Balwinder Katoch Vs State of Hp

2025:HHC:42908

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 112 of 2015 Reserved on: 17.11.2025 Date of Decision: 11.12.2025.

Balwinder Katoch and another	...Petitioners
Versus
State of H.P.	...Respondent

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge.

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Whether approved for reporting?¹ No.

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For the petitioners	: Mr Advo	Rajesh cate.	Mandhotra,
For the Respondent/State	: Mr	Jitender	Sharma,
	Addi	tional Advo	cate General.

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Rakesh Kainthla, Judge

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The present revision is directed against the judgment

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dated 26.2.2015, passed by learned Additional Sessions JudgeIII, Kangra at Dharamshala, Circuit Court at Baijnath, vide which

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the judgment of conviction and order of sentence dated 31.12.2010, passed by learned Judicial Magistrate First Class, Baijnath, District Kangra, H.P. (learned Trial Court) were upheld.

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Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

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Briefly stated, the facts giving rise to the present revision are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Sections 279, 337, 338 and 304A of the Indian Penal Code (IPC) and Section 181 of the Motor Vehicles Act (MV Act). It was asserted that the informant Shashi Pal (PW1) was going from Baijnath to Ustehar in a three-wheeler bearing registration No. HP-53-4492, which was being driven by the accused Balwinder Katoch. The three-wheeler reached Baijnath Bazar at 9.30 AM when one person signalled the threewheeler and requested the accused to carry the children in his three-wheeler. The accused agreed, and the children sat in the vehicle. Shashi Pal was sitting in the front seat. When the threewheeler reached the Ustehar rain shelter, Balwinder Katoch applied the brakes; however, he could not control the threewheeler due to its high speed. The three-wheeler turned, hit the side of the wall and again became straight. The occupants of the three-wheeler and one person standing on the roadside sustained injuries. The accident occurred due to the high speed

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of the three-wheeler and the negligence of the accused. The matter was reported to the police. An entry was recorded in the Police Station. ASI Pratap Singh (PW9) and Constable Shakti Chand went to the hospital for verification. Shashi Pal made a statement (Ex.PW1/A), which was sent to the Police Station, where FIR (Ex.PW11/A) was registered. ASI Pratap Singh (PW9) investigated the matter. He visited the spot and prepared the site plan (Ex.PW9/B). He took photographs (Ex.PW9/C to Ex.PW9/E). He seized the three-wheeler along with documents vide memo (Ex.PW7/A). Rajinder Kumar (PW8) mechanically examined the three-wheeler and found that there was no mechanical defect in it, which could have led to the accident. One person succumbed to his injuries. Dr Sunita (PW1) conducted his post-mortem examination and found that he had died because of a fracture of skull bones and massive haemorrhage. She issued a postmortem report (Ex.PW10/A). The statements of remaining witnesses were recorded as per their version, and after the completion of the investigation, a challan was prepared and presented before the learned Trial Court.

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The learned Trial Court found sufÏcient reasons to summon the accused. When the accused Balwinder Katoch

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appeared, notice of accusation was put to him for the commission of offences punishable under Sections 279, 337, 338, and 304-A of IPC and Sections 181 of MV Act and notice of accusation was put to the accused Narender Katoch for the commission of an offence punishable under Section 180 of MV Act, to which they pleaded not guilty and claimed to be tried.

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The prosecution examined twelve witnesses to prove its case. Shashi Pal (PW1) is the informant. Banti (PW2), Pinki (PW3), Sarwan Kumar (PW4), Sunny Kumar (PW5) and Badri Nath (PW6) are the eyewitnesses. Jagdish Chand (PW7) is the witness of recovery. Rajinder Kumar (PW8) mechanically examined the vehicle. ASI Pratap Singh (PW9) investigated the matter. Dr Sunita (PW10) conducted the postmortem examination. HC Suresh Kumar (PW11) signed the FIR. ASI Sureshta (PW12) prepared the challan.

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The accused, in their statements recorded under Section 313 of Cr.P.C., denied the prosecution’s case in its entirety. They stated that the witnesses deposed falsely against them, and they are innocent. They did not produce any evidence in defence.

