Decided on March 15,1988

Fatehmohmed Aliyasbhai Samanti Appellant


M.B.SHAH - (1.)Being aggrieved and dissatisfied by the order dated 3/09/1984 passed by the Sessions Judge Banaskantha District at Palanpur in Criminal Appeal No. 12 of 1984 the petitioner-accused has filed this revision application
(2.)It was the prosecution case that the petitioner was driving one bus belonging to the Agricultural University Dantiwada on 9-9-1981 at about 7-30 p. m. He was going from Palanpur to Dantiwada. When he came near village Chadotar on the Highway two persons were found walking ahead of him on the edge of the tar road. It is the prosecution version that he was driving the bus rashly and negligently. He knocked down one person named Vaghari Ujambhai Punjabhai who died on the spot. The complaint was filed by Virabhai Mohanbhai at about 8 a.m. at the police station. After die investigation the accused was charge-sheeted before the Chief Judicial Magistrate Palanpur. The case was transferred to the Judicial Magistrate First Class Palanpur. After taking into consideration the evidence of the eye-witnesses and other witnesses the Judicial Magistrate First Class Palanpur by his judgment and order dated 9-1-1984 convicted the petitioner for the offences punishable under Secs. 304A and 279 of the Indian Penal Code and Secs. 112 & 116 of the Motor Vehicles Act and imposed S.I. for six months and a fine of Rs. 200.00 in default S. I. for 15 days. Against the said judgment and order the petitioner preferred Criminal Appeal No. 12 of 1984 before the Sessions Court Banaskantha. After elaborate discussion of evidence and the law the learned Sessions Judge dismissed the appeal and confirmed the order of conviction and sentence passed by the Judicial Magistrate. He arrived at the conclusion that it cannot be said that the sentence was in any way excessive inadequate or unjust.
(3.)At the time of admission of this revision application the following order was passed:
" Learned Advocate for the petitioner states that the petitioner is not pressing this revision application on merits but be merely prays that the petitioner may be released on probation under Sec. 340 of the Criminal Procedure Code. Rule to this limited extent. Same bail fresh bonds."
In this view of the matter it is clear that the learned Advocate for the petitioner had not challenged the conviction order of the petitioner. At the time of hearing of this matter also tEe learned Advocate for the petitioner had not challenged the said conviction order but he submitted that the petitioner should be released on probation. He also relied upon the report of the Probation Officer wherein the Probation Officer has report that taking into consideration the age of the accused and economical and financial position of the accused he may be released under Sec. 4 of the Probation of Offenders Act. In my view taking into consideration the conduct of the accused and the defence taken by him at the time of trial that he was not the driver of the said vehicle at the relevant time and also the nature of offence and the fact that one person has lost the life this would not be a fit case for releasing the petitioner on probation. Mr. Mehta learned Advocate for the petitioner however vehemently submitted that in the cross-examination of hostile witnesses it has been pointed out that it was their version before the police that at the relevant time one tanker came from the opposite direction and to avoid accident the petitioner bad taken turn on the left side which has caused this accident. In my view this submission is without any substance. As such there was no suggestion by the defence to any of the eye witnesses that from the opposite direction one tanker with full speed was coming and to avoid dash with the said tanker the petitioner was required to take a turn on the left side. As such the evidence on record clearly reveals that the petitioner was driving the bus rashly and negligently. The learned Sessions Judge has rightly considered the defence of the petitioner that be was not the driver of the said bus by which the accident had taken place. In my view the petitioner has taken a false defence that he was not the driver of the bus and that he had not stopped the vehicle at the relevant time would be a factor for not reducing the sentence or for not releasing the petitioner on probation.

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