M.B. Shah, J.
1. The petitioner-accused has filed this revision application against the judgment and order dated 20th January 1983 passed by the Additional City Sessions Judge, Court No. 2, Ahmedabad, in Criminal Appeal No. 199 of 1982 wherein the appeal filed by the petitioner was dismissed and the order passed by the Metropolitan Magistrate, Court No. 3, Ahmedabad on 2nd November 1982 in Criminal Case No. 2866 of 1981 wherein the petitioner was convicted under Section 304-A of the Indian Penal Code and he was sentenced to undergo six months' R. I. and to pay a fine of Rs. 700/- in default, to undergo two months' further R. I. was confirmed.
2. The petitioner-accused was a driver of S.T. bus bearing No. G.T.H. 4079 and he was driving the said S.T. bus on 20th November 1981 at about 12 p. m. and was going from Kalupur to Naroda. At that time one person named Nagindas Ambalal Patel was also going from Kalupur to Naroda side on his scooter bearing No. G.J.M. 1370. The petitioner overtook the said scooterist. At that time the S.T. bus dashed with the scooterist and as a result of this dash the scooterist was crushed by the rear wheel of the said bus. After completing necessary investigation the petitioner was charge-sheeted under Sections 279, 304-A of the Indian Penal Code and Sections 89, 112 and 116 of the Motor Vehicles Act.
3. The Metropolitan Magistrate after recording the necessary evidence came to the conclusion that the petitioner was driving the S.T. bus and tried to overtake the scooter and after overtaking the scooter it took a turn on the left side and dashed with the scooter. He further held that if the S.T. driver had not taken the turn on the left side, then this accident would not have occurred, he relied, upon the evidence of Bachubhai Ambalal. P. W. 1 Ex. 7, who is the complainant and eye-witness. He further relied upon the evidence of Balwantrai Zaverlal Shah, P. W. 2 Ex. 9, who is a panch witness who has deposed that while sitting in the office of Bachubhai one could have seen the accident. The accident had occurred at a distance of 15 ft. from the office of Bachubhai. Against the said judgment and order the petitioner had preferred an appeal before the City Sessions Judge, Ahmedabad. The matter came up for bearing before the Additional City Sessions Judge, Court No. 2, Ahmedabad. In the said appeal it was contended that the learned Magistrate ought not to have relied on the evidence of P. W. 1 Bachubhai because he had changed his version before the Court inasmuch as before the Court he had deposed that he had seen the accident while sitting in his office. His immediate version was that he saw the said accident when he was standing on the footpath outside his office. The learned Additional City Sessions Judge after appreciating the evidence of the only eye-witness Bachubhai cams to the conclusion that the evidence of the said witness cannot be discarded only on the ground of so-called contradiction. He further appreciated the evidence of panch witness and the panchnama which mentions that there was a mark of dash on the left side of S.T. bus. He further held that even on the evidence of sole eye-witness, the learned Magistrate was right in relying upon the said evidence and convicting the accused. Against the said judgment and order, the petitioner has preferred this revision application.
4. The learned Advocate appearing on behalf of the petitioner has strenuously contended that the judgments and orders passed by both the lower Courts are erroneous and illegal because both the Courts have wrongly relied upon the evidence of Bachubhai P. W. 1. He further submitted that the evidence of Bachubhai cannot be relied upon because he has changed his version before the Court. He further submitted that looking to the facts and circumstances of the case that the petitioner is a S.T. driver and if he is convicted, he would lose his job. Therefore, he should be released on probation.
