JUDGMENT 1. 1. This is an appeal filed by the State of Rajasthan against the against the judgment and order dated 11.5.2006, passed by the Addl. Civil Judge (Jr. Dn.) & Judicial Magistrate No.4, Alwar in Criminal Case No.28/2006, whereby he acquitted the accused respondent from the offence under Section 279, 337, 338, 304-A Indian Penal Code. 2. The brief facts of the case are that an unfortunate road accident which had taken place on 2.4.1991 at 9.15 A.M. due to which, 8 persons have been lost their life. 3. The complainant Sukhveer P.W.2 gave a 'Parcha Bayan' Ex.P.2 at M.I.A., Alwar on 2.4.1991 stating therein that he was going in Joga Singh's Jeep from Alwar to Govindgarh, and on reaching Baggad Thihare Mod, one Jeep No. R.N.A. 638 in which his wife Chet Kaur, daughter Rikki, father-in-law Lahori, mother-in-law Geeta Devi, Fufi Sasur Niranjan and his wife Smt. Kailashwanti, brother-in-law Bhullan and his son and other passengers were sitting and one Maruti was also driven in the front. From the side of Thihara one Bus No. R.N.A. No. 339 came rashly driven. The Maruti Car saved itself and took side and the Bus hit Jeep R.N.A. 638, as a result, Chet Kaur, Rikki, Geeta and Jeep Driver died on the spot and Niranjan Lahori, Kailashwanti and Tinku are injured in serious condition. These four persons were admitted in the hospital died later on. The Driver of the Bus No. R.N.A. 339 was Ravi Kapoor who left the Bus and run away. 4. Upon the aforesaid incident, a case No. 119/91 for the offence under Section 304A Indian Penal Code was registered and investigation started. 5. After investigation the police filed a challan before the Court of Addl. Civil Judge (Jr. Dn.) & Judicial Magistrate No.4, Alwar The learned Magistrate has framed charges against the accused respondent for offence under Sections 279, 337, 338, 304-A Indian Penal Code. 6. The charges were read over and explained to the accused respondent who denied all the allegations and claimed for trial. 7. During trial, the prosecution in support of its case examined as many as eleven witnesses and got exhibited some documents. Thereafter, the statement of accused appellant were also recorded under Section 313 Criminal Procedure Code. 8. 6. The charges were read over and explained to the accused respondent who denied all the allegations and claimed for trial. 7. During trial, the prosecution in support of its case examined as many as eleven witnesses and got exhibited some documents. Thereafter, the statement of accused appellant were also recorded under Section 313 Criminal Procedure Code. 8. After hearing both the parties, the trial court passed the order dated 11.5.2006 and the accused respondent was acquitted from the offence under Section 279, 337, 338 & 304-A Indian Penal Code. 9. Aggrieved against the judgment and order of acquittal passed by the trial court dated 11.5.2006, the State of Rajasthan has preferred the present appeal with the prayer to quash the same. 10. In this appeal during the course of arguments, it has been submitted by the learned Public Prosecutor Mr. B.N. Sandu that the learned trial Court has not appreciated the statement of prosecution witnesses properly. 11. Mr. Sandu further contended that the trial Court has acquitted the accused respondent on the ground that the notice under Section 133 of the Motor Vehicles Act was not served upon the owner and the identification parade of the accused was not conducted. According to the evidence available on record it is clear from the statements of P.W. 2 Sukhdev and P.W. 4 Multan Singh were the eye-witnesses of the incident who said that the Bus Driver hit Jeep No. R.N.A. 638 and they identified the Bus Driver and Ravi Kapoor at the time of occurrence, the name of the accused respondent is also in the Parcha Bayan and they identified him in the Court also. In such a situation, non-serving of notice under Section 133 of the Motor Vehicles Act keeps no importance, as such, the accused is liable to be convicted. 12. The evidence of P.W. 7 Dr. Gopal who conducted the postmortem report of the deceased and prepared the injury report of the injured persons which proves that the accident took place and 4 persons have been died on the spot namely Chet Kaur, Rinki, Geeta and Jeep Driver (Farid) and rest of the 5 persons received serious injuries, out of which, four injured Niranjan, Lahori and Kailashwanti and Tinku are died in hospital. All these persons were going to Govindgarh to attend the marriage. 13. The prosecution case was fully proved and the Addl. All these persons were going to Govindgarh to attend the marriage. 13. The prosecution case was fully proved and the Addl. Chief Judicial Magistrate No.1 Alwar by his order dated 24.6.1999 convicted the accused Ravi Kapoor for the offence under Section 279, 337, 304-A and acquitted from the offence under Section 338 Indian Penal Code and sentenced as under:- Under Section 279 Indian Penal Code six months simple imprisonment and a fine of Rs. 1,000/-, in default of payment of fine to further undergo one month's simple imprisonment. Under Section 337 Indian Penal Code one month's simple imprisonment and fine of Rs. 100/-, in default of payment of fine to undergo 15 days simple imprisonment; Under Section 304A Indian Penal Code, two years simple imprisonment and fine of Rs. 5,000/-, in default of payment of fine to further undergo 6 months simple imprisonment. 