Keshavanarayana, J

This appeal filed under Section 378 (1) and (3) of Cr.P.C by the State is directed against the judgment and order dated 28.2.2007 passed by the I Additional C.J.M, Mysore in C.C.No 1072/2005 acquitting the respondent - accused of the charges levelled against him for the offences punishable under Sections 279,338 and 304-A of IPC.

2. The respondent - accused was charge sheeted by the K.R Traffic Police, Mysore for the aforesaid offences inter alia alleging that on 27.6.2005 at about 11.00 A.M the accused while as driver of KSRTC bus bearing registration No. KA 09.F 2124 drove the said bus on Mysore - Manandavadi Road in a rash and negligent manner so as to endanger human life and near the NIE College, while over taking the bullock-cart going ahead of him dashed against a Fierro motor cycle bearing registration No. KA 09/3C.3978 driven by one Venkat along with PW.3-Ramachandra as pillion rider which came from the opposite direction and after dashing the motor cycle, dragged the motor cycle to some distance along with its rider and pillion rider and ultimately stopped the bus on the right side mud road and as a result of this, the rider as well as the pillion rider sustained grievous injuries and subsequently the rider of the motor cycle succumbed to injuries and thus the accused has committed the aforesaid offences.

3. The respondent, upon service of summons, appeared before the Learned Magistrate and pleaded not guilty for the charges levelled against him and claimed to be tried. To bring home the guilt of the accused, the prosecution examined PWs. 1 and 2 who were stated to be the eye-witnesses to the accident, PW.3-pillion rider and two other witnesses as PWs. 4 and 5. Exs.P.1 to P. 10 were marked.

4. During his examination under Section 313 Cr.P.C the accused merely denied all the incriminating circumstances appearing against him in the evidence of the prosecution witnesses. The accused did not choose to lead any defence evidence. The defence of the accused is one of total denial and that the accident occurred on account of the negligence of the deceased himself in riding the motor cycle and that there was no negligence on his part.

5. The Learned Magistrate, after hearing both sides and on assessment of the oral as well as documentary evidence, by the judgment under appeal, acquitted the accused holding that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. The Learned Magistrate disbelieved the evidence of PWs. 1 to 3 and held that their testimonies do not indicate that the accident occurred on account of the negligence of the bus driver. It is against this judgment of acquittal, the State has presented this appeal.

6. Upon service of notice of this appeal, the respondent appeared through his Counsel. I have heard Sri. B. Balakrishna, Learned Additional Government Pleader appearing for the appellant - State and Sri. S. Balan, Learned Counsel appearing for the respondent-accused.

7. Sri. B. Balakrishna, would submit as under:

That the judgment of the Learned Magistrate is perverse, illegal and contrary to the evidence on record; that the learned Magistrate has, for strange and unacceptable reasons, disbelieved the evidence of PWs. 1 to 3 though evidence of PWs. 1 to 3 is consistent and cogent as to the manner in which the accident occurred, therefore, the rejection of the evidence of PWs. 1 to 3 by the learned Magistrate is perverse and illegal; that having regard to the undisputed facts that the accident occurred as a result of collision between KSRTC bus and the motor cycle and the respondent - accused was the driver of the offending bus, and from the manner in which the accident occurred as spoken to by PWs. 1 to 3 and as depicted in Ex.P.4 - spot sketch prepared by the Investigating Officer, it is manifestly clear that the respondent - accused as driver of the KSRTC bus in the process of overtaking the bullock-cart moving ahead of him in the same direction, even after seeing the two wheeler coming from the opposite direction, proceeded further and dashed against the said motor cycle resulting in the death of the rider and injuries to the pillion rider of the motor cycle. In that view of the matter, according to the learned Additional Government Pleader, the learned Magistrate ought to have convicted the accused for the offences for which he had been charged as such the judgment of the Court below is liable to be set aside and the respondent is liable to be convicted for the aforesaid offences.

