JUDGMENT
P.B. Gaikwad, J.
1. Original Accused Jagannath Fakirchand Khandebharad being dissatisfied with the order passed by the Judicial Magistrate (First Class) Ambad dated 29/9/1989 convicting him for the offence punishable under Section 279 of Indian Penal Code and directing him to suffer R.I. for 3 months and to pay fine of Rs. 300/in default R.I. for one month, further convicting him for the offence under Section 337 and directing to suffer R.I. for 3 months and to pay fine of Rs. 300/in default R.I. for one month, and also convicting him for the offence under Section 42(1) read with Section 123 of Motor Vehicles Act and directing him to pay fine of Rs. 1000/- in default R.I. for 3 months, which is later on confirmed in Criminal Appeal No. 63/1989 by Sessions Judge, Jalna by his order dated 30/3/1994, filed present petition.
2. The facts, in brief, leading to the present petition are that; The alleged accident took place on 6/3/1988 on Chikangaon to Kharadgaon road near Chinchgaon fata. It is alleged that, the present petitioner was driving tractor bearing registration No. MFT/2301. It is further alleged that, some 30 to 40 occupants were in the trolly of the said tractor. A marriage party was proceeding in the said tractor along with two other tractors. It is further case of prosecution that, the petitioner who was driving tractor was rash and negligent. The tractor accordingly turned turtle. The occupants from the trolly of the said tractor including Bajrang, Damu, Natha, Namdeo i.e. near about 10 to 12 persons sustained injuries. It was also noticed that the petitioner was driving tractor without having any valid licence. Information was accordingly given to the police station Ambad. Injured were taken to the Primary Health Centre, Pachod. Laxman Joshi, Head Constable attached to the Ambad Police Station, made inquiry and thereafter filed complaint in respect of the said incident. Accordingly, registered offence under Section 279 and 338 of Indian Penal Code and also offence under Section 42(1) read with Section 123 and 116 of Motor Vehicles Act. Head Constable Joshi, after completing investigation submitted charge sheet before the Judicial Magistrate (First Class) Ambad.
3. The Judicial Magistrate (First Class) accordingly recorded plea of accused as per Exh.3. Particulars of offence were explained to the accused on 27.12.1988. The accused pleaded not guilty to the charge and claimed to be tried. The prosecution to connect the accused with the above said crime examined 5 witnesses i.e. P.W. 1 Prakash Chagan, one of the injured, P.W.2 Natha Motiram Kasbe, another injured and an eye witness to the said incident. P.W.3 Dr. Sudam Mogale, medical officer attached to the Primary Health Centre, Pachod. P.W.4 Dr. Mohamad Ismile, is another medical officer who examined some of the injured. P.W.5 is Laxman Joshi, investigating officer. Through his evidence Complaint Exh. 27 is got proved.
4. The Judicial Magistrate (First Class)after considering the evidence on record concluded that the accident is out come of negligence and rashness on the part of the present petitioner while driving the Tractor from Chikangaon to Kharadgaon. Accordingly he convicted the accused for the offence under Section 279 and 337 of Indian Penal Code. He also concluded that, at the relevant time accused was not having driving licence and, therefore, convicted for the offence under Section 42(1) read with Section 123 of Motor Vehicles Act. The Petitioner being dissatisfied with the said order filed Criminal Appeal before Sessions Judge, Jalna i.e. Criminal Appeal No. 63/1989. Same is heard by Sessions Judge, Jalna and decided same by his order dated 30/3/1994 and dismissed the same as same being without merit. Said order is challenged by original accused present petitioner by filing present petition.
5. In the petition , I heard Shri S.C. Bora advocate for the Petitioner and Shri Bajpai A.P.P. for State at length. 6. It is submitted by Shri S.C. Bora advocate for petitioner that this being a revision the evidence on record can safely be considered when the findings recorded by the Judicial Magistrate (First Class), which is later on confirmed by the Sessions Judge Jalna, is perverse, there is no proper evaluation of evidence. Secondly according to him, both the courts below failed to consider the fact that P.W. 1 and 2 Prakash and Natha , in their evidence have stated that they have seen the accused prior to the accident at some market place and, therefore, the identity of the person who was driving the tractor at the relevant time is in dispute, and in such circumstances the Judicial Magistrate (First Class) ought to have given benefit to the accused as prosecution failed to prove identity of the person who was driving tractor. Thirdly, according to him there were 3 tractors in which a marriage party was being taken and in view of this position identity of the person who was driving tractor involved in the accident ought to have been proved beyond doubt. Fourthly, it is contended that, in the present case the evidence about rashness and negligence on the part of the person who was driving tractor has not been satisfactorily proved. Lastly, it is contended that at any rate the courts below ought to have considered that the accused present petitioner is entitled for benefit, either under Section 360 of Criminal Procedure Code or under Probation of Offenders Act, however, he is directed to suffer R.I. for 3 months and same is disproportionate. Shri Bora, advocate for the petitioner placed reliance on certain authorities in support of his contentions i.e. Bhausaheb Vs. State of Maharashtra and relying on the ratio laid down in the said authority, according to him, in revision or while exercising revisional jurisdiction evidence can be reassessed. He also placed reliance on another authority Radhelal Vs. State of Maharashtra, 1982 Mah. Law Journal, page no. 181. While relying on the other two authorities i.e. 2001(10) Supreme Court Cases, 477 and 1995 (Supplement- 2) Supreme Court Cases, page 385, according to him this is a fit case where benefit of Section 360 of Criminal Procedure Code needs to be given, in case, if it is held that the evidence on record adduced by the prosecution is sufficient to convict the accused. 