B. C. PATEL, J. ( 1 ) STATE has preferred this appeal being aggrieved by judgment and order recorded by Judicial Magistrate, First Class on 3-8-1990 in Criminal Case no. 632 of 1987 wherein the accused was tried for offences punishable under Secs. 279, 304a and 337 of the Indian Penal Code and Secs. 112 and 116 of the Motor vehicles Act. ( 2 ) SHORT facts as it emerges from the complaint are as under :2. 1 On 3-1-1987 information was lodged by complainant Devshibhai before the police that Tulsibhai, his wife deceased Dayaben were travelling on a motor bike for going to Surat and that driver of S. T. bus No. GRT 8022, who was driving his bus in a rash and negligent manner has caused an accident, as a result of which tulsibhai and his wife sustained injuries. On appreciation of evidence, the trial Court acquitted the accused; Hence this appeal. ( 3 ) TULSIBHAI Rathod PW 1 was travelling on Rajdoot Motor cycle with his wife and son. Near Kosamba he was required to stop his motor bike at a distance of 20 to 25 ft. from a tempo ahead of him. This was required to be done as the road was passing through a school zone and students were walking on the road. As per his evidence, S. T. bus bearing No. GRT 8022 came from behind, dashed with the stationary motor bike on which he was riding as a result of which his wife and son were thrown from their seat of the motor bike. He sustained injuries in his leg. His wife was required to be removed to the hospital on account of injuries sustained where she died during the treatment. His son also sustained injuries on face. According to this witness, if the S. T. driver would have applied brakes, the accident could have been avoided. 3. 1 A suggestion was made in the cross-examination of the witness that before accident, he overtook; At the time of overtaking, one bus was coming in opposite direction from Kosamba side; Road was blocked as the bus was coming from kosamba and the tempo was stationary. With a view to save the complainant, the accused took the bus on the shoulder of left side road. With a view to save the complainant, the accused took the bus on the shoulder of left side road. It was suggested that in the manner in which the vehicles were being driven, there was no place between the bus and the motor cycle and therefore, the accident took place. The suggestion put forth by the defence has been denied. He has stated that on the road, there was no vehicular traffic. It appears that another suggestion was also made that as the witness all of a sudden came in the lane, the accident took place; This suggestion has also been denied by the witness. ( 4 ) KHIMJIBHAI Rathod PW 4, brother of the complainant and Devshibhai, on receiving the message came to the spot. From his testimony it appears that the motor cycle was beneath the S. T. bus. ( 5 ) PANCH Narendrabhai PW 2 was also examined to prove the panchnama. He has stated that the front left wheel of the bus was on the shoulder of the road and beneath the S. T. , the motor cycle was found which was crushed on account of the accident. Panchnama clearly reveals that the road is 22 ft. , wide having shoulders of 5 ft. , on both the sides. Front left wheel was on the shoulder of the road, just leaving 1 ft. , from the asphalt road, and all the three wheels were on the asphalt road. Beneath the bus, there was the motor cycle, and it was difficult to take out. Only after the use of a jack, the motor cycle could be pulled out. Reading the panchnama, it appears that almost half of the motor cycle was beneath the bus and there was no damage to the bus. There were no brake marks on the front or rear portion of the bus. 5. 1 This panchnama is required to be read with the evidence of Kishore PW 5, who was at the relevant time Motor Vehicle Inspector, Surat, and who examined the S. T. bus at the spot. From his evidence, it is clear that brakes of the S. T. bus were in order. The certificate issued by him is at Exh. 15, which makes it clear that the condition of brakes and brake connections were in order. ( 6 ) POST-MORTEM note Exh. From his evidence, it is clear that brakes of the S. T. bus were in order. The certificate issued by him is at Exh. 15, which makes it clear that the condition of brakes and brake connections were in order. ( 6 ) POST-MORTEM note Exh. 17 indicates that there were abrasions and fractures of 3rd and 4th ribs. Dr. Ashokbhai PW 7, who examined Dayaben while admitting in the hospital has pointed out that it was not possible to take her blood pressure on account of heart beats which was 100 per minute. The patient was restless and was complaining about pain in chest and back. Necessary treatment was given to the patient such as Oxygen and injections. During the treatment, the pressure became normal. At about 3-00 p. m. , it was found that there was internal bleeding and at 3- 30 p. m. , the patient became serious and soon thereafter died. ( 7 ) DR. Mahesh Panchal, PW 8 attached to Sanjeevani Hospital, has been examined by the prosecution to prove the injuries sustained by Tulsibhai, who was driving the motor cycle and his son Sanjay who was travelling on the motor cycle. Tulsibhai had the following injuries : (1) Abrasion on anterior aspect at right ankle joint, vertically placed "2x2" inside. (2) Abrasion on posterior aspect at right ankle joint transversely placed size 3"x1". (3) Abrasion on dorsal aspect at (11) of thigh 3"x1". (4) Abrasion situated on dorsal aspect of right wrist jt. size 2"x2". This witness has also deposed that the injuries were fresh and were possible by accident. Minor Sanjay who was also travelling on the motor cycle had the following injuries : (1) Abrasion situated 1 cm. above the left eye-brow transversely placed, size 30 cm. x 1 cm. (2) Abrasion situated on lower part at chin size 3 cm. x 3 cm. (3) Abrasion situated on left anterior aspect of