B.S.YADAV, J. - (1.) THE present petitioner Dal Chand was convicted under Section 304-A, 338 and 337, Indian Penal Code by the Additional Chief Judicial Magistrate, Gurgaon. He was sentenced to various terms of imprisonment for the above offences. The maximum sentence was of two years awarded to him under Section 304-A, Indian Penal Code. All the sentences were, however, ordered to run concurrently. Against the aforesaid convictions and sentences the petitioner filed an appeal which was heard by the learned Additional Sessions Judge, Gurgaon, who did not find any merit in the same and dismissed it. Dissatisfied, the petitioner has come to this Court in revision.
(2.) THE brief facts of the prosecution case are that Dal Chand petitioner was driver of bus RJD-2461. On June 24, 1978 at about 2-30 P.M. that bus left Ferozepur Jhirka for Nagar. When the bus was going down the slopes of Bassi Ghati, some cattle were seen on the road. The bus was going at fast speed. Driver Dal Chand instead of applying brakes, swerved the bus to his right to save the cattle. The road was narrow at that point and the bus over-turned and fell in the nallah. One passenger died at the spot while thirteen other passengers received injuries. Two of the injured later on succumbed to their injuries. P.W. 5 Bhogla left for police station Ferozepur Jhirka. In the way, P.W. 16 A.S.I. Ram Singh met him and recorded his statement Ex. PU. The said police officer sent it to the police station from the registration of the case and on its basis formal first information report was recorded by A.S.I. Mit Singh. After necessary investigation, the petitioner was charge-sheeted. At the close of the prosecution evidence, the petitioner was examined under Section 313, Code of Criminal Procedure, 1973. He pleaded that he was driving the bus at a slow speed and it was under his control but when the bus was going down the slopes the main front leaf gave way. Some cattle came in front of the bus. In order to save the cattle he swerved the bus to his right and the road being narrow, the bus over-turned. He came to know of the broken leaf only when he applied the brakes. According to him, the accident occurred all of a sudden and not on account of his negligence. In his defence, the petitioner examined Ashok Kumar who was the conductor of the ill-fated bus at the relevant time. He supported the plea taken by the petitioner. Both the learned courts below have come to a concurrent finding that the accident occurred on account of the rash and negligent driving of the bus by the driver. In such circumstances, the evidence cannot be reappraised again as urged by the learned counsel for the petitioner. In this respect reference can be made to State of Orissa v. Nakula Sahu and others, AIR 1979 S.C. 663, as under :- "So far as the first point is concerned, it is to be emphasised that although the revisional power of the High Court under Section 439 read with Section 435 of the Code of Criminal Procedure, 1898, is as wide as the power of Court of Appeal under Section 423 of the Code, it is now well settled that normally the jurisdiction of the High Court under Section 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has subsequently resulted in flagrant miscarriage of justice. Reference in this connection may be made to the decisions of this Court in Amar Chand Agarwalla v. Shanti Bose (1973) 4 SCC 10 : (AIR 1973 SC 799) and Akalu Ahir v. Ramdeo (1973) 2 SCC 583; (AIR 1973 SC 2145). In the latter case viz; Akalu Ahir v. Ramdeo Ram (supra) this Court following its earlier decision in Amar Chand Agarwalla v. Shanti Bose (supra) held that in spite of the wide language of Section 435 of the Code of Criminal Procedure, 1898, which empowered it to satisfy itself to the correctness, legality or propriety of any findings, sentence or order recorded or passed by any inferior court situate within the limits of its jurisdiction and as to the regularity of any proceedings of such inferior court and in spite of the fact that under Section 439 of the Code it can exercise inter alia the power conferred on a court of appeal under Section 423 of the Code, the High Court is not expected to act under Section 435 or Section 439 as it is hearing an appeal." In the present case I do not find any miscarriage of justice.
(3.) EVEN on merits, I do not find any ground to up-set the concurrent findings of the learned courts below. P.W.5 Bhogla and P.W. 6 Pyare Lal, who were travelling in that bus have, of course, not supported the prosecution version and they turned hostile to the prosecution. It is to be noted that the present case was registered on the basis of the statement of Bhogla (P.W.5) and surprisingly enough he has resiled from it. P.W.7 Girraj Parshad, P.W. 8 Amin Chand; P.W. 9 Neelam Rani; P.W. 10 Shauri; P.W. 11 Duli Chand; P.W. 12 Kishan Chand who were travelling in the ill-fated bus have supported the prosecution story in all material particulars. From the statements of these witnesses, it is clear that the bus was over-loaded. Some passengers was sitting even on the roof of the bus. It is further to be noted that there was curve in the road and after the bus had negotiated it, then some cattle were found present on the road. It appears that even while negotiating the curve, the petitioner had not slowed down. The accident had not taken place immediately after negotiating the curve as is clear from the plan on the file. It took place at a little distance from it. As the speed of the bus was fast and was over-loaded, the driver might not have applied the brakes fearing that it might turn turtle. In such circumstances, it is clear that the petitioner was rash and negligent in driving bus.;