JUDGMENT
A.S. Nehra, J.
1. The petitioner was convicted under Section 279 and 304A, Indian Penal Code, and was sentenced to undergo rigorous imprisonment for 4 months under Section 279, Indian Penal Code, and was further sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/- and, in default of payment of fine, to undergo further rigorous imprisonment for 4 months, under Section 304A, Indian Penal Code, by the Additional Judicial Magistrate, Faridabad. Both the substantive sentences of imprisonment were ordered to run concurrently. The appeal filed by the petitioner was dismissed by the Additional Session Judge, Faridabad, on 17.7.1986 with the observations that the petitioner shall undergo imprisonment only under Section 304A, Indian Penal Code.
2. The prosecution case, in brief, is as under:
On 10.5.1983, Madan Lal was standing in front of his house which was under construction in sector 7-A, Faridabad. A boy, namely, Chunu alias Jitender Chopra, who was known to Madan Lal was going on a cycle towards Section 7-A, Faridabad. A bus bearing No. HRU-8298 came from the Delhi side and was going towards Ballabgarh via Sector 10, Faridabad. The bus was being driven by the petitioner at a fast speed rashly and negligently. No horn was blown. The bus struck against the cyclist. Consequently, the boy was run over by the bus. On hearing the alarm Ramesh Chand, Kailash Chander also reached the spot. The boy died as a result of the accident. The bus was taken into possession. The accused-petitioner was arrested. The dead body of the deceased was sent for post-mortem examination. On the statement of Madan Lal PW 5, the case was registered against the petitioner.
3. The prosecution, in its evidence, examined Kailash Chander PW 1, Ramesh Chand PW 2, Dr. M.R. Sharma PW 3, Tej Pal PW 4, Madan Lal PW 5, Sub Inspector Kartar Singh PW 6 DSP Baldev Raj PW 7, ASI Rohtash PW 8 and Rakesh PW 9.
4. Kailash Chander PW 1 and Ramesh Chand PW 2 have not supported the prosecution story. Dr. M.R. Sharma, PW 3 has deposed that, on request Exhibit PA of the police, he conducted post-mortem examination on the dead body of Chunu deceased on 10.5.1983. Exhibit PB is the carbon copy of the report of the post-mortem examination. PW 3 has stated that the cause of death, in his opinion, was shock and haemorrhage resulting from the accident. PW 4 Tej Pal has stated that he conducted examination of the bus. Exhibit PC is the test report submitted by PW 4. Pw-5 Madal Lal has deposed about the accident. He stated that the petitioner was driving the bus, in question, and the same struck against cyclist who fell down and was run over by the bus. Exhibit PD is the report made by PW 5 to the police. PW 5 has further stated that the bus was taken into possession, vide recovery memo Exhibit PE. PW 6 Sub Inspector Kartar Singh has deposed that, on receipt of ruqa Exhibit PD, formal FIR Exhibit PD/1 was recorded. PW 7 Baldev Raj has deposed that, on completion of investigation, he prepared a report under Section 173 of the Code of Criminal Procedure. PW 8 Assistant Sub Inspector has deposed that, on 10.5.1983, statement Exhibit PD of Madan Lal was recorded by him and the same was sent to the police station, vide endorsement Exhibit PD/2, on the basis of which the formal FIR was recorded, PW 8 also prepared site-plan Exhibit PW 7. PW 9 Rakesh has deposed that, vide receipt Exhibit PW 7/C, the dead body of Chunu was received by him after the post-mortem examination. Photographs, Exhibits P 1 to P 5 and negative, Exhibits P 6 to P 11, were produced.
5. The petitioner, in his statement under Section 313 of the Code of Criminal Procedure, has admitted that he was driving Bus No. HRU 8289 and the same struck against the child; that he started from the Housing Board after taking the passengers; that hardly a distance of 200 yards was covered when a child, who was on a cycle, came in the middle of the road and struck against the bus; that he was not at fault; and that the accident took place due to rash and negligent driving.
