Judgment 1. In this revision petition the challenge is to the Judgment and Order dated 24.9.2011 passed by the learned Presiding Officer, Fast Track Court, Kollegala whereby, the Appellate Court concurred with the Judgment of conviction and order of sentence passed by the learned JMFC, Kollegala on 10.11.2010 in C.C.No.254/2005, convicting the accused for the offences punishable under Ss.279, 337 and 304-A IPC and sentenced him to undergo imprisonment and pay fine, with default stipulation. 2. The material facts leading to the trial of the petitioner, with reference to the rank of the parties in the Trial Court are that; a) On 21.11.2004, at about 3.30 p.m., the accused was driving bus bearing No. KA-10-A-6399 from Mysore to Kollegala. At Tagarapura Village, on the main road, bus was dashed to a Basari tree standing on the right side of the road. One Nagendra of Tagarapura Village sustained grievous injury to his chest, neck and body. Injured Nagendra succumbed to the injury sustained in the accident. 15 to 20 persons, who were travelling in the bus as passengers also sustained injuries. A TVS moped and bicycle parked at the accident spot were damaged. PW-1 lodged complaint/Ex.P1. PW19 registered the case and sent FIR/Ex.P29 to the Court. PW-20/Investigation Officer, reached the accident spot, prepared the sketch, seized the vehicles etc., recorded the statements of the injured and other persons and on completion of investigation filed charge sheet against the accused for the offences punishable under Ss.279, 337 and 304-A IPC. b) The prosecution in order to substantiate the allegations, examined Pws.1 to 20, marked Exs.P1 to P30 and MOs.1 and 2. The accused when examined under S.313 Cr.P.C., denied the incriminating material brought against him. However, he submitted a written statement, in which he took the stand that the vehicle pulled to the right side and made effort to stop the vehicle did not materialize, the vehicle dashed to a tree, he also sustained grievous injury and took treatment in a hospital at Mysore. According to the accused the accident did not occur because of his negligence. The accused did not adduce any defence evidence. Learned Magistrate upon appreciation of evidence held that the prosecution has proved the guilt of the accused beyond all reasonable doubts. As a result, the accused was convicted for the offences punishable under S.279, 337 and 304-A IPC. According to the accused the accident did not occur because of his negligence. The accused did not adduce any defence evidence. Learned Magistrate upon appreciation of evidence held that the prosecution has proved the guilt of the accused beyond all reasonable doubts. As a result, the accused was convicted for the offences punishable under S.279, 337 and 304-A IPC. The accused was sentenced for the offence under S.279 IPC to pay fine of Rs.1,000/-, in default, to undergo simple imprisonment for a period of 2 months. The accused was sentenced for the offence under S.337 IPC to pay fine of Rs.500/-in default, to undergo simple imprisonment for one month. The accused was sentenced for the offence under S.304-A IPC to undergo simple imprisonment for a period of 6 months. c) Accused filed Crl.A.No.46/2010 in the Sessions Court assailing the judgment of conviction and order of sentence. Learned Appellate judge by concurring with the findings recorded by the learned Trial judge, dismissed the appeal. This Criminal Revision Petition is directed against the said judgments and orders. 3. Sri T. Prakash, learned advocate urged as follows: i) There is no direct evidence showing that the accused was driving the offending bus at the time of the occurrence of accident. ii) Even if it is held that the accused was the person who was driving the Bus at the relevant time, still there is no evidence to prove that he drove the bus rashly and negligently endangering human life. Reliance was placed on the decisions in the cases of Jacob Mathew vs. State of Punjab, ( AIR 2005 SC 3180 ) and Naresh Giri vs. State of M.P., (2007 AIR SCW 7104). It was submitted that in the absence of credible evidence with regard to the rash and negligent acts, the conviction and sentence as per the impugned judgments being illegal, interference is warranted. iii) That the petitioner faced prosecution for nearly 7 years and has undergone trauma and that he has family obligations to discharge. Reliance was placed on the decision in the case of A.P Raju Vs. State of Orissa, (1995 SCC (Cri) 675) and it was submitted that, benefit of S.4 of the Probation of Offenders Act, 1958 may be extended. 4. Reliance was placed on the decision in the case of A.P Raju Vs. State of Orissa, (1995 SCC (Cri) 675) and it was submitted that, benefit of S.4 of the Probation of Offenders Act, 1958 may be extended. 4. Sri Vijayakumar Majage, learned HCGP, on the other hand, contended that the analysis of the evidence made by the learned Trial Judge and by the learned Appellate Judge is neither perverse nor illegal. He submitted that there is ample evidence on record, that the incident took place due to rash and negligent driving of the bus by the accused and that the concurrent finding recorded by the Courts below do not warrant any interference in exercise of the revision by this Court. He submitted that in the facts and circumstances of the case the accused is not entitled to benefit of the provision under S.4 of the P.O. Act, 5. Perused the record. The point for consideration in the light of the submissions made by the learned advocates is; Whether the impugned judgments and Orders are perverse or illegal and warrant any interference? 