8. On the other hand, Sri. S. Balan, Learned Counsel for the respondent - accused sought to justify the judgment of the Court below and further contended that the learned Magistrate after proper evaluation of the evidence of PWs. 1 to 3 and by assigning cogent and acceptable reasons, has held that PWs. 1 and 2 have not witnessed the actual collision and they do not know the reason for the accident and since the evidence of PW.3 indicated that he was not in a position to identify the driver of the bus as also the speed at which the bus was driven, the Learned Magistrate has rightly disbelieved the evidence of PWs. 1 to 3 and there is no illegality or irregularity committed by the learned Magistrate in acquitting the accused; that since the evidence on record clearly disclosed that the accused for the purpose of over taking the bullock-cart going ahead of him, moved on to the right side of the road, the deceased as rider of the motor cycle ought to have avoided the bus coming from the opposite direction, either by stopping the vehicle at a distance so that the bus could complete the overtaking and then move on to the left side of the road or by moving on to the extreme edge of the road, but instead the rider of the motor cycle proceeded further even after seeing the bus trying to overtake the bullock-cart and in the process hit the bus in question, as such, the accident was not due to the negligence of the bus driver on the other hand it was due to the negligence of the rider of the motor cycle himself, therefore, the Court below is justified in acquitting the accused. According to the Learned Counsel, the judgment of the learned Magistrate is in accordance with law and evidence on record, and since there is no perversity in the judgment, this Court sitting in appeal should not lightly interfere with the reasoned judgment of the Court below.

9. I have bestowed my serious considerations to the submissions made by the Learned Counsel on both sides. Perused the records and the judgment under appeal.

10. The perusal of the records and the suggestions put to the prosecution witnesses during the cross-examination indicates that the respondent - accused has not disputed the fact that he was the driver of the KSRTC bus bearing registration No. KA 09.F 2124 and he drove the said bus on the ill-fated day on Mysore - Manandavadi Road and the said bus was involved in an accident and collided with the motor cycle near NIE College. It is pertinent to note that the accused during his examination under Section 313 Cr.P.C did not contend that he was not the driver of the bus which was involved in the accident nor he has said that the bus driven by him did not meet with any accident on that day. Therefore, from this it is clear that the involvement of the bus in question and the identity of the accused as driver of the bus are not in dispute.

11. PWs. 1 and 2 have consistently stated in their evidence that on the date of the accident at about 11.20 A.M while they were drinking tea near the tea stall situated on the Eastern side of the road opposite to the NIE College, they saw the KSRTC bus while trying to over take the bullock-cart going ahead of the bus dashing against the motor cycle which came from the opposite direction and after hitting the motor cycle, the bus dragged the motor cycle and its riders to some distance and thereafter, stopped on the foot path situated on the western side of the road. It is their specific say that the right portion of the bus dashed against the motor cycle and the motor cycle as well as its riders were caught under the right front wheel of the bus and they were dragged.

12. PW.3, who was stated to be the pillion rider on the motor cycle, has given graphic account of the manner in which the accident occurred. According to his evidence, he was proceeding in the motor cycle as pillion rider with the deceased Venkat a rider from Silk Factory side on the left side of the road, and near NIE College, the KSRTC bus came from opposite direction at a high speed and while overtaking the bullock-cart going ahead of the bus, the driver moved on to the extreme right side of the road viz., extreme western side of the road and dashed against the motor cycle. Though these witnesses have been cross-examined by the defence counsel, nothing is elicited to discard their evidence.