14. Thereafter the accused respondent filed an appeal before the Court of Special Judge, SC/ST (Prevention of Atrocities Cases) Alwar against the aforesaid order dated 24.6.99 passed by the Addl. Chief Judicial Magistrate, Alwar. The appellate Court vide his order dated 26th October, 1999, remanded the case to the court of Addl. Chief Judicial Magistrate, Alwar. 15. Against the said order dated 26.10.1999 the accused respondent filed a Criminal petition under Section 482 Criminal Procedure Code before this Court with the prayer to quash the judgment and order dated 26.10.1999. 16. By a coordinate Bench of this Court vide its order dated 22 September, 2004 dismissed the aforesaid Criminal petition filed by the accused respondent under Section 482 Criminal Procedure Code. 17. Thereafter, the matter was retried by the Addl. Chief Judicial Magistrate Alwar and acquitted the accused respondent. 18. Mr. Sandu has drawn the attention of this Court that the trial court cannot take two views as in one hand he has convicted the accused respondent and on the other side he has acquitted him from the offence under Sections 279, 337, 338 and 304(A) Indian Penal Code which is completely unjustified. 19. Mr. Sandu prayed to this Court that in the aforesaid accident 8 persons have died who belongs to same family, the accused should be punished for minimum two years as sentence as awarded by the trial court in its previous order dated 24.6.1999. 20. Mr. 19. Mr. Sandu prayed to this Court that in the aforesaid accident 8 persons have died who belongs to same family, the accused should be punished for minimum two years as sentence as awarded by the trial court in its previous order dated 24.6.1999. 20. Mr. Sandu, in support of his arguments, relied upon a judgment in case (1) B. Nagbhushnam v. State of Karnataka, reported in, 2008 Cr.L.R. (SC) 524 which runs as under:- Penal Code, 1860 Secs. 304-A & 279-Sentence-As per eye- witnesses bus was driven at high speed- No mechanical failure- Appellant did not say that there was error of judgment on his part-Concurrent findings of Courts below-Held, sentence of six months is not excessive". 21. Hon'ble Supreme Court in Para No. 8, 9, 11, 12 & 13 of its judgment observed as under : "8. The dead body of the girl was found 2 feet away from the bus. It was only 3 feet away from the pavement on the right side of the road. The bus admittedly did not have any mechanical failure. Appellant did not say that there was an error of judgment on his part. The High Court while exercising its limited revisional jurisdiction also discussed the case at some details. There is a concurrent finding of fact that the bus was being driven rashly and negligently. The postmortem report proved by P.W.12- Dr. M.N. Raju. She sustained several external injuries. On dissection, the following injuries were found:- (a) Right temporal region Depressed Wound present. (b) Normal clots present in the right region. 9. P.W. 1 is one Sri Chowdappa. He is a witness to the accident. According to him, the child sustained grievous injuries on head and other parts of the body. In answer to a question put to him in cross-examination, he stated that he was being driven at a high speed. The mahazar, was marked as Exhibit P-2. The contents of the mahazar was not challenged. It was found by the learned Trial Judge that the evidence of P.W. 1 alone was sufficient to hold that the appellant was guilty of the said offences. Other prosecution witnesses were standing at different places. They had occasions to see the accident from different directions. The spot mahazar disclosed that there was a break-mark for about 20-25 feet on the road. Reliance placed by Mr. Other prosecution witnesses were standing at different places. They had occasions to see the accident from different directions. The spot mahazar disclosed that there was a break-mark for about 20-25 feet on the road. Reliance placed by Mr. Kulkarni on (2) Syad Akbar v. State of Karnataka reported in AIR 1979 Supreme Court 1848 is not apposite. It proceeded on the basis that doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case as its applicability in an action for injury by negligence is well known. In Syad Akbar (supra), this Court opined; "Such simplified and pragmatic plication of the notion of res ipsa loquitur, as a part of the general mode of inferring a fact in issue from another circumstantial fact is subject to all the principles, the satisfaction of which is essential before an accused can be convicted on the basis of circumstantial evidence alone. These are; Firstly all the circumstances including the objective circumstances constituting the accident, from which the inference of guilt is