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Learned Trial Court held that the prosecution’s evidence proved that the accused could not control the vehicle because of its high speed. The vehicle turned, hit the side, causing injuries to its occupants and the death of Shabu. The high speed of the vehicle was the proximate cause of the accident. The defence taken by the accused that children were running on the road will not help the accused because the accused was supposed to take care of the unforeseen circumstances while driving the vehicle. The accused, Balwinder Katoch, did not have a valid driving license with him. The accused Narender Katoch had permitted Balwinder Katoch to drive three wheeler knowing fully well that Balwinder Katoch had no valid driving licence; therefore, the learned Trial Court convicted accused Balwinder Katoch for the commission of an offences punishable under Sections 279, 337, 338 and 304-A of IPC and Sections 181 and 192 of MV Act and accused Narender Katoch of the commission of an offence punishable under Section 180 of MV Act and sentenced them as under:-

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Accused Balwinder Katoch:

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Under Section 279 of IPC	To suffer simple imprisonment for a
	period of three months, paya fine of

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	₹500/- and in default of payment of fine, to undergo simple imprisonment for one month.
Under Section 337 of IPC	To suffer simple imprisonment for a period of three months, pay a fine of ₹250/- and in default of payment of fine, to undergo simple imprisonment for 15 days.
Under Section 338 of IPC	To suffer simple imprisonment for a period of six months, pay a fine of ₹500/- and in default of payment of fine, to undergo simple imprisonment for one month.
Under Section 304-A of IPC	To suffer simple imprisonment for a period of one year, pay a fine of ₹1,000/- and in default of payment of fine, to undergo simple imprisonment for one month.
Under Section 181 of MV Act	To pay a fine of ₹200/- and in default of payment of fine, to undergo simple imprisonment for 15 days.
Under Section 192-A of MV Act	To pay a fine of ₹2,000/- and in default of payment of fine, to undergo simple imprisonment for one month.
All the substantive sentences concurrently.	of imprisonment were ordered to run

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Accused Narinder Katoch:

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Under Section 180 of MV Act	To pay a fine of ₹1,000/- and in
	default of payment of fine, to undergo
	simple imprisonment for one month.

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Being aggrieved by the judgment and order passed by

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the learned Trial Court, the accused and the State filed separate appeals, which were decided by the learned Additional Sessions Judge-III, Kangra at Dharamshala, Circuit Court at Baijnath, District Kangra, HP (learned Appellate Court). The State sought enhancement of the sentence, whereas the accused sought their acquittal. Learned Appellate Court concurred with the findings recorded by the learned Trial Court that the accident occurred because the accused Balwinder Katoch could not control the vehicle due to its high speed. His negligence led to the accident. He had no valid driving license with him. Narender Katoch had allowed Balwinder Katoch to drive the three-wheeler, knowing fully that Balwinder Katoch had no valid driving licence. Thus, the learned Trial Court had rightly convicted the accused. However, the learned Trial Court had awarded an inadequate sentence; hence, the learned Appellate Court enhanced the sentences as under:-

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Accused Balwinder Katoch:

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Under Section 279 of IPC	To suffer simple imprisonment for a
	period of one year, pay a fine of
	₹500/- and in default of payment of
	fine,to undergo simple imprisonment

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	for one month.
Under Section 337 of IPC	To suffer simple imprisonment for a period of one year, pay a fine of ₹250/- and in default of payment of fine, to undergo simple imprisonment for 15 days.
Under Section 338 of IPC	To suffer simple imprisonment for a period of one year, pay a fine of ₹500/- and in default of payment of fine, to undergo simple imprisonment for one month.
Under Section 304-A of IPC	To suffer simple imprisonment for a period of one year, pay a fine of ₹1,000/- and in default of payment of fine, to undergo simple imprisonment for one month.
Under Section 181 of MV Act	To pay a fine of ₹200/- and in default of payment of fine, to undergo simple imprisonment for 15 days.
Under Section 192-A of MV Act	To pay a fine of ₹2,000/- and in default of payment of fine, to undergo simple imprisonment for one month.
All the substantive sentences concurrently.	of imprisonment were ordered to run

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Accused Narinder Katoch:

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Under Section 180 of MV Act	To pay a fine of ₹1,000/- and in
	default of payment of fine, to undergo
	simple imprisonment for one month.