13. From PW.1 in the cross-examination, it is elicited that after hearing the sound, he turned and saw the accident. He has denied all other suggestions including the suggestion that he did not see the accident. In fact, when PW. 1 was cross-examined immediately after his examination-in-chief, nothing was suggested to him regarding the accident. However, he was recalled twice for the purpose of further cross-examination, at the request of the accused and during further cross-examination, certain suggestions relating to the accident were put to him, which, he denied. Nothing is elicited from PW.2 to indicate that he could not see the accident in question. The only material suggestion put to him in the cross-examination was since the bullock-cart was going ahead of the bus he could not see the bus, but he has denied this suggestion. This suggestion is incongruous, as the bullock-cart cannot cover the bus, as the bus is taller than the bullock-cart and the seat of the driver of the bus itself will be above the height of bullock-cart. In fact it is not suggested to PW.2 that he was not present near the tea stall and he did not see the accident. Thus, the presence of PW.2 near the tea stall is not seriously disputed in the cross-examination. There is no suggestion to PW.2 that he did not witness the actual collision between the two vehicles. In fact, from the tenor of cross-examination of PWs. 1 to 3 on behalf of the accused indicates that the accused seriously did not dispute the fact that the collision took place on the extreme western side of the tar road while the bus driver was overtaking the bullock-cart which was going ahead of him.

14. In the cross-examination of PW.3, there was no suggestion that he was not proceeding as pillion rider on the motor cycle. In fact, the evidence on record shows that he was injured in the accident and for several days he was treated as in-patient in the hospital. Therefore there is no difficulty in believing his evidence that he was proceeding as pillion rider on the motor cycle, as such he was the best witness to speak as to the manner in which the accident occurred. However, the learned Magistrate for strange and peculiar reasons has disbelieved the evidence of PW.3 The learned Magistrate has disbelieved the evidence of PW.1 on the ground that in his cross-examination he has stated that after hearing the sound he turned round and came to the place of the accident; he disbelieved the evidence of PW.2 on the ground that while drinking tea near the tea stall he could not concentrate as to what happens on the road and that he could not see the bus as a bullock-cart was proceeding ahead of the bus. He disbelieved the evidence of PW.3 on the ground that he could not identify the driver of the bus though he saw the bus coming from a distance of 10 to 15 feet and he could not say the speed at which the bus was driven. I fail to understand as to how the evidence of these witnesses could be disbelieved for the above reasons. When it is shown that PW.3 was the pillion rider of the motor cycle and when it was not disputed that the accused was the driver of the bus which was involved in the accident, the fact that the pillion rider did not identify the bus driver should not be a ground to reject his evidence. On the ground that PW.3 could not say the speed with which the bus was driven, his evidence could not have been disbelieved, as, in a prosecution for the offence under Sections 279, 338 and 304-A IPC, the question required to be considered is whether, the accused drove the vehicle in a rash and/or negligent manner so as to endanger human life. In my opinion, the reasons assigned by the Learned Magistrate to reject the evidence of PWs. 1 to 3 are not proper and are irrelevant reasons. The evidence of PWs. 1 and 2 clearly establish that they were present near the tea stall and they had seen the accident. The evidence of PW.3 who was the pillion rider is convincing and acceptable. For improper and irrelevant reasons, the learned Magistrate has disbelieved the evidence of PWs. 1 to 3. Therefore, the finding of the Learned Magistrate in this behalf is perverse and illegal.

15. Now the question is whether the accused drove the bus in a rash and negligent manner so as to endanger the human life as required under Sections 279,338 and 304-A of IPC?

16. The expressions ‘Rash and Negligence’ have not been defined in the Penal Code. However, in catena of decisions, the Apex Court has explained the meaning of these expressions. Negligence is generally defined to be, “a breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of the human affairs would do or doing something which a prudent and reasonable man would not do”.

In Balachandra Waman Pathe v. The State of Maharashtra . 1968 ACJ 38, the Apex Court has explained the distinction between rash ‘act’ and negligent ‘act’ in para 11 as under:

“11. An offence under Section 304-A Indian Penal Code may be committed either by doing a rash act or a negligent act. There is a distinction between a rash act and a negligent act. In the case of a rash act as observed by Staight, J. in Idu Beg's case [ILR 3 ALL. 776] the criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Again as explained in Nidamarti Negaghushanam's case [7 Mad. H.C.R 119], a culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and if he had he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection.”

