JUDGMENT Kuldip Singh, J(Oral). This revision is directed against judgment dated 5.7.2006 passed by learned Sessions Judge, Solan in Criminal Appeal No.22-S/10 of 2005, affirming judgment dated 17.11.2005 passed by learned Chief Judicial Magistrate, Solan in Criminal Case No.255/2 of 2003.The petitioner has been convicted under Sections 279, 337 and 304A IPC and Section 181 of the Motor Vehicles Act, 1988. He has been sentenced to pay a fine of Rs. 500/-under Section 279 IPC, imprisonment till the rising of the Court and fine of Rs.500/-under Section 337 IPC, simple imprisonment for six months and fine of Rs.500/- under Section 304-A IPC and fine of Rs.500/- under Section 181 of the Motor Vehicles Act with default clauses. 2. The prosecution case in brief is that on 29.7.2003 at about 12.20 p.m., a telephonic message was received at Police Station, Dharampur that near Pine Grove School a Tata Sumo had met with an accident. Police reached the spot. It was found that two persons were lying unconscious on the spot. They were 3. It was found that vehicle was on its way from Dharampur to Kasauli. The petitioner was overtaking another vehicle. The petitioner lost control over Tata Sumo which he was driving, Tata Sumo rolled down from the road. The accident took place due to rash and negligent driving of the driver. Ruka Ex.PW-8/A was prepared and was sent to the Police Station, Dharampur on the basis of which FIR Ex.PW-3/B was registered. The site pan Ex.PW-8/B was prepared. The accident ridden vehicle alongwith documents were taken into possession. 4. The occupants of the vehicle were PW-5 Pawari and one Jaishi Ram. Pawari received simple injuries on his person whereas Jaishi Ram succumbed to his injuries. The postmortem on the dead body of the deceased was got conducted. The injured Pawari was also subjected to medical examination. On completion of investigation, challan was submitted against petitioner for offences punishable under Sections 279, 337, 304-A IPC and Section 181 of the Motor Vehicles Act. 5. The notice of accusation was put to the petitioner. He denied the accusation and claimed trial. The prosecution has examined eight witnesses and produced some documents. The statement of petitioner was recorded under Section 313 Cr.P.C. He denied the prosecution case but did not lead any evidence in defence. 6. 5. The notice of accusation was put to the petitioner. He denied the accusation and claimed trial. The prosecution has examined eight witnesses and produced some documents. The statement of petitioner was recorded under Section 313 Cr.P.C. He denied the prosecution case but did not lead any evidence in defence. 6. On conclusion of trial, the learned Chief Judicial Magistrate convicted and sentenced the petitioner on 17.11.2005 for offences as noticed above. The learned Sessions Judge on 5.7.2006 affirmed the conviction and sentence dated 17.11.2005 recorded by learned Chief Judicial Magistrate, hence revision. 7. I have heard Mr. Romesh Verma, Advocate, learned counsel for the petitioner and learned Deputy Advocate General appearing on behalf of the respondent and have also gone through the record. Mr. Verma has submitted that the two Courts below have misconstrued and misinterpreted the evidence. It has not been appreciated that accident did not take place due to rash and negligent driving of the petitioner. The cause of accident was rain and sinking of danga. 8. The learned counsel for petitioner further submitted that Driving Licence was not put to the petitioner in statement under Section 313 Cr.P.C. The conviction of petitioner on this ground alone under Section 181 of the Motor Vehicles Act is not sustainable. He has submitted that if two views are possible from the evidence then the view which is favourable to the accused that should have been taken while deciding the case by the two Courts below but this legal position has been ignored by the courts below. The learned counsel for the petitioner has ultimately submitted that in any case the sentence awarded to the petitioner is harsh, the petitioner is entitled to benefit of probation keeping in view the age of the petitioner who was 24 years of age at the time of accident. 9. The learned Deputy Advocate General has supported the impugned judgment. He has submitted that the two Courts below have rightly appreciated the material on record. There is no evidence that accident took place due to rain or sinking of the danga. The suggestions given to the witnesses in cross-examination is no evidence. The vehicle went off the road, it is for the petitioner to establish how the accident had taken place. He has submitted that one person has lost life in the accident due to rash and negligent driving of the petitioner. The suggestions given to the witnesses in cross-examination is no evidence. The vehicle went off the road, it is for the petitioner to establish how the accident had taken place. He has submitted that one person has lost life in the accident due to rash and negligent driving of the petitioner. The two Courts below have already taken lenient view in awarding the sentence. The petitioner is not entitled to any further leniency in the matter of sentence. 