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Being aggrieved by the judgments and order passed by the learned Courts below, the accused have filed the present revision asserting that the learned Courts below failed to appreciate the material placed on record. The defence version that the children suddenly crossed the road and the accused had to apply the brakes was highly probable. The proximate cause of the accident was the running of the children on the road and not the negligence of the accused. Badri Nath (PW6) did not state anything about the rashness or negligence of the accused, and this aspect was ignored by the learned Courts below. Therefore, it was prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set aside.

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I have heard Mr Rajesh Mandhotra, learned counsel for the petitioners/accused, and Mr Jitender Sharma, learned Additional Advocate General, for the respondent-State.

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Mr Rajesh Mandhotra, learned counsel for the petitioners/accused, submitted that the learned Courts below erred in appreciating the material placed before them. The prosecution witnesses admitted in their cross-examination that

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children had suddenly crossed the road. The accused was forced to apply the brakes to save their lives. The proximate cause of the accident was the running of the children across the road and not the negligence of the accused. The learned Courts below failed to appreciate this aspect. Therefore, he prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set aside.

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Mr Jitender Sharma, learned Additional Advocate General, for the respondent-State, submitted that the accused was driving the three-wheeler at a high speed. He failed to control it, which led to the accident. The learned Trial Court had rightly held that the accused should have taken care of the unforeseen circumstances. This Court should not interfere with the concurrent findings of the learned Courts below. Hence, he prayed that the present revision be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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It was laid down by the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh , (2022) 8 SCC 204: (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that a revisional

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court is not an appellate court and it can only rectify the patent

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defect, errors of jurisdiction or the law. It was observed at page

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207: -

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“10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction to satisfy itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings.

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This position was reiterated in State of Gujarat v.

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Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC

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1294, wherein it was observed at page 695:

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14. The power and jurisdiction of the Higher Court under Section 397CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect

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or an error of jurisdiction or law or the perversity which has crept in such proceedings.

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15. It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986 , where scope of Section 397 has been considered and succinctly explained as under: (SCC p. 475, paras 12-13)

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“ 12 . Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

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13 . Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within

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the categories aforestated. Even the framing of the charge is a much-advanced stage in the proceedings under CrPC.”

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It was held in Kishan Rao v. Shankargouda , (2018) 8 SCC 165 : 2018 SCC OnLine SC 651 that it is impermissible for the High Court to reappreciate the evidence and come to its conclusions in the absence of any perversity. It was observed at page 169:

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“12. This Court has time and again examined the scope of Sections 397/401 CrPC and the grounds for exercising the revisional jurisdiction by the High Court. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452: 1999 SCC (Cri) 275 , while considering the scope of the revisional jurisdiction of the High Court, this Court has laid down the following: (SCC pp. 454-55, para 5)

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“ 5 . … In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting a miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court, nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to a gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid

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standpoint, we have no hesitation in concluding that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. …”

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13. Another judgment which has also been referred to and relied on by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123: (2015) 2 SCC (Cri) 19 . This Court held that the High Court, in the exercise of revisional jurisdiction, shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is nonconsideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. The following has been laid down in para 14: (SCC p. 135)

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“ 14 . … Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with the decision in exercise of their revisional jurisdiction.”

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14. In the above case, also a conviction of the accused was recorded, and the High Court set aside [Dattatray Gulabrao

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Phalke v. Sanjaysinh Ramrao Chavan, 2013 SCC OnLine Bom 1753] the order of conviction by substituting its view. This Court set aside the High Court's order, holding that the High Court exceeded its jurisdiction in substituting its views, and that too without any legal basis.

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This position was reiterated in Bir Singh v. Mukesh

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Kumar , (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ)

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309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:

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“16. It is well settled that in the exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record.