to be drawn, must be firmly established. Secondly, those circumstances must be of a determinative tendency pointing unerringly towards the guilt of the accused. Thirdly, the circumstances should make a chain so complete that they cannot reasonably raise any other hypothesis save that of the accused's guilt. That is to say, they should be incompatible with his innocence, and inferentially exclude all reasonable doubt about his guilt." The maxim was not applied having regard to the fact of a said case and on the finding that it was a case of error of judgment and the accused gave a reasonable, convincing explanation of is conduct. The Maxim res ipsa loquitur was not found to be applicable.We are of the opinion that six months' simple imprisonment and a direction to the appellant to pay a fine of Rs. 1,000/- for commission of the offence punishable under Section 304-A and simple imprisonment for one month and to pay a fine of Rs. 500/- for the offence punishable under Section 279 of the Indian Penal Code cannot be said to be shocking. 1,000/- for commission of the offence punishable under Section 304-A and simple imprisonment for one month and to pay a fine of Rs. 500/- for the offence punishable under Section 279 of the Indian Penal Code cannot be said to be shocking. We may in this connection, notice that in Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 , this Court opined : "1.3 Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families criminal Courts cannot treat the nature of the offence under Section 304A Indian Penal Code as attracting the benevolent provisions of Section 4 of the PO Act. While considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly that even if he is convicted he would be dealt with leniently by the Court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the Courts can play, particularly at the level of trial Courts, for lessening the high rate of motor accidents. (Underlined by me). 22. In (3) Rattan Singh v. State of Punjab, (1979) 4 SCC 719 , this Court held: "5. Nevertheless, sentencing must have a policy of correction. This driver, if he has to become a good driver, must have a better training in traffic laws and moral responsibility, with special reference to the potential injury to human life and limb. Punishment in this area must, therefore, be accompanied by these components. Nevertheless, sentencing must have a policy of correction. This driver, if he has to become a good driver, must have a better training in traffic laws and moral responsibility, with special reference to the potential injury to human life and limb. Punishment in this area must, therefore, be accompanied by these components. The State, we hope, will attach a course for better driving together with a liverlier sense of responsibility, when the punishment is for driving offences. May be, the State may consider, in cases of men wit poor families, occasional parole and reformatory courses on appropriate application, without the rigor of the old rules which are subject to Government discretion. We, therefore, do not find any merit in this appeal which is dismissed accordingly. (Underlined by me). 23. Mr. Sandu drawn the attention of this Court to a decision of Supreme Court in (4) Hari Ram and Others v. State of Rajasthan, reported in 2000 CRI. L.J. 2312 , their Lordships held as under : "Criminal Procedure Code, 1973, Section 378 Appeal against acquittal-Power of Court-Re-appreciation of evidence-Murder case-Evidence of eye-witness one of whom was wife of deceased- Rejected by lower Court on wrong assumptions - Reversal of acquittal by High Court on re-appreciation of evidence- Proper." The power of High Court, while hearing an appeal against an acquittal is an wide and comprehensive as in an appeal against a conviction and it had full power to re-appreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would sitting as a trial Court, have taken the other view. While re-appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trial judge. But if the judgment of the Sessions judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice. (underlined by me). But if the judgment of the Sessions judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice. (underlined by me). The prosecution case was that at about midnight, while the deceased was sleeping outside his house, accused persons armed with Axe, Barshi and lathis, assaulted the deceased, on account of which, the deceased sustained serious injuries and ultimately succumbed to those injuries. The eye witnesses were the brother and the wife of the deceased. They have not only seen the occurrence but also they have seen the accused persons with their respective weapons in their hands mercilessly assaulting the deceased. Their version was fully corroborated by the medical evidence and presence of large number of injuries on the dead body of the deceased on different parts. The rejection of their evidence by the lower court by doubting their presence and on ground that they could not have seen the occurrence was found to be based on wrong assumptions and conjectures. Reversal of acquittal by High Court on appreciation of evidence was proper." (underlined by me). 