10. In order to appreciate the rival contentions it is necessary to refer to evidence. PW-1 Dheeraj Sharma has stated that he is the owner of vehicle No.HP-02-8909. He had engaged petitioner as driver 4-5 days prior to the accident. He had sent the petitioner to Dharampur on 29.7.2003. At about 12.30 p.m. he received a telephone that the vehicle had met with an accident near Pine Grove School. He reached the spot and found that the vehicle had gone down in the fields. The police was already on the spot. There were three persons in the vehicle including driver. One of them died and other one was referred to Chandigarh. The petitioner had also received some injuries. In cross-examination he has stated that there was little rain on that day. On the spot the road was kachha and had sunk. There was a truck parked on the hill side which had broken down. The traffic was moving from one side. 11. PW-2 Jagdish Kumar has stated that in the year 2003 he was posted as HHG at Police Station, Dharampur. He went to the spot alongwith ASI. There were three persons in the vehicle including driver who were taken to CHC, Dharampur for medical treatment. The vehicle had gone 100-150 feet down. The road on the spot was pacca 14 feet wide and kachha 4 feet wide. On spot verification, it was found that the accident took place due to rash and negligent driving of the petitioner. In cross-examination he has stated that it was raining on that date. The road had sunk a little bit on the spot from where the vehicle had rolled down. He denied that a truck was parked there on the spot. 12. In cross-examination he has stated that it was raining on that date. The road had sunk a little bit on the spot from where the vehicle had rolled down. He denied that a truck was parked there on the spot. 12. PW-3 HC Ram Lal has proved rapat No.7 Ex.PW-3/A. He has further stated that on the basis of ruka he recorded the FIR Ex.PW-3/B. PW-4 Jaswant Singh is the Mechanic working in the HRTC, he mechanically examined Tata Sumo No.HP-02-8909 on 30.7.2003 and gave report Ex.PW-4/A. In cross-examination he has stated that on the spot the road had sunk. 13. PW-5 Pawari has stated that 1½ years ago he was going towards Dharampur from Garkhal in a taxi which was being driven by petitioner. One more person was in the taxi. The petitioner was driving the vehicle in high speed. The petitioner tried to overtake another vehicle in high speed. In the meantime a vehicle came from the opposite side and in the process the petitioner could not control and his vehicle rolled down. He sustained injuries on various parts of the body. He was treated at Dharampur and PGI, Chandigarh. The accident took place due to the negligence of the petitioner. In cross-examination he has stated that on that date it was raining. The road was kachha on the spot. He denied that the accident took place due to the sinking of the road. He also denied that on the spot there was a truck which had broken down and the vehicles were crossing from one side. He denied that the accident did not take place due to the negligence of the petitioner. 14. PW-6 HC Raghubir Singh has stated that on receiving the information he reached the spot alongwith ASI Rattan Chand. The injured Jaishi Ram, Pawari and Dinesh were taken to CHC, Dharampur, their MLCs were obtained. Injured Pawari was referred to PGI, Chandigarh and Jaishi Ram died in the hospital. He prepared Panchnama Ex.PW-6/A. The MLC of Pawari is Ex.PX. The postmortem report of deceased Jaishi Ram is Ex.PZ. 15. PW-8 ASI Rattan Chand Kanwar is the Investigating Officer. He has stated that on 29.7.2003 an unknown person reported the police that near Pine Grove School Tata Sumo had met with an accident. He and other police officials reached the spot. The postmortem report of deceased Jaishi Ram is Ex.PZ. 15. PW-8 ASI Rattan Chand Kanwar is the Investigating Officer. He has stated that on 29.7.2003 an unknown person reported the police that near Pine Grove School Tata Sumo had met with an accident. He and other police officials reached the spot. He prepared ruka Ex.PW-8/A, spot map Ex.PW-8/B. He took photographs Ex.P-1 to Ex.P-7, negatives are Ex.P-8 to Ex.P-14. He found negligence of the petitioner. In cross-examination he has stated that ruka was written on the basis of factual position. There was no eye witness to the accident on the spot. The danga had sunk at the place of accident. He denied that accident took place due to sinking of the road. He denied that a broken down truck was parked on one side. 16. The petitioner in his statement under Section 313 Cr.P.C. has denied the prosecution case. He has not projected any positive case as a result of which accident took place. He has simply stated that he has been falsely implicated in the case. It emerges from the cross-examination of various prosecution witnesses and the submission made by learned counsel for the petitioner that according to petitioner the accident took place due to rain, sinking of road and danga at the place of accident. It has come in the evidence that at the time of accident petitioner was driving the vehicle. There were two more occupants in the vehicle including PW-5 Pawari and Jaishi Ram, who died in the accident. 17. PW-5 Pawari is the most important witness. This witness was not only sitting in the vehicle but sustained several injuries. He has stated that petitioner was driving the vehicle in high speed. The petitioner tried to overtake the another vehicle in high speed but in the meantime a vehicle came from the opposite side, the petitioner lost the control of his vehicle which rolled down. This witness very fairly stated in the cross-examination that on that date it was raining, some part of the road was kachha but he specifically denied that accident took place due to the sinking of the road. 18. The defence has given suggestion to various prosecution witnesses that a broken down truck was parked on one side of the road of the hill side as a result of which traffic was proceedings on one side. 18. The defence has given suggestion to various prosecution witnesses that a broken down truck was parked on one side of the road of the hill side as a result of which traffic was proceedings on one side. The suggestions given to the witnesses in defence are not substitute of the evidence. There is no evidence on record that any truck in broken condition was parked on one side of the road. PW-2 Jagdish Kumar has stated that on the spot the pacca road was 14 feet wide; in addition there was 4 feet kachha road. Thus, total 18 feet pacca and kachha road was on the spot. This witness has not been cross-examined on the width of the road. Assuming that a truck was lying parked on one side of the road, such truck would not take space more than 7/8 feet. There was sufficient space for crossing the other vehicles including the vehicle of the petitioner which he was driving. 