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17. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH, (2008) 14 SCC 457 , it is a well-established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is, therefore, in the negative.”

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The present revision has to be decided as per the

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parameters laid down by the Hon’ble Supreme Court.

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Accused Balwinder Katoch has not specifically disputed the fact that he was driving the three-wheeler at the time of the accident. This is evident from para 2(i) of the revision petition, in which it was asserted that the prosecution’s evidence shows that the petitioner was not driving the vehicle in

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a rash and negligent manner. Thus, the only dispute is whether the accused was negligent or not.

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The informant, Shashi Pal (PW1), stated that he was standing at the chowk. Accused Balwinder Katoch told him that he was going to Baba Kathak. The accused asked the informant to accompany him in his three-wheeler bearing registration No. HP-53-4492. He boarded the three-wheeler, which was a goods carriage. Some children also boarded the three-wheeler on the way. When the three-wheeler reached the rain shelter, Ustehar, some children ran across the road. The accused applied the brakes, and the three-wheeler turned. The speed of the threewheeler was slightly high. He and the children sustained injuries. The injured were taken to the hospital. He admitted in his cross-examination that there were many shops at Ustehar and the area was heavily populated. He admitted that the children suddenly ran across the road. The accused moved the vehicle to avoid the accident. The accident would not have occurred but for the running of the children. The accident occurred due to the negligence of the children. It is not possible to drive a three-wheeler at a high speed. He denied that the

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three-wheeler was being driven at a normal speed. He admitted that Ustehar was a State Highway.

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It was submitted that the informant admitted in his cross-examination that the accident occurred due to the negligence of the children who suddenly ran across the road. This submission will not help the accused. Learned Courts below had rightly pointed out that the proximate cause of the accident was failure to control the vehicle after the sudden application of brakes and the high speed due to which the three-wheeler had turned turtle.

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It was submitted that the place of the accident was a Highway, and mere high speed is not sufÏcient to establish negligence of the driver. This submission will not help the accused. The informant admitted in his cross-examination that the place of the accident had many shops. He also admitted that there was a huge rush in the morning. Therefore, the accused was supposed to drive the three-wheeler carefully to avoid any injury to any person. It was laid down by the Orissa High Court in Prafulla Kumar Rout v. State of Orissa , 1994 SCC OnLine Ori 229: (1995) 79 CLT 153 that a vehicle being driven on a congested road

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at a speed of 30 kilometres may constitute high speed. It was

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observed at page 157:-

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“8. High speed is a relative term. A vehicle which is driven on a congested road, even at a speed of 30 kms/h may constitute high speed, but driving a vehicle at a speed higher than 30 km/h on an open road may not be considered driving at high speed. It would depend upon the nature and situation of the road, concentration of pedestrians and vehicular trafÏc on it and many such other relevant factors. In the case at hand, the vehicle, which was being driven on the National Highway, caused an accident in front of a school. It is expected of a driver to be cautious and slow down the vehicle when nearing an educational institution. Unshaken evidence of eyewitnesses shows that the vehicle was driven at a high speed, though no exact speed was indicated by them. A responsible Revenue OfÏcer (p.w. 13) is supposed to know what high speed is compared to normal speed. On consideration of the evidence, courts below have held that the vehicle was being driven at a very high speed. Added to the above, reappraisal of evidence while exercising revisional power is uncalled for, unless conclusions of the courts below are perverse, unreasonable or of such a nature that no reasonable person can reach such a conclusion. That does not appear to be the case here. The courts below have rightly found the accused guilty.”

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It was laid down by the Patna High Court in Laxmi

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and Co. v. Savitri Devi Agarwal (Loyalka) , 1989 SCC OnLine Pat

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246: (1990) 2 PLJR 174 that driving a vehicle at a speed of 10 miles

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per hour in a crowded place may constitute negligence. It was observed at page 176:

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“20. It may be true that driving of vehicle at a high speed may not itself constitute rashness or negligence. The question as to whether driving at a high speed itself constitutes negligence or not depends upon the facts of each case. A vehicle driven at a speed of 10 miles per hour on a crowded road may constitute negligence, whereas driving a vehicle at a speed of 50 miles per hour on a highway where there is little or no trafÏc may not constitute rashness or negligence.”