5. In my view, the contention of the learned Advocate appearing on behalf of the petitioner that the lower Courts ought not to have relied upon the evidence of Bachubhai is without any substance. Bachubhai P.W. 1 in his deposition has specifically stated that when he was sitting in his office, he saw this accident. S.T. bus was going from Kalupur to Naroda side. Scooter was ahead of the said bus. S.T. driver overtook the said scooter from its right side and after overtaking it, it again took a turn on the left side thereby it dashed with the scooter. The scooter driver was crushed by the left rear wheel of the S.T. bus. S.T. driver did not stop the bus even though people raised cries. S.T. bus stopped near Swadeshi Mill. In the cross-examination it was suggested to him that in his office he was talking with regard to his business with some other persons and because of noise he came to know that the accident had occurred. He had specifically deposed that he was looking on the road at that time and, therefore, he saw the accident. He had further stated that the accident occurred at a distance of 25 ft. from his shop.
6. Further, looking to the evidence of P.W. 2 Balwantrai who is a panch witness it is clear that the accident had occurred near the shop of witness Bachubhai at a distance of 15 ft. The panchnama also mentions that on the left side of the S.T. bus there was a fresh scratch at a distance of 9 ft. from the front, portion and 21 ft. from the rear portion of the bus. In view of this clear, cogent and consistent evidence it is clear that S.T. driver after overtaking the scooter again turned on the left side and thereby the accident had occurred wherein the scooter driver was crushed. Merely from the minor contradiction that the eye-witness Bachubhai had seen the said accident from his office or while standing on the footpath near his office, it cannot be said that his evidence requires to be discarded. The said contradiction is minor and would not affect in any way his evidence with regard to the main incident. The evidence of this witness is corroborated by the panchnama. In that set of circumstances it cannot be said that the order passed by both the Courts below is illegal or erroneous.
7. The other submission of the learned Advocate for the petitioner that the petitioner should be given benefit of Probation of Offenders Act or under Section 360 of the Criminal Procedure Code deserves to be discarded. In the case of Rattan Singh v. State of Punjab reported in : 1980CriLJ11 the Supreme Court has observed that a deadly spectacle is becoming so common these days in our towns and cities that a truck driver whose lethal hands at the wheel of a heavy automobile has taken the life of a scooterist. More people die of road accidents than by most diseases, so much so the Indian highways are among the top killers of the country. It looks as if traffic regulations are virtually dead and police checking mostly absent. By these processes of lawlessness, public roads are now lurking death traps. The Court has further observed:
This, however, does not excuse the accused from his rash driving of a 'blind Leviathan in berserk locomotion'. If we may adapt the words of Lord Greene, M.R. : 'It scarcely lies in the mouth of the truck driver who plays with fire to complain of burnt fingers'. Rashness and negligence are relative concepts, not absolute abstractions. In our current conditions, the law under Section 304-A I.P.C. and under the rubric of negligence, must have due regard to the fatal frequency of rash driving of heavy duty vehicles and of speeding menaces. Thus viewed. it is fair to apply the rule of res ipsa loquitur, of course, with care. Conventional defences, except under compelling evidence, must break down before the pragmatic Court and must be given short shrift. Looked at from this angle, we are convinced that the present case deserves no consideration on the question of conviction.
In that case the Court while considering the question of sentence had further held that the fact that the petitioner was having a large family to maintain and the proprietor of the truck has left his family in the cold, yet when a life has been lost and the circumstances of driving are harsh, no compassion can be shown.
8. In view of this settled legal position and looking to the facts of the present case that the petitioner, who was driving S.T. Bus with speed overtook the scooter from its right side and thereafter again turned on left clearly shows absolute negligence on the part of the driver. By the said accident a life is lost. Therefore, having regard to the aforesaid circumstances of the case, nature of the offence and in context of escalating crime whereby a number of people die daily of road accidents and that this deadly spectacle is becoming common these days in our towns and cities (as observed in the aforesaid decision by the Supreme Court), I think it would not be desirable to release the petitioner on probation under Section 360 of the Criminal Procedure Code otherwise people may lose faith from judicial system. Judicial instrument has a public accountability and releasing the petitioner on probation may result in cynical disregard of the law which would have its impact on the society. In the result, the revision application is rejected. The petitioner shall surrender to his bail on or before 30th September, 1983.