1. Petitioner Kishanbhai Jinubhai Gavit is convicted of the offence Under Section 279 I.P.C. as well as Under Section 117 of the Motor Vehicles Act, and is sentenced to imprisonment till the rising of the Court and fine of Rupees 500 i.d. R.I. for two months.
2. According to the case for the prosecution, the petitioner was driving a bus No. GTA 4379, proceeding from Nasik to Balsad, in the evening of 22-4-1975. The bus was approaching a bus stop near Point Fata. Another bus had halted at the bus stop. There were two ladies by name Rajubai and Leelabai, walking by the left side of the road, interested in boarding the halted bus. In the' act of the stopping of the bus No. 4376 behind the already halted bus, the accused dashed against Rajubai, as a result of which she fell down. Although she did not suffer any visible external injury, she complained of pain in the back. A panchanama of the spot also discloses that a hawker in plantains sitting at the bottom of a neem tree nearby got some of his plantains crushed under the bus. After the accident the petitioner was arrested, he was suspected of being under the influence of drink; he was sent to the Medical Officer, where a certificate given disclosed that he had his pupils dilated, gait unsteady, speech incoherent and he smelt of alcohol. Both the courts below came to the conclusion that the accused was not rash in driving the bus, however, he was negligent in his driving. He was also driving under the influence of the drink and therefore offences Under Section 279 I.P.C. and Section 117 of the Motor Vehicles Act, were complete.
3. Mr, Gangal, the learned counsel for the petitioner, now says that the conviction Under Section 117 M. V. Act, cannot be sustained. He relied upon a decision reported in Bacchubhai v. State of Maharashtra, : (1971)3SCC930 . He also says that the evidence is insufficient for proving the negligence. According to him, the evidence given by Rajubai and Leelabai, cannot be accepted as wholly true.
4. Apart from the oral evidence given by the witnesses of their impression regarding the accused having been drunk at the time of the driving, the prosecution case in that connection rests on the certificate given by the Medical Officer. Obviously, no blood test was carried out, nor was any urine test taken. In such circumstances Mr. Gangal strongly relies upon the decision of the Supreme Court quoted above. In that case also, the appellant was convicted of rash and negligent driving mostly on the basis of the certificate from the Medical Officer. The certificate showed alcoholic smell, unsteady gait, dilation of pupils and incoherent speech. The finding of the High Court that the appellant was drunk, was not confirmed by the Supreme Court by making the observations as follows:
It seems to us that on this evidence it cannot be definitely held that the appellant was drunk at the time the accident occurred.
5. While arriving at this conclusion, the learned Judges of the Supreme Court took into consideration that the symptoms of gait being unsteady could very well be if a person is in a nervous strain. The Supreme Court also observed that mere smelling of alcohol would not show that a man is under the influence of drinking. Unfortunately, the Supreme Court has not spoken about the competitive reasons for holding dilations of pupils or the incoherent speech as not necessarily due to a person being under the influence of drink. It appears that in the opinion of the Supreme Court, when urine test and the blood test were not done symptoms mentioned in the certificate were not conclusive of proving that the appellant was, under the influence of drink. I suppose Mr. Gangal casa take benefit of this ruling although an unhappy feeling a rises whether all the four symptoms taken together do or do not always amount to a person being under the influence of drink.
6. There is no reliable oral evidence in addition to the certificate of the Medical' Officer for speaking of the behaviour or of the actions of the present revision petitioner for conclude that he was under the influence of drink. As the matter stands, in view of the ruling quoted above, it would be difficult to maintain the finding that the petitioner was driving under the influence of drink, Consequently, the conviction Under Section 117 of the Motor Vehicles Act, will have to be set aside.
7. As regards the conviction Under Section 279 I.P.C., there are two bold facts, one is that Rajubai received a dash; she fell down and the plantains of the hawker near about also got crushed. It is quite evident that the bus was on the left side of the road and the two women were further to the left side of the bus. It may be that initially Leelabai was to the right of Rajubai but in their hurry to proceed towards the halting bus, they may have changed their positions so that a part of the bus came in contact only with Rajubai, On this factual evidence, both the courts have spoken of the negligence of the accused though not taking the rashness proved. In the Revision Petition, I do not feel that, material has been brought on record to discard that finding. Consequently, the conviction Under Section 279 I.P.C. will haw to be maintained.
8. Mr. Gangal, however, points out that the accused has an unblemished service and is an S. T Driver in Gujarat State for a long time and there should be considerations regarding the continuation of his service, while passing the sentence. Rajubai has not suffered any external injury and no drastic results unfortunately have come out. I therefore, feel, that leniency would not be wasted, Hence the order:
The Revision Application is partly allowed The conviction raider Section 117 of the Motor Vehicles Act, is set aside. The conviction under & 279 IJP.C. is maintained foot the punishment is modified so that the accused to pay a fine of Bs. 49 i.d. R.I. for one month. Bail bond cancelled. Excess fine paid to be refunded.