ORDER
T. Vaiphei, J.
1. The correctness of the judgment dated 6-3-1999 passed by the Ld. Add). Sessions Judge, Belonia, South Tripura in Crl. Appeal No. 6(1) of 1999 upholding the order of conviction and sentence passed by the Ld. Sub-Divisional Judicial Magistrate, Belonia in G.R. No. 49 of 1997 is in question in this revision petition.
2. The material facts leading to the filing of this revision petition may be noted first. On 5-3-1997 at about 9 p.m. the informant, Jubaraj Das and some others belonging to Laogang village had hired a Jeep bearing No. TRT-1557 for going to their village. When the Jeep was about to reach Laogang village market, it fell down on the roadside stream, which resulted in causing injuries to the informant and other passengers. However, one of the passengers, namely, Subhashi Das, fell under the pressure of the vehicle in the accident, was severely injured and succumbed to her injuries on reaching Santirbazar Hospital.
3. It would appear that on the basis of the FIR lodged by the informant, Santirbazar Police Station Case No. 15 of 1997 under Sections 279/338 & 304-A, IPC was registered. After investigation, the police submitted a charge-sheet against the petitioner for the offences punishable under Sections 279/338 & 304-A, IPC before the Ld. S.D.J.M. Belonia to stand the trial. The trial Court took cognizance of the offences and framed the charges against the petitioner under the aforesaid sections of IPC, to which he pleaded not guilty and claimed to be tried.
4. In the course of trial, the prosecution examined as many as 10 witnesses to bring home the charges against the petitioner. Out of these 10 witnesses, P.Ws. 2, 4, 5, 6 & 7 were the passengers of the ill-fated Jeep and are, accordingly, eye-witnesses to the accident. No evidence was adduced, on behalf of the petitioner but his defence was one of denial of the offences charged against him. At the conclusion of the trial, the Ld. S.D.J.M. found the petitioner guilty of the offences under Sections 279 and 304-A, IPC and sentenced him to undergo R.I. for one month for the offence of Section 279, IPC while he was sentenced to suffer R.I. for five months with a fine of Rs. 5.000/- for the offence of Section 304-A, IPC. Being aggrieved, the petitioner preferred an appeal before the Ld. Addl. Sessions Judge, Belonia, who, however, dismissed the appeal observing that the sentence was extremely minimum, vide the judgment dated 6-3-1999. This judgment is now under challenge in this revision.
5. On careful examination of the findings of both the Courts below, 1 have no hesitation to hold that there is absolutely no infirmity therein to call for the interference of this Court in the conviction of the petitioner. P.Ws. 2, 4, 5, 6 & 7 who were the passengers of the offending Jeep, all of whom were injured in the accident, have clearly identified that the petitioner was the driver of the vehicle in question. Though they did not know the name of the driver, there is no reason why they should not be asked to establish his identity. The Ld. Additional Sessions Judge recorded the findings that the petitioner voluntarily surrendered before the Court and obtained bail therefrom without in any way disputing his identity as the driver of the Jeep bearing No. TRT 1557 and that the seizure of his driving licence as the driver of the offending vehicle had not been challenged by him. The Ld. Addl. Sessions Judge also held that it was quite natural that the passengers of the Jeep would not ordinarily know the name of the driver of the vehicle in which they were travelling. The appellate Court also took note of the fact that it was the petitioner who, after his release on bail, applied for and obtained on Zima the offending Jeep. The above findings of the appellate Court cannot be said to be perverse. Therefore, in my considered view, the identity of the petitioner as the driver of the offending Jeep has been clinchingly established by the prosecution.
6. It is not the case of the petitioner that the accident did not occur on a public way while the vehicle was travelling from Santirbazar to Laogang. It is also an undisputed fact that the accident resulted in the death of one Smt. Subhashi Das. The next question to be determined in this revision is as to whether the offending Jeep was driven by the petitioner rashly and negligently ? P.W. 8 is a Senior Inspector, Motor Vehicle, Udaipur, who inspected the offending vehicle. In his deposition in Court, he categorically stated that he inspected the said vehicle on 13-3-1997 at STB P.S. complex and was of the opinion that the accident occurred not due to mechanical disorder of the vehicle. This deposition has not been seriously challenged by the defence. P.W. 2 deposed that the vehicle was travelling in high speed while in his cross-examination he denied that the accident occurred due to bad road condition. P.Ws. 4, 5 and 7 testified in Court that the vehicle was driven by the driver with high speed and that the driver did not pay any heed to their request for slowing down the speed. P.W. 6 corroborated the statements of said witnesses. It is thus obvious that all the witnesses to the accident agreed that the accident occurred due to speedy driving by the driver. Cross-examination of these witnesses by the petitioner hopelessly elicit any evidence to the contrary. Consequently, I hold that the prosecution has proved to the hilt that the petitioner was guilty of rash and negligent driving on a public way, which resulted in the death of one of the passengers, namely, Smt. Subhasi Das.