left knee size 2 cm. x 1 cm. , vertically placed. In the cross-examination of the Medical Officer, he has stated that Sanjay was aged 4 years and as he was frightened, he was unable to answer any question. ( 8 ) THE trial Court has rejected the prosecution evidence on the ground that the person who might have witnessed the incident is not examined. x 1 cm. , vertically placed. In the cross-examination of the Medical Officer, he has stated that Sanjay was aged 4 years and as he was frightened, he was unable to answer any question. ( 8 ) THE trial Court has rejected the prosecution evidence on the ground that the person who might have witnessed the incident is not examined. The prosecution has not examined independent witnesses such as passengers travelling in the bus or the conductor. The story of the prosecution that the tempo was standing ahead of the motor cycle cannot be accepted because in the panchnama there was no reference to the stationary tempo at the place. The trial Court has also given importance to non-examination of injured Sanjay aged about 4 years. The trial Court has considered the post-mortem report and the evidence of Dr. Virendrakumar Pattidar PW 6, and has arrived at a conclusion that "it is clear that on account of shock and haemorrhage, dayaben expired, but the prosecution has not proved that the accused was driving his vehicle in a rash and negligent manner". The trial Court has, therefore, acquitted the accused. ( 9 ) THE incident in question took place on the road. Passengers travelling in bus on account of delay in investigation may not like to wait in the bus. The manner in which the incident took place is more important, and not number of statements recorded by police about the accident. People moving on the road are ordinarily not concerned with the happenings on the road unless one is interested. Therefore, it is highly improbable to expect that a passer-by will wait till the police arrives and record statement. The officer recording the statement would not know who were the persons travelling in the bus or who were the passers-by. The trial Court has given undue importance to this aspect. So far as non-examination of the conductor is concerned, the prosecution may not examine the conductor who might have been discharging his duties when the accident took place. The conductor might be discharging his duties, i. e. , ticketing the passengers, and he may not have witnessed the incident. ( 10 ) THE trial Court has seriously erred in giving importance to the submissions made by the defence that panch witness has not deposed about stationary tempo and the same is not noted in the panchnama. The conductor might be discharging his duties, i. e. , ticketing the passengers, and he may not have witnessed the incident. ( 10 ) THE trial Court has seriously erred in giving importance to the submissions made by the defence that panch witness has not deposed about stationary tempo and the same is not noted in the panchnama. It may be noted that the tempo was not involved in the accident. Panchnama was drawn during the course of investigation and not immediately after the accident. The complaint in the instant case was lodged at about 13-45 hours and the accident in question took place at 11-00 a. m. After information being received, the police party went to the spot and panchnama was drawn between 14-30 to 15-00 hours. The trial Court has not applied its mind to this aspect. The tempo driver would not wait till the arrival of police. He was not concerned with the accident in question. He was not expected to wait till arrival of panch and police. The trial Court has committed a serious error in considering this aspect against the prosecution. ( 11 ) THE injured, PW 1, who was driving the motor cycle is examined. The trial court expected that a child aged 4 years should have been examined by the prosecution. Once the injured motor cycle driver himself has been examined, there is no necessity to examine a minor aged only four years at the relevant time. Therefore, the trial Courts view that the prosecution case cannot be believed as the minor is not examined, cannot sustain. ( 12 ) ANOTHER submission made by the learned Advocate is that the vehicle was coming from the opposite direction and the tempo was also going in the same direction in which the bus was driven by the accused and the motor cycle driver pw 1 tried to overtake the bus and as there was no sufficient distance, he entered the lane where the bus was passing and that is how the accident took place. The trial Court has observed how the accident in question took place is not shown by the prosecution, and, therefore, it raises a doubt as to whether it can be said that the accident in question took place because of the rash and negligent act of the accused. The trial Court has observed how the accident in question took place is not shown by the prosecution, and, therefore, it raises a doubt as to whether it can be said that the accident in question took place because of the rash and negligent act of the accused. The prosecution case is that the motor cycle was in a stationary position behind a stationary tempo which was ahead of the motor cycle. The bus driver ought to have seen this from a distance and ought to have applied brakes. One has to also remember that the accident in question took place near a cross-road where one is expected to drive slow, especially heavy vehicles. The fact also discloses that near the place where the accident took place, there is a school. In a zone where a school is situated, drivers are required to take much more care and are required to drive vehicle slowly. Panchnama clearly reveals the nature of impact. If the driver of the bus was driving in a slow speed, there would not have been such an impact as is found in the instant case. It is also clear from the absence of brake marks that the s. T. driver failed to apply brakes even though the brakes were in working condition. From the facts narrated here in above, it becomes clear that the accused was driving the bus so rashly and negligently that he could not control the bus as a result of which it dashed with the motor cycle. ( 13 ) MR. Surti, learned Advocate appearing for the respondent submitted that the accident must have happened as a result of error of judgment. To substantiate this submission, he relied on the judgment in the case of Syad Akbar v. State of karnataka, reported in AIR 1979 SC 1848 . He further submitted that in the instant case, the principle of resipsa loquitor will not apply. 