19. The prosecution case appears to be truthful, according to prosecution petitioner was driving the vehicle in high speed, he tried to overtake another vehicle in high speed. In the meantime a vehicle came from opposite side and in the process the petitioner lost control of his vehicle and his vehicle rolled down. Assuming further that a portion of the danga and road had sunk but it is not the case of the petitioner that how much road and danga had sunk. The sinking of one side of the road and danga in rainy season is not uncommon on hill roads. The driver on the hill road is required to be more careful, during rain extra care is required from driver. The petitioner despite rain did not take all safety precautions. He in his anxiety to overtake another vehicle lost control of his vehicle which rolled down. In the accident Jaishi Ram died and PW-5 received several injuries. The petitioner himself sustained some injuries. The scope in revision is very narrow. 20. In Raj Kumar vs. State of Himachal Pradesh 2000 (2) Shim.L.C. 422 , it has been held that revisional power cannot be equated with the power of an appellate Court nor can it be treated even as a second appellate jurisdiction. The petitioner himself sustained some injuries. The scope in revision is very narrow. 20. In Raj Kumar vs. State of Himachal Pradesh 2000 (2) Shim.L.C. 422 , it has been held that revisional power cannot be equated with the power of an appellate Court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. 21. The evidence in the present case has been considered only to see whether the findings recorded by the two Courts below are in accordance with the evidence. In the facts and circumstances of the case, it cannot be said that the Courts below have ignored any material evidence or based findings on the basis of some inadmissible evidence. The two Courts below have rightly recorded the findings of facts and concluded that the petitioner was negligent in causing the accident. 22. The learned counsel for the petitioner has submitted that it was not put to the petitioner under Section 313 Cr.P.C. that he was not holding driving license at the time of accident. He has stated that in absence of this question the Courts below have erred in convicting and sentencing the petitioner under Section 181 of the Motor Vehicles Act. 23. In State of Rajasthan vs. Kashi Ram (2006) 12 SCC 54, the contention was raised that statement of PW-2 was not specifically put to the accused when he was examined under Section 313 Cr.P.C. The Supreme Court held that may be so, but in the facts of the case, by such omission no prejudice has been caused to the appellant. PW-2 had deposed in his presence and was exhaustively cross-examined by counsel appearing from him. PW-2 regarding his having seen the deceased last in the company of the respondent was not even challenged in his cross-examination. Moreover, from the trend of the answers given by the respondent in his examination under Section 313 Cr.P.C, it appears that the respondent made only a bald denial of all the incriminating circumstances put to him, and had no explanation to offer. Moreover, from the trend of the answers given by the respondent in his examination under Section 313 Cr.P.C, it appears that the respondent made only a bald denial of all the incriminating circumstances put to him, and had no explanation to offer. 24. In the present case PW-8 ASI Rattan Chand Kanwar has stated that petitioner could not produce the licence. This statement of PW-8 was not challenged in the cross-examination. The learned counsel for the petitioner has stated that the petitioner has placed licence on record before the Ist appellate Court but such licence has not been proved. There is no order of the appellate Court for taking in evidence licence placed by the petitioner on record. The fact remains that the licence of the petitioner has not come on record. Therefore, it cannot be said that the two Courts below have erred in convicting and sentencing the petitioner even under Section 181 of the Motor Vehicles Act. 25. The learned counsel for the petitioner has submitted that the sentence imposed by the two Courts below is harsh, the benefit of probation has not been considered. He has relied Ram Rattan vs. State of Himachal Pradesh 1989 (1) SLC 359 where the accused was released on probation of good conduct on execution of a bond in a case under Section 304A IPC. 26. In Dalbir Singh vs. State of Haryana (2000) 5 SCC 82 , the Supreme Court has held that 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 304-A IPC 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. 27. The Supreme Court also held that a professional driver should not take a chance thinking 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 the vehicle he cannot escape from a 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 the vehicle he cannot escape from a jail sentence. In the present case, the vehicle involved was taxi and therefore, no lenient view can be taken for releasing the petitioner by giving him benefit of probation. There is no merit in the revision. 28. In view of above discussion, the revision fails and is accordingly dismissed. The bail bonds of the petitioner are cancelled. He is directed to surrender to the trial Court immediately to serve out the immediately taken to CHC Dharampur for medical treatment. The driver of vehicle No.HP-02-8909 had received minor injuries. He disclosed his name Dinesh Kumar sentence imposed.