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In the present case, the accused failed to slow down

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the vehicle after entering the area having a huge rush of pedestrians and many shops, and this would constitute negligence on his part.

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Bunty (PW2) stated that he and 10-11 persons were travelling in a van. The tyre of the van got punctured at Ustehar. He and other children boarded the three-wheeler, which was being driven at a high speed and met with an accident. He sustained injuries to the chest. The accused was driving the vehicle. His cousin died in the accident. He stated in his crossexamination that six adults and eleven children were travelling with him. The road was straight at the place of the accident. Some children were standing on the roadside who suddenly ran across the road. The accused turned the vehicle, and it turned turtle. The accident would not have taken place but for the running of the children.

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The testimony of this witness corroborates the informant’s testimony. His statement shows that the accused was unable to control the vehicle, which led to the accident. Thus, his testimony also shows that the accused was negligent, as he was unable to control the vehicle because of its high speed.

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Pinki Devi (PW3) stated that 11 children were going to Baba Kathak, including her. The vehicle in which they were travelling had a tyre puncture. The children boarded the threewheeler which fell after some distance. The three-wheeler was being driven at a high speed, and it met with an accident. She sustained injuries to her neck. She admitted in her crossexamination that they had left the home in 2-3 vehicles. She was sitting in third vehicle. She denied that the children ran across the road. She volunteered to say that she was sitting on the rear side of the vehicle and could not say how the accident had occurred.

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The statement of this witness also shows that the three-wheeler had turned near Ustehar because of high speed. Thus, her testimony also corroborated the prosecution’s version

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that the accused could not control the three-wheeler because of its high speed.

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Sarwan Kumar (PW4) stated that he and other persons were going to Baba Kathak. The tyre of the jeep got punctured at Ustehar. Children boarded the vehicle. The threewheeler turned turtle after some distance because of its high speed. The accused was driving the three-wheeler at the time of the accident, and the accident occurred due to his negligence. He admitted in his cross-examination that they had left the home in a goods carrier, and three persons were moving on a motorcycle. All the injured were related to each other.

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The testimony of this witness also shows that the accused was driving the vehicle, and it turned turtle at Ustehar.

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Sunny Kumar (PW5) stated that he and other children had boarded a three-wheeler. When the three-wheeler reached Ustehar, the accused suddenly applied its brakes, and the three-wheeler turned turtle. The accident occurred due to the negligence of the accused. He stated in his crossexamination that Krishan Chand was sitting in the jeep. He was organising a trip to Baba Kathak. The road was straight at

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Ustehar. The children who were standing on the roadside suddenly ran across the road.

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The statement of this witness also established that the accused suddenly applied the brakes, due to which the three-wheeler turned turtle. This shows that the accused was unable to control the three-wheeler.

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Badri Nath (PW6) stated that he was standing on the roadside at Ustehar. A three-wheeler came at a high speed. It turned and hit him. He sustained injuries. He admitted in his cross-examination that the place of the accident was straight and there was a rain shelter at the place of the incident. He admitted that the children used to go to school. He regained consciousness in the hospital. He denied that the accident occurred due to the running of the children across the road.

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The presence of this witness is established by the injuries sustained by him. He specifically stated that the threewheeler had turned turtle because of its high speed. His statement also shows that the accused was unable to control the three-wheeler.

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Therefore, the witnesses consistently stated that the accused was driving the three-wheeler at a high speed. He applied the brakes but could not control it, and the vehicle turned turtle. Some of the witnesses admitted that the children ran across the road, but that will not make any difference because the accused should have taken care of the unforeseen events while driving the vehicle, especially in a crowded area. The failure to anticipate dangers on the road and uncontrollably driving the three-wheeler led to the accident. Therefore, the learned Courts below had rightly held that the accused Balwinder Katoch was driving the vehicle negligently.