6. PW-1 is the complainant. Ex.P1 is the complaint. He is also a pancha to the spot mahazar/Ex.P2. He was a resident of Tagarapura village and his evidence discloses that he witnessed the accident. He has said that the bus coming from Mysore hit one person standing near the tree and dashed to the tree and that the passengers in the bus also sustained injuries and were shifted to hospital. 7. PW-3 is the brother of deceased Nagendra. He has said that, after receiving the message of accident, he went to K.R. Hospital and found his brother having succumbed due to the injury sustained in the accident. 8. PW-4 is a pancha to Ex.P2, the spot mahazar. He has said that, he is the owner of bicycle/MO-2 and his evidence discloses that the police visited the spot, drew up the mahazar Ex.P2, seized the damaged moped and bicycle from the spot. His evidence reveals that the bus dashed to the tree and remained there itself. 9. PW-5 is a passenger in the offending bus. He has said that the accused drove the bus in high speed and dashed to a tree standing on the right side of the road and that he sustained injury on his head and took treatment at Kollegala hospital. 9. PW-5 is a passenger in the offending bus. He has said that the accused drove the bus in high speed and dashed to a tree standing on the right side of the road and that he sustained injury on his head and took treatment at Kollegala hospital. He has said that, many others sustained injuries due to the accident and one person died. 10. PWs.6, 9, 10, 11, 12, 13, 16, 17 and 18 were travelling in bus and their evidence discloses that the accused drove the bus and dashed to a tree and all of them sustained injuries. 11. PW-19 has said that, on the date of incident he was serving as Head Constable in Terakanambi Police Station, received the complaint/Ex.P1 and registered the case. FIR is Ex.P21. 12. PW-20 conducted part of the investigation. He has said that, he had been to the spot after receipt of information about the occurrence of accident and also the fact of receiving information about the death of injured i.e., Nagendra, on account of injury sustained in the accident and forwarding of the case file to the Circle Inspector for further investigation. 13. Exs.P4 to P24 are the medical certificates of the injured passengers. Ex.P3 is the inquest mahazar and Ex.P25 is the P.M. report of deceased Nagendra. Ex.P26 is the IMV Report. Exs. P3 to P26 have been marked by consent. When questioned under S.313 Cr.P.C., the accused has submitted written statement, wherein he has admitted that, he was the driver of the bus KA-10-6399 on 21.12.2004 from Mysore to Kollegala and that, near Tagarapura vehicle suddenly pulled to the right side, his effort to stop the vehicle did not materialize, the vehicle dashed to a tree, he also sustained grievous injuries and took treatment in the hospital at Mysore. In view of the admission of the accused in terms of S.58 of the Evidence Act, 1872, facts admitted need not be proved. Hence, the first contention of Sri T. Prakash has no merit. 14. Sri T. Prakash, contended that, due to the mechanical failure the accident has taken place and not due to any rash or negligent act of the petitioner. The contention is devoid of merit in view of the evidence of PW.1 and the evidence of passengers of the bus, noticed supra. IMV report/Ex.P26 was marked by consent. 14. Sri T. Prakash, contended that, due to the mechanical failure the accident has taken place and not due to any rash or negligent act of the petitioner. The contention is devoid of merit in view of the evidence of PW.1 and the evidence of passengers of the bus, noticed supra. IMV report/Ex.P26 was marked by consent. It has been opined in Ex.P26 that the cause of the accident was not due to any mechanical defect of the vehicle. IMV has found that the bus has damages on its front side. The accused has not adduced any evidence in support of the plea of mechanical failure resulting in occurrence of the accident. Thus, the fact that the accused was the driver of the offending bus, the occurrence of the accident in question and the sustaining of injuries by several passengers and death of one person is well established. 15. The case of Jacob Mathew (supra), related to medical negligence. It was held therein that, it must be shown that the accused doctor did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do so and that the hazard taken by the accused doctor should be of such a nature that, injury which resulted was most likely imminent. The said decision has no application of whatsoever nature to the instant case relating to rash and/or negligent driving of bus. 16. In the case of Ravi Kapur vs. State of Rajastan, (2012 AIR SCW 4659), Apex Court has observed that, a person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result and that it may not always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently and that even when one is driving a vehicle at slow speed, but, recklessly and negligently, it would amount to rash and negligent driving within the meaning of the language of S.279 IPC. It has been further held as follows: 10. … That is why the legislature in its wisdom has used the words ‘manner so rash or negligent as to endanger human life’. It has been further held as follows: 10. … That is why the legislature in its wisdom has used the words ‘manner so rash or negligent as to endanger human life’. The Preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated under Section 279 IPC is attracted. 