24. Lastly he contended that in view of the above, the judgment and order of acquittal passed by the trial court be quashed and set-aside and the accused respondent be punished for the charge leveled against him. 25. On the other hand, Mr. Pankaj Gupta Advocate appearing on behalf of the accused respondent has contended that the learned trial Court has rightly and properly appreciated the evidence of prosecution witnesses, hence, no interference is required by this Court in the judgment and order passed by the trial Court. 26. He further urged to this Court that the Magistrate in first trial wrongly convicted accused-respondent at that time neither investigating officer nor medical evidence examined. Against that judgment dated 24.6.1999 accused-respondent preferred an appeal before the Addl. Sessions Judge, Alwar who set aside the judgment dated 24.6.1999, but remanded the matter for summoning evidence which previously left by the prosecution. In retrial called the evidence and after commencement of trial acquitted the accused respondent vide judgment dated 11.5.2006 which is under challenge in the present appeal. 27. Sessions Judge, Alwar who set aside the judgment dated 24.6.1999, but remanded the matter for summoning evidence which previously left by the prosecution. In retrial called the evidence and after commencement of trial acquitted the accused respondent vide judgment dated 11.5.2006 which is under challenge in the present appeal. 27. The statements of three independent witnesses of arrest memo P.W. 1 Sheela Gupta, P.W. 3 Subhash Chawla and P.W. 10 Bal Kishan. Out of which, P.W. 3 Subhash Chawla and P.W. 10 Bal Kishan have been declared hostile and P.W. 1 Sheela Gupta neither she named the accused respondent nor she sated that the driver of the bus was negligent. Therefore, the prosecution failed to establish that accused respondent was the driver of the Bus for the reasons that P.W. 2 Sukhdev Singh's testimony is shaky and contradictory to his previous version Ex.P.2 FIR/Parcha Bayan so as to Trial Court on page 9 of the judgment held that this witness was not eye witness and he also could not saw the driver. P.W.5 Multan Singh did not previously know to accused respondent and also no identification parade was conducted and there was ambiguity that accused respondent was driver or not, to resolve it no identification parade was conducted by the investigation agency. That in order to establish the accused respondent was driver, no notice under Section 133 of Motor Vehicles Act given to owner. 28. No evidence was produced by prosecution that driver was driving the bus rashly and negligently or very speedy. 29. He has relied upon judgment of Supreme Court in (5) " Kalyan Singh v. State of M.P." reported in (2006) 13 SCC p.30 3. 30. In the last he urged to this Court that the accused respondent should be acquitted. 'If not' then he should be released on probation on the following grounds:- That the accused respondent is facing trial for the last 18 years which itself tantamount to punishment and mental agony. 30. In the last he urged to this Court that the accused respondent should be acquitted. 'If not' then he should be released on probation on the following grounds:- That the accused respondent is facing trial for the last 18 years which itself tantamount to punishment and mental agony. In this connection, he relied upon a judgment of Supreme Court in (6) Paul George v. State of NCT of Delhi, reported in (2008) 4 SCC p. 185 which runs as under:- A. "Police-Delhi Police Act, 1978 (34 of 1978) Section 140(1) - "Under the color of duty" Appellant, a Head Constable Driver, while driving the official vehicle on duty caused accident resulting in a death and injuries to others, held was clearly not a matter within the color of duty- Indian Penal Code, 1860, Sections 279 and 304A. B. Probation of Offenders Act, 1958-S.4 Offender released on probation to meet ends of justice-Factors considered-Appellant (offender) had already been dismissed from service on account of his conviction under Sections 279 and 304-A Indian Penal Code for causing accident resulting in a death and injuries to others-Litigation pending for 20 years-Offender having a good career except for the said conviction-Criminal Procedure Code, 1973, section 360." 31. I have heard learned Public Prosecutor Mr. B.N. Sandu as well as Mr. Pankaj Gupta learned counsel for the accused-respondent at length. 