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It was submitted that Badri Nath (PW6) and Pinki Devi (PW3) did not say anything about the negligence of the accused, and the learned Courts below ignored this aspect. This submission will not help the accused. Negligence is an inference

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from the facts. A witness can only depose about the fact which had occurred in his presence, and he is not permitted to draw inferences from the facts. The inferences have to be drawn by the Jury or the Judge when he is sitting without a Jury. It was laid down by Goddard LJ in Hollington v. Hawthorn 1943 KB 507 at 595 that a witness cannot depose about negligence. It was observed :

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“It frequently happens that a bystander has a full and complete view of an accident. It is beyond question that while he may inform the court of everything he saw, he may not express any opinion on whether either or both of the parties were negligent. The reason commonly assigned is that this is the precise question the court has to decide, but in truth, it is because his opinion is not relevant. Any fact that he can prove is relevant, but his opinion is not.”

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Similar is the judgment in State of H.P. vs. Niti Raj

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2009 Cr.L.J. 1922 (HP), wherein it was held:

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“It is not necessary for a witness to say that the driver of an offending vehicle was driving the vehicle rashly. The issue whether the vehicle was being driven in a rash and negligent manner is a conclusion to be drawn on the basis of evidence led before the Court.”

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Therefore, the accused cannot derive any advantage

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from the fact that the witnesses have not deposed anything about the negligence.

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The accused, Balwinder Katoch, did not produce his driving licence. The burden was upon him under Section 106 of the Indian Evidence Act to establish that he had a valid driving licence to drive the vehicle. Therefore, learned Courts below had rightly held that Balwinder Katoch is guilty of driving the vehicle without any valid driving licence.

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The witnesses stated that they sustained injuries in the accident. Learned defence counsel admitted the MLCs. The MLCs of Shashi Pal (Ex.PA2), Neeraj Kumar (Ex.PA1), Sarwan Kumar (Ex.PA3), Vikas (Ex.PA5), Sabu Devi (Ex.PA6), Gorja Devi (Ex.PA7), Bunty Kumar (PA8), Vikas (Ex.PA9), Pinky Devi (Ex.PA-10), Badri Nath (Ex.PA-11) and Abhay (Ex.PA12) show that they had sustained simple injuries. MLCs of Sunny (Ex.PA4), Bunty Kumar (Ex.PA-8) and Harish Kumar (Ex.PA-13) show that they had sustained grievous injuries. The postmortem report of Shabu (Ex.PW10/A) shows that the death occurred due to a head injury because of the breakage of small bones and massive haemorrhage. Thus, it was duly proved that Shabu Devi had died in the motor vehicle accident. Since the accident was caused because of the negligence of the accused; therefore, the learned Trial Court had rightly convicted the accused Balwinder Katoch of the commission of offences punishable under Sections 279, 337, 338 and 304-A of the IPC.

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It was admitted by Shashi Pal (PW1), Bunty (PW2), Pinki Devi (PW3), Sarwan Kumar (PW4), Sunny Kumar (PW5) and Badri Nath (PW6) that the vehicle was a goods carriage vehicle. The registration certificate of the vehicle also shows

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that it was a three-wheeler (goods). The accused was carrying passengers in it. He has failed to produce any permit for transporting the passengers in it, and the learned Trial Court had rightly held him guilty of the commission of an offence punishable under Section 192-A of the Motor Vehicle Act.

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It was submitted that no notice of accusation was put to the accused for the commission of an offence punishable under Section 192-A of the MV Act, and the learned Trial Court erred in convicting the accused of the commission of an offence punishable under Section 192A of the MV Act. This submission cannot be accepted. Section 255(3) of Cr.P.C. provides that a Magistrate may convict the accused of any offence triable under the chapter, which is established from the facts admitted or proved to have been committed, whatever the nature of the complaint or summons, if the Magistrate is satisfied that the accused would not have been prejudiced thereby. In the present case, the accused was aware of the fact that he was transporting the children in the goods carrier. He did not deny that the children were travelling in a three-wheeler and were injured in the accident. He had admitted their MLCs, and the MLCs were exhibited based on the admission. Thus, no prejudice was caused

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to the accused by the fact that notice of accusation was not put to him for the commission of an offence punishable under Section 192A of the MV Act and the grievance of the petitioner/accused is not justified.

