said signal had been given by the conductor, the fact remains in teeth of the evidence that there was water up to the level of five feet over the bridge and particularly when Irani had warned him the appellant should not have driven the bus over the bridge. 17. Finally Mr. Secondly, even assuming that the said signal had been given by the conductor, the fact remains in teeth of the evidence that there was water up to the level of five feet over the bridge and particularly when Irani had warned him the appellant should not have driven the bus over the bridge. 17. Finally Mr. Samant urged that inasmuch as the incident had taken place in August 1980 and 18 years have elapsed, the instant is a case wherein the jail sentence of the appellant warrants to be drastically reduced and in lieu thereof a substantial fine should be imposed on him. We have given our anxious consideration to this submission also and find no merit in it. The act of the appellant, in our judgment, was an extremely callous and reckless one. With water of the depth of five feet flowing over the bridge and despite the warning of Irani, the appellant, without any signal form the conductor, chose to drive the bus resulting in its falling down in the Nala, due to the pressure of the water, leading to the loss of 23 human lives. In our view he deserves no sympathy. 18. This brings us to Criminal Appeal No. 513 of 1985 preferred by the State of Maharashtra against the acquittal of the conductor Vasant Khanderao Bade. As mentioned earlier if the view of acquittal is a possible view, this Court would not interfere with it in spite of the fact that had it been the trial Court it would have taken a different view. In the instant case the view of acquittal taken with respect to the said accused was a possible view for the reasons stated by the learned Judge in para 9 of the impugned judgment. Therein the learned Judge has observed that there was no evidence either to show the rashness or negligence of the said accused or he shared common intention with the appellant regarding the commission of the offence. In addition, as we have mentioned above, the evidence of Eknath Choudhari P.W. 1 shows that without the said accused giving a signal the appellant started driving the bus. In these circumstances we are not inclined to interfere with the acquittal of the said accused. It also needs to be remembered that 18 years have elapsed since the incident took place. 19. In these circumstances we are not inclined to interfere with the acquittal of the said accused. It also needs to be remembered that 18 years have elapsed since the incident took place. 19. In the result both Criminal Appeal No. 892 of 1984 and Criminal Appeal No. 513 of 1985 are dismissed. The appellant is on bail. He shall be taken into custody forthwith to serve out the sentence. Mr. Samant prayed that some time be granted to the appellant to surrender. It is not open in law for us to accede to his request, which is accordingly rejected. In case a certified copy of this judgment is applied for by the Counsel for the parties it shall be issued within four weeks. Appeal dismissed. -----