32. First of all, I will consider the judgment delivered by the Addl. Chief Judicial Magistrate No.1 Alwar dated 24.6.1999, he relied upon the statement of P.W. 2 Sukh Dev Singh, P.W. 3 Subhash Chawla, P.W. 4 Multhan Singh and P.W.5 Narayan Sharma. The relevant portion of the statements of aforesaid witnesses runs and under:- HINDI MATTER 359917A 33. Secondly, the Special Judge (SC/ST Atrocities Cases), Alwar vide his order dated 26.10.1999 set-aside the order passed by the Addl. Chief Judicial Magistrate No.1 and remanded the case back with certain directions. Thereafter the Addl. Civil Judge (Jr. Dn.) and Judicial Magistrate No.4, by his order dated 11.5.2006 acquitted the accused respondent with the following observations: HINDI MATTER 359917B 34-35. Secondly, the Special Judge (SC/ST Atrocities Cases), Alwar vide his order dated 26.10.1999 set-aside the order passed by the Addl. Chief Judicial Magistrate No.1 and remanded the case back with certain directions. Thereafter the Addl. Civil Judge (Jr. Dn.) and Judicial Magistrate No.4, by his order dated 11.5.2006 acquitted the accused respondent with the following observations: HINDI MATTER 359917B 34-35. Now so far as notice under Section 133 of the Motor Vehicles Act was concerned which was not served upon the owner, because the statement of P.W.2 Sukh Dev Singh, Multan Singh P.W. 4 stated that the accused respondent was the driver and they have identified him on the spot as well as in the court also. In such situation, service of notice under Section 133 of the Motor Vehicles Act upon the owner has no relevancy. As such, in the light of the statement of P.W. 2 Sukh Dev Singh and P.W. 4 Multan Singh no identification parade is necessary. The FIR Ex. P.1 shows that the name of the accused respondent has already mentioned. 25. So far as the request of the counsel for the respondent for probation is concerned, my attention was drawn on the following judgment of Supreme Court in Dalbir Singh v. State of Haryana and others, reported in 2000 CRI L.J. 2283 , Hon'ble Supreme Court held as under:- "(B) Probation of Offenders Act, 1958 Section 3 Penal Code, 1860, Section 304-A Benefit of probation-Not to be extended to persons convicted of offence of causing death by rash and negligent driving." 36. Their Lordships in Para No.7, 8, 12 & 13 of the aforesaid judgment observed as under:- "7. The conditions for applying Section 4 of the P.O. Act have been delineated in the commencing portion of the provisions in the following words "When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender it is expedient to release him on probation of good conduct..." 8. Parliament made it clear that only if the Court forms the opinion that it is expedient to release him on probation for his good conduct regard being had, to the circumstances of the case. Parliament made it clear that only if the Court forms the opinion that it is expedient to release him on probation for his good conduct regard being had, to the circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is "the nature of the offence." 12. In State of Karnataka v. Krishna alias Raj (1987) 1 SCC 538 ; ( AIR 1987 SC 861 , 1987 Cri. LJ 776 ) this Court did not allow a sentence of fine, imposed on a driver who was convicted under Section 304A Indian Penal Code to remain in force although the High Court too had confirmed the said sentence when an accused was convicted of the offence of driving of a bus callously and causing death of a human being. In that case this court enhanced the sentence to rigorous imprisonment for six months besides imposing a fine. 13. Bearing in mind the galloping trend in road accidents in India and devastating consequences visiting the victims and their families, Criminal Courts cannot treat the nature of the offence under Section 304A Indian Penal Code as attracting the benevolent provisions of Section 4 of the PO Act. While considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a singal moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being or even if such death ensues he would not be convicted of the offence; and lastly that even if he is convicted he would be dealt with leniently by the Court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the Courts can play, particularly at the level of trial Courts, for lessening the high rate of motor accidents due to callous driving of automobiles." 37. For these reasons, I set-aside the order of acquittal dated 11.5.2006 passed by the Addl. Civil Judge (Jr. Dn.) and Judicial Magistrate No.4 Alwar and convict the accused respondent for the offence under Section 279, 337, 304-A Indian Penal Code and sentence him as under:- For the offence under Section 279 Indian Penal Code 6 months simple Imprisonment with fine of Rs. 1000/-, in default of payment of fine to undergo one month simple imprisonment; For the offence under Section 337 Indian Penal Code one month simple imprisonment and fine of Rs. 500/-, in default of payment of fine, to undergo 15 days rigorous imprisonment; and For the offence under Section 304A Indian Penal Code 2 years simple imprisonment and a fine of Rs. 5000/-, in default of payment of fine, to undergo for further imprisonment of six months. All the sentences will run concurrently. 38. The accused respondent is on bail. His bail bonds are hereby cancelled and he should be taken into custody in accordance with law.39. The appeal field by the State of Rajasthan is allowed. The trial court is directed to proceed in accordance with law.Appeal allowed. *******