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The accused Narender was the owner of the threewheeler. He had permitted the accused Balwinder Katoch to drive it without verifying whether Balwinder had a valid driving licence or not. Thus, the learned Trial Court had rightly convicted him of the commission of an offence punishable under Section 180 of the Motor Vehicles Act.

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Learned Appellate Court sentenced the accused Balwinder Katoch to undergo simple imprisonment for a period of one year for the commission of an offence punishable under Section 279 of the IPC. Learned Appellate Court failed to look into the Section which provides maximum imprisonment of six months. Therefore, the learned Appellate Court could not have sentenced the accused to undergo imprisonment for one year for the commission of an offence punishable under Section 279 of the IPC. Similarly, the learned Appellate Court sentenced the accused to undergo simple imprisonment for one year for the

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commission of an offence punishable under Section 337 of the IPC. Section 337 of IPC provides the punishment for six months, and the learned Appellate Court could not have sentenced the accused to undergo simple imprisonment for one year for the commission of an offence punishable under Section 337 of IPC. Therefore, the sentence imposed upon the accused by the learned Appellate Court for the commission of offences punishable under Sections 279 and 337 of the IPC cannot be sustained. Hence, these are ordered to be set aside, and the sentences imposed by the learned Trial Court are ordered to be restored.

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Learned Appellate Court sentenced the accused to undergo simple imprisonment for one year for the commission of an offence punishable under Section 338 of the IPC, which is punishable with imprisonment of two years. This sentence cannot be said to be excessive because many children had sustained grievous injuries in the accident. Thus, no interference is required with the sentence imposed by the learned Appellate Court.

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Learned Appellate Court sentenced the accused to undergo simple imprisonment for one year for the commission of an offence punishable under Section 304-A of IPC, which is punishable with imprisonment of two years. This sentence is not excessive because a precious life was lost. This Court held in State of H. P. Versus Sushil Kumar 2010(1) HLJ 298 that no leniency should be shown to a person convicting or for driving a vehicle in a rash or negligent manner. It was observed:

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“21. Insofar as the sentence part is concerned, in my considered opinion, the learned trial Court has lost sight of the fact that there has been a spiralling increase in motor vehicular accidents in recent years. Thousands of valuable lives are being lost by a sheer act of rash and negligent driving, which is more than the loss of lives in any war between countries.

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The Supreme Court in Dalbir Singh v. State of Haryana (2000) 5 SCC 82 on the question of sentence in a case of an identical nature stated:-

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"13. While considering the question of a sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of an automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that rash driving need not necessarily cause an accident; or even if any accident occurs, it need not necessarily result in the death of any human being; or even if such death

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ensues, he might not be convicted of the offence and lastly, that even if he is convicted he would be dealt with leniently by the Court. He must always keep in mind the fear psyche that if he is convicted of the offence for causing the death of a human being due to his callous driving of the vehicle, he cannot escape a jail sentence. This is the role which the Courts can play, particularly at the level of trial Courts, for lessening the high rate of motor accidents, due to callous driving of automobiles."

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Hon'ble Shri Justice K.G. Balakrishnan, as he then was, while speaking for the Court, in State of Karnataka v. Sharanappa Basnagouda Aregoudar, AIR 2002 Supreme Court 1529 , where the accused was held guilty for causing the death of four persons and the High Court took a lenient view in sentencing the accused, observed:-

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"We are of the view that, having regard to the serious nature of the accident, which resulted in the death of four persons, the learned Single Judge should not have interfered with the sentence imposed by the Court below. It may create and set an unhealthy precedent and send wrong signals to the subordinate Courts, which have to deal with several such accident cases. If the accused are found guilty of rash and negligent driving, Courts have to be on guard to ensure that they do not escape the clutches of law very lightly. The sentence imposed by the Courts should have a deterrent effect on potential wrongdoers, and it should be commensurate with the seriousness of the offence. Of course, the Courts are given discretion in the matter of sentence to take stock of the wide and varying range of facts that might be relevant for fixing the quantum of sentence, but the discretion shall be exercised with due regard to the larger interest of the society and it is needless to add that passing of sentence on the offender is probably the most public face of the criminal justice system."