7. Under Section 279, IPC, what constitutes an offence is the rash and negligent driving of a vehicle or riding on a public way so as to endanger human life or be likely to cause hurt or injury to another person. Section 304-A, IPC however, penalizes the causing of death to a person by doing rash or negligent act not amounting to culpable homicide. The difference between Section 279 and Section 304-A, IPC is that whereas under Section 279, the rash and negligent act relates to driving/riding on a public way thereby endangering human life, the offence under Section 304-A extends to causing the death of a person by rash and negligent act though such act falls short of culpable homicide. Mere negligence cannot be construed as rashness. There are degree of negligence and rashness and in order to amount to criminal rashness or criminal negligence, one must find that the rashness has been of such a degree as to amount to taking risk knowing that the risk was of such a degree that injury was most likely to be occasioned thereby. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences. It may, however, be noted that rashness and negligence are not the same thing. In a rash act, there is consciousness or awareness of the mind with reference to the act done and the actor indulges in the act with the foolhardy hope or expectation against anything unto wards happening. On the other hand, negligence presupposes a negative state of mind, an absence of awareness or consciousness of what should be done or omitted to be done, such a state of mind being consequent upon failure to apply or exercise the requisite caution or precaution (see Krishna Bahadur Chetri v. State of Assam, 1979 Cri LJ 1258 (Gau). The offence under Sections 279 and 304-A, IPC are distinct offences and an accused can be convicted under both the sections.
8. In view of the findings of both the Courts below, which, on independent consideration by me of the evidence adduced on behalf of the prosecution, are proper and are based on evidence on record, there can be no doubt that the petitioner was the driver of the ill-fated Jeep, the Jeep was driven on a public way, there was rash and negligent driving of the vehicle by the driver, the accident resulted in the death of Smt. Subhasi Das. It may be recalled that I have independently recorded the findings that the petitioner indulged in reckless driving and completely manifested indifference to the consequences by ignoring or disregarding the anxiety and horror of the passengers, who practically begged him to slow down but in vain. Such wanton act of the petitioner resulted in an accident causing the death of an old lady. In that view of the matter, I hold that both the findings and conviction made by the Courts below are perfectly in order.
9. Coming now to the question of sentence, it may be noted that the maximum sentence prescribed for the offence of Section 279, IPC is imprisonment of either description for a term, which may extend to six months, or with fine, which may extend to one thousand rupees, or with both. Under Section 304-A, IPC, the maximum punishment awardable is imprisonment of either description for a term, which may extend to two years, or with fine, or with both. No minimum sentence is prescribed for either of the offences. The trial Court sentenced the petitioner to undergo one month R.I. for the offence of Section 279, IPC while it imposed a sentence of R.I. for five months with a fine of Rs. 5.000/- and another two months’ R.I. in default thereof for the offence ‘ of Section 304-A, IPC. The trial Court is over-lenient as observed by the appellate Court and the same ought to have been increased had the Government preferred an appeal against the sentence. The mitigating factor the trial Court had in mind was that the petitioner was a poor driver of young age. He also appeared to have been swayed by the nature of the offence and circumstances under which the offence was committed. In my considered view, these cannot be the correct parameters for awarding sentences lesser than the maximum punishments prescribed by law. One cannot fathom the terror caused to the passengers by the reckless and wanton driving of the vehicle by the petitioner. Numerous deaths have resulted from speedy and reckless driving by drivers in this country. The sentences imposed upon those drivers are usually minimal. Deterrent sentences in motor accident cases have been few and far between.
10. It is true that the mere fact a human life is lost by negligent driving of a vehicle cannot justify the Court in passing a deterrent sentence, if the loss of life could not have been reasonably anticipated by the driver. But at the same time, it must also be kept in view that in estimating the sentence to be passed on the accused in a case of causing death by rash and negligent driving, the Court has to consider whether the negligent or rash act, which has occasioned the death shows indifference on his part as regards the hazard to which he was exposing other persons. Therefore, the severity of the sentence must depend to a great extent on the degree of callousness which is present in the conduct of the accused. It is also true that it is no part of the duty of Court to punish with savage sentences against every driver who have the misfortune to have an accident, which results in a loss of human life, when the accident is only due to error of judgment. Thus, it is wanton or reckless driving versus error of judgment, which will clinch the issue on the quantum of punishment to be awarded in a vehicular accident endangering human life or of causing the death of a person. Here is a case where the petitioner has been found to be indulging in reckless driving in a public way thereby causing the death of his passenger and yet, the trial Court showed undue leniency or misplaced sympathy without bereft of reason. Such undue leniency or liberal penalty shown to a reckless driver like the petitioner will erode public confidence in our criminal justice system. Viewed from any angle, I do not find any ground for conceding the prayer of Mr. A.C. Bhowmik for reducing the sentence imposed by the Courts below to one of fine or to a minimum sentence. In my considered view, the trial Court has already imposed unduly inadequate sentences not warranted by the facts and circumstances of the case, which cannot be disturbed by this Court.
11. For what has been stated in the foregoing, this revision petition is devoid of substance and, is accordingly, dismissed. The petitioner shall immediately surrender to the trial Court for serving out, the sentences imposed upon him. It is, however, made clear that the sentences are to run concurrently.