7. On the other hand it is submitted by Shri Vajpai, A.P.P. for the state that, the order convicting the accused for the offence under Section 279 and 337 of Indian Penal Code is proper and justified. He further submits that, in the present case identity of accused is not in dispute. Even the accused was found not holding driving licence and in such circumstances, according to him, this is not a fit case where benefit of Probation of Offenders Act is to be given nor there is any scope to take any lenient view. He, therefore, requested to dismiss the petition as the same being without merit. 8. Considering the submissions it is necessary to see whether the findings recorded by the Judicial Magistrate (First Class) convicting the petitioner for the offence under Section 279 and 337 of Indian Penal Code is proper and justified. 9. From the evidence on record and more particularly, from the evidence of P.W. 3 Head Constable Laxman Joshi which is at Exh. 26, it is apparently clear that, he made inquiry and thereafter made report on 18.3.1988 which is at Exh. 27. From the evidence, according to him, the tractor bearing registration No. MFT/2301 was involved in the said accident. Same was proceeding from Chikangaon to Kharadgaon and alleged accident took place near Chinchkhed village. On the basis of report given by this witness crime No. 48/1988 is registered for the offences under Section 279 and 338 of I.P.C. and also for the offence under Section 42 read with Section 123 of Motor Vehicles Act. Firstly, so far as regards identity is concerned, as the present petitioner was driving said tractor at the relevant time, evidence of P.W. 1 and P.W.2 has got relevance as they being injured in the said accident. On perusal of their evidence it is sufficiently clear that, according to both these witnesses present petitioner original accused was driving tractor at the relevant time when the accident took place. In cross examination these witnesses have admitted the position that the petitioner, who was driving the tractor, was seen by these witnesses even prior to the accident at market place. This again confirms the identity of present petitioner as he was driving tractor at the relevant time. On close scrutiny of the evidence and considering the reasoning given by the Judicial Magistrate (First Class) Ambad, and by the Sessions Judge, Jalna, I find that, the conclusion arrived at by both the courts below holding that the accused was driving tractor at the relevant time i.e. on 6.3.1988 when the accident took place, is proper and justified. 10. Another aspect is about rashness and negligence on the part of the present petitioner. From the evidence of these two witnesses, if read together with other circumstances on record and the fact that the tractor turned turtle, itself makes it clear that he was driving tractor rashly and negligently. Without giving much details in respect of the evidence of P.W.1 and 2 I find that both the courts below have considered this aspect at length and rightly concluded that there was negligence and rashness on the part of the present petitioner while driving tractor and the conclusion arrived at in that respect is definitely reasonable, proper and acceptable. So far as regards offence under Section 337 is concerned, though the charge was framed under Section 338 the Judicial Magistrate (First Class) has rightly concluded that there was no grave injury and, therefore convicted the present petitioner for the offence under Section 337. Thus, so far as regards order of conviction for the offence under Section 279 and 337 of Indian Penal Code is concerned, I find that same is reasonable. So far as regards conviction for the offence under Section 42 read with Section 123 of Motor Vehicles Act and from the tenor of cross examination of the witnesses and even, in the statement under Section 313, the accused has not made clear that he was holding licence nor he produced same before investigating officer during the course of investigation. In view of this position, I find that this particular aspect whether he was holding a driving licence or not is within his specific knowledge and it was open for him to produce the same and thus the findings recorded by the court below concluding that, the accused was driving tractor at the relevant time without holding any licence is again justified. 11. Shri Bora advocate for petitioner relying on the authorities referred above requested to give benefit under Section 360 of Criminal Procedure Code or under Probation of Offenders Act. I find that in the present case near about 10 to 12 persons sustained injuries. Further the petitioner was driving tractor without holding any licence and in view of this position, to my mind, it will not be desirable to give benefit under Section 360 of Cr.P.C. or under Probation of Offenders Act. However, purpose will be served if the order of sentence is modified and the accused is directed to pay fine amount for the offence under Section 279 and 337 of I.P.C. So far as regards offence under Section 42(1) read with Section 123 of Motor Vehicles Act is concerned, fine of Rs. 1000/- is imposed and it is seen from record that he has already deposited the said amount. There is nothing to modify the order of conviction and sentence so far as regards offence under Section 42 read with Section 123 of Motor Vehicles Act is concerned. So far as regards offence under Section 279 and 337 of I.P.C. is concerned, considering the nature of offence, manner in which it took place and other factual aspects, I find that, for offence under Section 279 of I.P.C. the petitioner is directed to suffer S.I. till rising of court and to pay fine of Rs. 1000/- while in respect of offence under Section 377 of I.P.C. he is directed to suffer S.I. till rising of court and to pay fine of Rs. 500/-. 12. In the result order of conviction is maintained. Order of sentence is modified. The Petitioner is directed to suffer S.I. till rising of court and to pay fine of Rs. 1000/- in default S.I. for one month for offence under Section 279 of I.P.C. He is further directed to suffer S.I. till rising of court and to pay fine of Rs. 500/- in default S.I. for 15 days for offence under Section 337 of I.P.C. Order of conviction and sentence, so far as regards offence under Section 42(1) read with Section 123 of Motor Vehicles Act is concerned, is confirmed. With this modification petition is dismissed. His bail bond stands cancelled. He is directed to appear before Judicial Magistrate (First Class) Ambad on 9/6/2003. Record and Proceeding be sent to the lower court immediately.