13. 1 In paragraph 5 of the judgment the Apex Court has narrated the facts of that case, which are as under : "the accused was driving the bus slowly as there was a narrow bridge 30 feet ahead. The mother (P. W. 4) came from the habitation of the village to go to the field across the road at some distance, where her husband was working. The ill-fated child was following the mother. The mother (P. W. 4) came from the habitation of the village to go to the field across the road at some distance, where her husband was working. The ill-fated child was following the mother. Before crossing the road, the mother asked the child not to come after her but to return home, but, when the mother had crossed the road and descended into the deep ditch of the other side, the child crying amman suddenly dashed across the road to join her mother. The accused in order to save the child, swerved the vehicle to the extreme right side of the road. According to the eyewitnesses, excepting one, the accused blew the horn also. But the child was caught under the left front wheel of the vehicle and was crushed to death. It was further evident from the statement of G. Ramakrishnappa (P. W. 5) that if the appellant had taken the bus beyond the point where the child was hit, the bus would have fallen into the deep ditch, along with the passengers. "13. 2 It is in the aforesaid facts and situation that the Apex Court pointed out that two lines of approach in regard to the application and effect of the maxim resipsa loquitur is possible. The Apex Court has pointed out that if the nature of an accident is such that the mere happening of it is evidence of negligence, the burden shifts or is in the first instance, on the defendant to disprove his liability. Such shifting or casting of the burden on the defendant is on account of a presumption of law and fact arising against the defendant from the constituent circumstances of the accident itself, which bespeak negligence of the defendant. The Court further observed that according to the other line of approach, res ipsa loquitur is only an aid in the evaluation of evidence. The Court further held that the primary reasons for non-application of this abstract doctrine of res ipsa loquitur to criminal trials are : Firstly, in a criminal trial, the burden of proving everything essential to the establishment of the charge against the accused always rests on the prosecution, as every man is presumed to be innocent until the contrary is proved, and criminality is never to be presumed subject to statutory exception. No such statutory exception has been made by requiring the drawing of mandatory presumption of negligence against the accused where the accident "tells its own story" of negligence of somebody. Secondly, there is a marked difference as to the effect of evidence, viz. , the proof in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. The Court further held that the fact that the driver tried to dodge the child indicated that the accident happened due to an error of judgment and not negligence or want of driving skill. 13. 3 In the instant case, the prosecution evidence clearly reveals that the motor cycle was stationary and the bus dashed from behind. From the panchnama it is also clear that half of the motor cycle was beneath the S. T. bus and the bus was required to be lifted by means of jack for pulling out the motor cycle. It is also required to be noted that there were no brake marks in spite of the fact that the brake and its connections were in order. In the circumstances, it is a case of gross negligence and want of driving skill, and there is no substance in the submission that the accident is a result of error of judgment. ( 14 ) MR. Surati, relying on the judgment in the case of Rajayyan v. State of kerala, reported in AIR 1998 SC 1211 submitted that the order of acquittal should not be set aside more particularly when there is delay and there is nothing to show that the order is patently wrong and wholly unsustainable. 14. 1 There is no dispute about this principle. 14. 1 There is no dispute about this principle. Even if the other view is possible, the order of acquittal may not be disturbed, but if it is submitted in an appeal against an order of acquittal that the appellate Court should never interfere at all, then the intention of the legislature to provide an appellate forum against acquittal orders would be frustrated. In the instant case, even after exercising due restraint, this Court is of the view that the order of acquittal in the present case is required to be interfered with. ( 15 ) PLURALITY of evidence is not required. In the instant case, the person who was driving the motor cycle, which was stationary and who has sustained injuries, is examined. The medical officer corroborates the version of sustaining injuries. Motor Vehicle Inspectors evidence clearly reveals that brakes of the vehicle (S. T. bus) were in order. From the panchnama it is very clear that there were no brake marks. The vehicle driver, in the instant case the accused, was in a position to see the movement of traffic in front of his vehicle. ( 16 ) SECTION 279 of the Indian Penal Code reads as under :"279. Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. "16. 1 Rash or negligent driving as indicated in this section does not refer to the speed of the vehicle. The manner of driving the vehicle is more important and not the speed. It should not be in a rash or negligent manner so as to endanger human life or to be likely to cause hurt or injury to any person. In the instant case, the accused, knowing full well that he was driving a heavy vehicle, it was expected of him to drive in such a manner so as not to cause injury to anyone. In the instant case, the accused, knowing full well that he was driving a heavy vehicle, it was expected of him to drive in such a manner so as not to cause injury to anyone. The fact that he dashed with a stationary motor bike clearly reveals that he was driving the vehicle in such a manner which must be termed as rash and negligent; Therefore, the order of acquittal recorded by the trial Court is required to be set aside, and is hereby set aside. The accused is held guilty for offences punishable under Secs. 304a, 337 and 279 of the Indian Penal Code and under Secs. 112 and 116 of the Motor Vehicles act. ( 17 ) AT the request of Mr. Surti, matter stands adjourned to Monday, the 2 1/09/1998, for hearing the accused on the question of sentence. 21-9-1998 ( 18 ) THE accused has appeared before the Court today and submitted that a lenient view should be taken in the matter as the accident took place much earlier, i. e. , before about 10 years. He has further submitted that he has five children to look after. ( 19 ) IT is required to be noted that the accused by his rash and negligent act has taken the life of a human being and a child has lost his mother which cannot be compensated in terms of money. However, the Court also has to keep in mind that this appeal is heard after a period of about nine years. ( 20 ) LEARNED Advocate Mr. Surti requests the Court that the accused should be released on probation. It is required to be noted that the driver of a public conveyance are required to drive their vehicles with greater care. In the instant case, it is found that though brakes were in working condition, he has not bothered to apply the brakes as a result of which the accident took place and a child has lost his mother. It is required to be noted that after a person is held guilty, order of sentence should ordinarily follow. Unless the facts requires to enlarge the accused on probation. It is required to be noted that after a person is held guilty, order of sentence should ordinarily follow. Unless the facts requires to enlarge the accused on probation. Those who are on steering must bear in mind that they have to drive vehicles safely so as to see that lives of the passengers and persons on the road are not endangered because of rash and negligent driving on public road. It is not a case of just an accident or an error judgment. If that would have been so, there would have been no question of sentencing the accused. Here, the accused was driving in a rash and negligent manner. Though brakes were required to be applied for avoiding an accident, the accused has not applied the brakes. Under the circumstances, benefit of probation cannot be granted. . ( 21 ) IN a case like this, it is also necessary to invoke the provisions contained in Sec. 357 of the Criminal Procedure Code. The Apex Court in the case of Hari kishan v. Sukhbir Singh, reported in AIR 1988 SC 2127 has recommended to all courts to exercise powers liberally so as to meet the ends of justice in a better way. In para 10 the Court has observed as under :"sub-SEC. (1) of Sec. 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with sub-sec. (1 ). We are concerned only with sub-sec. (3 ). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgottern in the criminal justice system. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. This power was intended to do something to reassure the victim that he or she is not forgottern in the criminal justice system. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. "21. 1 The payment must be reasonable and that would depend upon the facts and circumstances of each case. Here the culprit is one, and therefore, he will have to pay the entire amount of compensation as provided in sub-sec. (3) of Sec. 357 of Criminal Procedure Code. Minor Sanjay has lost his mother and Tulsidas has lost his wife; They have also sustained injuries in the accident. The loss cannot be adequately compensated even by compensation. But if the accused has committed a crime and the victims are the sufferer, then he must pay the compensation. ( 22 ) LOOKING to the crime committed by the accused, I think that it would be just and proper to direct the accused to pay a sum of Rs. 20,000. 00 in all (Rupees twenty thousand only) to Sanjay, son of Tulsibhai Mohanbhai Rathod and to Tulsibhai Mohanbhai Rathod. The accused is granted ten weeks time to pay amount of compensation. It may not be possible for the accused to pay the amount of compensation at a time and therefore, I am inclined to give reasonable time. The accused shall pay the amount in ten equal weekly instalments. After proper identification, trial Court shall make the payments to the aforesaid two persons on depositing the amount by accused. 22. 1 The accused is convicted under Secs. 304a, 279 and 337 of the Indian Penal Code and is sentenced to pay fine of Rs. 500. 00 (Rupees five hundred only) within a period of four weeks, in default of payment of fine, the accused shall undergo simple imprisonment of seven days. ( 23 ) LEARNED Advocate requests that this order may be suspended for a period of ten weeks. This Court has not awarded any sentence of imprisonment. Therefore, there is no good ground for suspending the operation of this order. Hence, the said request is rejected. .