6. The learned Counsel for the petitioner has contended that PW 1 Kailash Chander and PW 2 Ramesh did not attribute any incriminating role to the petitioner and, therefore, the conviction of the petitioner cannot be upheld on the incorroborated statement of PW 5 Madan Lai. It is correct that PW 1 and PW 2 did not attribute any incriminating role to the petitioner and their statements are of no assistance to the prosecution in establishing its plea of rash and negligent driving against the petitioner. However, PW 5 Madan Lal has given a clear, unambiguous and clinching support to the prosecution. He very categorically stated that it was the petitioner who was driving the vehicle, in question, at the relevant time; that the petitioner had not blown any horn; and that the bus was being driven on the right-hand side of the road. It is also in his statement that the offending vehicle stopped at a distance of 30-35 yards. He thus did not mince and laid blame very unequivocally on the petitioner. There is no law that ordains that the statement of a witness can be relied upon only if it is corroborated by the testimony of other PWs. It could be that, in such like circumstances, the Court should carefully scrutinize the testimony of that witness. I have examined the statement of PW S Madan Lal from that angle and I find that it deserves to be relied upon. Madan Lal has stated that the bus may have been at a speed of 20 kilometres per hour. The learned Counsel for the petitioner has argued that the said speed could not be said to be rash.
7. Even a faster speed may not be said to be rash if the vehicle is on the Highway and even a lesser speed may be said to be rash if it is in a thickly populated area. The point to be determined in this case is whether the petitioner was rash or negligent in driving the bus at the relevant time. A rash act is primarily an over-hasty act and is thus opposed to a deliberate act but it also includes an act which though it may be said to be deliberate is yet done with due deliberation and caution. Negligence is the breach of a duty, caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs, would do. The argument advanced by the learned Counsel for the petitioner is that the speed of the bus was 20 kilometres per hour and that, therefore, the petitioner was not rash in driving the bus, in question. There is no merit in the argument advanced by the learned Counsel for the petitioner, because PW 5 Madan Lal has categorically stated that the petitioner did not give any horn. It is also transpired from the evidence produced in the case and also on a perusal of the site-plan Exhibit PW 7/A that the accident had taken place near a crossing. It was the duty of the petitioner to slow down the speed of the bus when approaching the crossing. Mere speed is not the criterion to judge the rashness or negligence. Even high speed on a Highway, which is not surrounded by abadi, cannot be said to be a rash act. The petitioner in this case was driving the bus, in question, in a locality and he did not give any horn. Thus, he had committed a breach of a duty imposed upon him.
8. The learned Counsel for the petitioner has further submitted that PW 5 Madan Lal has not seen the occurrence; that he was attracted towards the spot when he heard the noise; and that, thus, the testimony of PW 5 should not be given credence. There is no force in the argument advanced by the learned Counsel for the petitioner. PW 5 Madan Lal had seen the child coming on a cycle, who was known to him earlier. PW 5 stated on oath that he had seen the occurrence. Thus, the question of assuming that the witness was not facing towards the place of occurrence does not arise.
9. The learned Counsel for the petitioner has submitted that the petitioner is entitled to be released on probation under Section 360 of the Code of Criminal Procedure. The learned Counsel for the petitioner has further submitted that the petitioner is a first offender; that there is nothing against his character and antecedents on the record; and that he is a family man and is on bail since 14.8.1986. The offence was committed on 10.5.1983. The Courts below did not give him the benefit of probation. The Legislature, by including the provisions of Sections 360 and 361 in the new Code of Criminal Procedure, intended to reform the offenders, where it is possible, by giving them the benefit of probation. It is only by giving special reasons under Section 361 of the Code of Criminal Procedure that the benefit of probation can be denied by the Courts. Special reasons are to be given by the Courts with regard to age, character and antecedents of the offender and the circumstances in which the offence was committed. The learned Counsel for the petitioner has submitted that, in the instant case, the learned lower Courts did not consider this aspect of the matter.
It is incumbent upon the Courts to give benefit of probation when the offenders are entitled to it under Section 360 of the Code of Criminal Procedure unless the Courts find that the convicts are incorrigible and cannot be reformed. The object of punishment is not only to be retributive but to be reformative. Keeping in view the aforesaid principles, the petitioner is given one chance to reform himself. Accordingly, his conviction is maintained but the sentence of imprisonment and fine is set aside and it is directed that he be released on probation on his entering into a bond in the sum of Rs. 5000/- with one surety in the like amount to the satisfaction of the Trial Court and to appear and receive sentence when called upon during a period of two years and, in the meantime, to keep the peace and be of good behaviour. This revision petition is thus partly allowed.