In Jacob Mathew v. State of Punjab and Another . 2005 6 SCC 1, the Apex Court while considering the case of medical negligence has stated as to what constitutes negligence as a tort and as a crime in paras 12 to 14 as under:

“12. The term “negligence” is used for the purpose of fastening the defendant with liability under the civil law and, at times, under the criminal law. It is contended on behalf of the respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of thought running ever since the beginning of the emergence of the concept of negligence up to the modern times. Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. The essential ingredient of mens rea cannot be excluded from consideration when the charge in a criminal Court consists of criminal negligence. In R. v. Lawrence [(1981) 1 ALL ER 974] Lord Diplock spoke in a Bench of five and the other Law Lords agreed with him. He reiterated his opinion in R. v. Caldwell [(1981) 1 ALL ER 961] and dealt with the concept of recklessness as constituting mens rea in criminal law. His Lordship warned against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being “subjective” or “objective”, and said: (All ER p.982e-f)

“Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting ‘recklessly’ if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it.”

13. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they do not occur, but this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimising violations, may be motivated by thrill-seeking. These are clearly reckless.

14. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences, xxx”

Again in the case of Rathnashalvan v. State Of Karnataka . 2007 3 SCC 474, The Apex Court has considered as to what constitutes rashness and negligence as occurring in Section 304-A IPC, in paras 7 to 9 of the judgment as under:

“7. Section 304-A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.

8. As noted above, “rashness” consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted.

9. The distinction has been very aptly pointed out by Holloway, J. in these words:

“Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness (luxuria). Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that if he had he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection.” (See Nidamarti Nagabhushanam, In re [7 Mad HCR 119], Mad HCR pp. 119-20.]

17. In the case on hand, from the oral and documentary evidence, it is established that the accused as driver of the KSRTC bus while proceeding from North to South on a road having width of 40 feet with mud roads measuring 10 feet on either sides, for the purpose of over taking the bullock-cart going ahead of him in the same direction, moved on to the extreme western side of the road that is to his wrong side and in the process dashed against the motor cycle which came from the opposite direction on its correct side of the road. Before doing so, it was necessary on his part to see as to whether his act of over taking would cause any danger to any other person or vehicle coming from the opposite direction or from any direction. It was only if no other vehicle was coming from the opposite direction and he could safely pass through the bullock-cart going ahead of him by overtaking it, he should have proceeded further.

18. The Central Government in exercise of its power under Section 118 of the Motor Vehicles Act has framed the regulations called “Rules of Road Regulations, 1989” and the same has come into force from 1.7.1989 Regulation No. 6 deals with over taking prohibited in certain cases. According to this regulation, the driver of a motor vehicle shall not pass a vehicle travelling in the same direction as himself if his passing is likely to cause danger to other traffic proceeding in any direction. In the light of this, the accused as driver of the KSRTC bus before overtaking the bullock-cart going ahead of him should have seen as to whether his Act would cause danger or inconvenience to the vehicle/s coming from opposite or any other direction. Without taking such care or caution, the respondent - accused proceeded to overtake the bullock-cart and unmindful of the fact that a motor cycle was coming from the opposite direction on the correct side of the road, the accused proceeded further and dashed against the motor cycle. In the light of the above, there is no substance in the argument of Sri. S. Balan that the rider of the motor cycle ought to have stopped the vehicle after seeking the bus and avoided the collision. As the rider was moving on the correct side of the road, and he was not overtaking any vehicle, there was no duty cast on him to stop the vehicle. Thus the respondent - accused did not take such care and caution which a prudent and reasonable man was required to take in the circumstance of the case and in spite of the fact that two wheeler was coming from opposite direction, by keeping to its correct side, the respondent instead of stopping the bus and avoid overtaking the bullock-cart going ahead of him as it was likely to cause danger to the two wheeler coming from the opposite direction, proceeded further wantonly and ultimately caused injury to both the rider and pillion rider of the two wheeler. Thus the facts and circumstances of this case clearly indicate that there is culpable rashness and negligence on the part of the accused. He did not act as a prudent and reasonable driver would have done in such circumstance.