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Therefore, on the examination of the matter in the above circumstances and on facts, I think no word is sufÏcient to criticise the conduct and prudence of the learned trial Magistrate dealing with the point of sentence in a shockingly reckless manner. Looking at the gravity of the offence, the sentence imposed by the learned trial Court is wholly inadequate. The learned trial court has inflicted a fleabite sentence on the respondent who has not atoned adequately for his misadventure.”

¶185

It was submitted that the benefit of the Probation of

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Offenders Act should have been extended to the accused. This submission will not help the accused. It was laid down by the Hon'ble Supreme Court in Dalbir Singh Versus State of Haryana (2000) 5 SCC 82 that the benefit of the Probation of Offenders Act cannot be granted to a person convicted of the commission of offences punishable under Sections 279, 304-A of the IPC. It was observed:

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“11. Courts must bear in mind that when any plea is made based on S. 4 of the PO Act for application to a convicted person under S. 304-A of I.P.C., road accidents have proliferated to an alarming extent, and the toll is galloping up day by day in India and that no solution is in sight nor suggested by any quarters to bring them down. When this Court lamented two decades ago that "more people die of road accidents than by most diseases, so much so the Indian highways are among the top killers of the country", the saturation of accidents toll was not even half of what it is today. So V. R. Krishna Iyer, J., has suggested in the said decision thus :

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"Rashness and negligence are relative concepts, not absolute abstractions. In our current conditions, the

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law under S. 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 speeding menaces."

¶192

In State of Karnataka v. Krishna alias Raju (1987) 1 SCC 538 this Court did not allow a sentence of fine, imposed on a driver who was convicted under S. 304-A, I.P.C. to remain in force although the High Court too had confirmed the said sentence when an accused was convicted of the offence of driving a bus callously and causing the death of a human being. In that case, this Court enhanced the sentence to rigorous imprisonment for six months besides imposing a fine.

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Bearing in mind the galloping trend in road accidents in India and the devastating consequences of visiting the victims and their families, Criminal Courts cannot treat the nature of the offence under S. 304-A, I.P.C. as attracting the benevolent provisions of S. 4 of the PO Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that rash driving need not necessarily cause an accident, or even if any accident occurs it need not necessarily result in the death of any human being, or even if such death ensues he might not be convicted of the offence, and lastly, that even if he is convicted he would be dealt with leniently by the Court. He must always keep in mind the fear psyche that if he is convicted of the offence of causing the death of a human being due to his callous driving of a vehicle, he cannot escape from a jail sentence. This is the role which the Courts can play, particularly at the level of trial

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Courts, for lessening the high rate of motor accidents due to the callous driving of automobiles.”

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A similar view was taken in Thakur Singh v. State of

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Punjab, (2003) 9 SCC 208, wherein it was observed: -

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6. Learned counsel lastly made an alternative plea that the Probation of Offenders Act may be applied to secure his job. This Court has held in Dalbir Singh v. State of Haryana [(2000) 5 SCC 82] that the Probation of Offenders Act cannot be invoked in cases involving rash or negligent driving of the bus resulting in the death of human beings.”

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In State of Punjab v. Balwinder Singh , (2012) 2 SCC 182 ,

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it was held: -

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13. It is a settled law that sentencing must have a policy of correction. If anyone has to become a good driver, they must have better training in trafÏc laws and moral responsibility, with special reference to the potential injury to human life and limb. Considering the increased number of road accidents, this Court, on several occasions, has reminded the criminal courts dealing with the offences relating to motor accidents that they cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act, 1958. We fully endorse the view expressed by this Court in Dalbir Singh [(2000) 5 SCC 82: 2004 SCC (Cri) 1208] .

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