11. ‘Negligence’ means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case even not doing what one was ought to do can constitute negligence. 12. The court has to adopt another parameter, i.e., ‘reasonable care’ in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others. In view of the above enunciation of law, the decisions reported in ( AIR 2005 SC 3180 ) and (2007 AIR SCW 7104), on which Sri T.Prakash placed reliance, do not advance the case of the petitioner that there was no rash and / or negligent act on the part of the accused. 17. In view of the above enunciation of law, the decisions reported in ( AIR 2005 SC 3180 ) and (2007 AIR SCW 7104), on which Sri T.Prakash placed reliance, do not advance the case of the petitioner that there was no rash and / or negligent act on the part of the accused. 17. Evidence on record discloses that the bus has gone and dashed to a standing tree situated on the right side of the road. Unless, the vehicle had been driven rashly and / or negligently, the vehicle which had no mechanical defect would not have dashed to a standing tree, that too, on the right side of the road. The factum of accident having been admitted in the S.313 Cr.P.C. statement, the legal doctrine res ipsa loquitur gets attracted. The burden of proof with regard to manner of occurrence of accident having shifted to the accused, he has failed to establish the same by placing any evidence. The written explanation offered by the accused when examined under S.313 Cr.P.C., has not been probabalised. 18. Ex.P1 has remained unchallenged. Evidence of PW-1 discloses that a person standing near the tree was hit and the bus thereafter dashed to the right side tree. The presence of PW-1 at the spot has not been disputed. Deceased Nagendra was the person who was standing near the tree. The bus after hitting him has dashed to the standing tree on the right side of the road. Ex. P3/inquest mahazar and Ex.P25/ Post mortem report of deceased Nagendra marked by consent have remained unchallenged. Nagendra having sustained grievous injury due to the accident caused by the accused by the rash and negligent driving of the bus, has succumbed. 19. In view of the abundant evidence brought on record, the prosecution has established the ingredients of Ss.279, 337 and 304-A IPC. The concurrent findings recorded by the Courts below with regard to the guilt of the accused for the charged offences is neither perverse nor illegal, warranting any interference. There are no jurisdictional errors committed by the Courts below. Consequently, the second contention is also devoid of merit. 20. The alternate contention of Sri T.Prakash, by placing reliance on the decision in the case of A.P. RAJU (supra) is also devoid of merit. There are no jurisdictional errors committed by the Courts below. Consequently, the second contention is also devoid of merit. 20. The alternate contention of Sri T.Prakash, by placing reliance on the decision in the case of A.P. RAJU (supra) is also devoid of merit. Therein, occurrence had taken place about fifteen years ago and the accused had remained on bail for more than eight years and in those circumstances, the accused was directed to be released under S.360 Cr.P.C. on probation of good conduct, be of good behaviour and keep peace for a period of one year. The decision has no application to the instant case. 21. Apex Court in the case of State of Karnataka vs. Krishna alias Raju, ( 1987 (1) SCC 538 ), while dealing with the concept of adequate punishment in relation to an offence under S.304-A of the IPC, has held that, considerations of undue sympathy in such cases will not only lead to miscarriage of justice but will also undermine the confidence of the public in the efficacy of the criminal justice dispensation system. 22. In the case of State of Karnataka vs. Sharanappa Basanagouda Aregoudar, ( 2002 (3) SCC 738 ), it has been ruled by the Apex Court that, if the accused are found guilty of rash and negligent driving, Courts have to be on guard to ensure that they do not escape the clutches of law very lightly. The sentence imposed by the Courts should have deterrent effect on potential wrong-doers and it should commensurate with the seriousness of the offence. 23. Apex Court, in the case of State of Punjab Vs. Balwinder Singh, (2012) 2 SCC 182 ), has held as follows: “13. It is settled law that sentencing must have a policy of correction. If anyone 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. Considering the increased number of road accidents, this court, on several occasions, has reminded the criminal courts dealing with the offences relating to motor accidents that they cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act, 1958. We fully endorse the view expressed by this Court in Dalbir Singh, (2000) 5 SCC 82 ). We fully endorse the view expressed by this Court in Dalbir Singh, (2000) 5 SCC 82 ). While considering the quantum of sentence to be imposed for the offence of causing death or injury by rash and negligent driving of automobiles, one of the prime considerations should be deterrence. The persons driving motor vehicles cannot and should not take a chance thinking that even if he is convicted he would be dealt with leniently by the court’. (Emphasis supplied by me) 24. Keeping in view the facts and circumstances of the case, there being no mitigating factors, the sentence imposed on the petitioner is neither irrational nor harsh. Hence, the petitioner is not entitled to the benefit of the provisions of P.O.Act, 1958. For the foregoing reasons, the petition being devoid of merit is dismissed.