19. Ex.P.4 is the sketch prepared by the investigating officer during the investigation and Ex.P.2 is the spot mahazar. If the contents of Exs.P.2 and P.4 are read together, it is clear that the actual collision took place at a distance of about 5 feet from the western edge of the tar road. The correctness of the contents of Exs.P.2 and P.4 is not disputed by the accused. Thus from the contents of Exs. P.2 and P.4, it is clear that the accident occurred almost at the western edge of the road, which was wrong side to the direction in which the bus was proceeding. The evidence on record indicates that the right front portion of the bus dashed against the motor cycle and the motor cycle came under the right front wheel of the bus and ultimately the bus after dragging the motor cycle to a distance of about 20 feet stopped on the foot path situated on the western side. From this, it is manifestly clear that the bus driver drove the bus in a rash and negligent manner and the vehicle was not under his control. He was not in a position to bring the bus to halt and in the absence of any tyre mark on the road, it appears the accused also did not make any effort to apply brake to stop the bus. No doubt there is no clear evidence as to whether the driver of the bus drove the vehicle at a great speed. However, the speed by itself is not the sole factor to decide the culpability of the driver of the vehicle, and it is the rash and negligent act which is very much necessary to be considered. The question as to whether a person drove the vehicle in a rash and negligent manner depends upon the facts and circumstances of each case. The totality of the circumstances has to be taken to find out as to whether there was rash and negligent act on the part of the accused person. In the case on hand by taking the entire evidence on record as a whole and the silence on the part of the accused, it is clearly established that the respondent - accused drove the bus in a rash and negligent manner and that was responsible for the accident which resulted in the death of one person and injury to another. Accused who was the driver of the bus which involved in the accident had the special knowledge as to how the accident occurred and as to whether or not he was responsible for the accident. Unfortunately, during the examination under Section 313 Cr.P.C, the accused has not come out with any explanation. He has merely denied all the incriminating circumstances put to him. He did not come out with any explanation as to how the accident occurred.

20. Under these circumstances, I am of the opinion that the judgment of the Learned Magistrate acquitting the accused is perverse, illegal and contrary to the evidence on record. The Learned Magistrate for irrelevant and unacceptable reasons has disbelieved the evidence of the material witnesses, which has resulted in an erroneous judgment. Therefore, the judgment under appeal cannot be sustained and is liable to be set aside. From the evidence on record, this Court is convinced that the prosecution has proved the guilt of the accused for the offences for which he has been charged namely Sections 279,338 and 304-A of IPC, beyond reasonable doubt.

21. I have heard Sri. S. Balan, Learned Counsel appearing for the respondent regarding sentence. The learned counsel submits that the incident occurred about 5 years back and at that time the accused was aged about 51 years and by now he is aged about 56-57 years as such he is at the fag end of his service, therefore, lenient view may be taken while imposing sentence.

22. The Hon'ble Supreme Court in catena of decisions has laid down the sentencing policy. Whenever an accused is found guilty of an offence he has to be commensurately sentenced so that it should have deterrent effect on potential wrong doers, and with a view to prevent the recurrence of such incident.

23. In the case of State of Karnataka v. Krishna @ Raju . 1987 Supreme Court Cases Cri 198, the Apex Court while dealing with a case in which the accused had been sentenced to pay only fine for offence under Section 304-A IPC, has observed in paras 6 to 8 as under:

“6. The utter disregard shown by the Magistrate to the nature of the offences, particularly the one under Section 304-A, IPC, and the sentences provided for them under the Indian Penal Code and the Motor Vehicles Act, by imposing what may be termed as ‘flea-bite’ sentences on the respondent, should have spurred the High Court to not only pass appropriate strictures against the Magistrate but also to set right matters by enhancing the sentence at least for the conviction under Section 304-A, IPC to a conscionable level in exercise of its powers under Section 377, IPC.

7. The High Court has failed to comprehend that the respondent has been let off with a total fine of Rs. 345 for his convictions under all the five charges relating to the death of one person and the sustainment of injuries by another due to his rash and negligent driving besides his failure to secure medical assistance to the victims as well as his failure to make a report to the authorities about the accident. The reasons given by the High Court are really non-existent as well as irrelevant ones. It is not as if the respondent had been charged or convicted for a grave offence punishable with death or imprisonment for life and his fate had remained in suspense for a long time and as a consequence thereof, he had undergone mental agony and torment for a long period of time. Here was a case where the respondent had not only driven his bus in a reckless manner and caused the death of one person and injuries to another but he had also attempted to escape prosecution by failing to report the accident to the police authorities. Considerations of undue sympathy in such cases will not only lead to miscarriage of justice but will also undermine the confidence of the public in the efficacy of the criminal judicial system. It need be hardly pointed out that the imposition of a sentence of fine of Rs. 250 on the driver of a motor vehicle for an offence under Section 304-A, IPC and that too without any extenuating or mitigating circumstance is bound to shock the conscience of anyone and will unmistakably leave the impression that the trial was a mockery of justice.

8. We are, therefore, constrained to do what the High Court should have done but failed to do viz., enhance the sentence in the interests of justice. We, however, feel that the ends of justice would be met by enhancing the sentence for the most serious of the charges for which the respondent has been convicted viz., the charge under Section 304-A, IPC. Accordingly we enhance the sentence for the conviction under Section 304-A, IPC to six months RI and fine of Rs. 1000 in default to undergo RI for two months. We leave undisturbed the other convictions and sentences.”

In the case of State of Karnataka v. Sharanappa Basanagoudaaregoudar . 2002 3 Supreme Court Cases 738 once again the Supreme Court has observed thus in para 6 as under:

“6. 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 courts 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 deterrent effect on potential wrongdoers and it should 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 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.”

In B. Nagabhushanam v. State Of Karnataka. . 2008 5 Supreme Court Cases 730, the Apex Court has observed thus in paras 14 and 15:

“14. We are of the opinion that six months' simple imprisonment and a direction to the appellant to pay a fine of Rs. 1000 for commission of the offence punishable under Section 304-A and simple imprisonment for one month and to pay a fine of Rs. 500 for the offence punishable under Section 279 of the Penal Code cannot be said shocking.

15. We may, in this connection, notice that in Dalbir Singh v. State Of Haryana. [(2000) 5 SCC 82] this court opined: (SCC p.87, para 13)

“13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 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 a rash driving need not necessarily cause any 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 his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of the vehicle he cannot escape from 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.”

24. In the light of the judgments of the Hon'ble Supreme Court, the question of showing any leniency to the respondent - accused does not arise. Taking into consideration, the facts and circumstances of this case and the manner in which the accident occurred, the gravity of the offence for which the respondent - accused has been convicted, it is just and proper to sentence the respondent - accused for imprisonment for a period of six months and to pay fine of Rs. 5,000/- for the offence punishable under Section 304-A of IPC. In view of this, it may not be necessary to sentence the respondent separately for the other two offences.

25. Accordingly, the appeal is allowed. The judgment and order dated 28.2.2007 passed by the I Additional C.J.M, Mysore in C.C.No 1072/2005 acquitting the respondent - accused is hereby set aside. The respondent - accused is convicted for the offences punishable under Section 279, 338 and 304-A IPC. The bail and surety bonds of respondent - accused are ordered to be cancelled.

26. Accordingly, the respondent - accused is sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs. 5,000/- for the offence punishable under Section 304-A IPC.

27. The respondent - accused shall surrender before the Learned Magistrate on or before 17.4.2010 and upon his surrender, the Learned Magistrate shall commit him to the prison to serve out the sentence. If the respondent - accused fails to surrender himself before the Learned Magistrate within the aforesaid period, the Learned Magistrate shall take further steps to secure the presence of the accused and then commit him to prison.

28. A free copy of this judgment be furnished to the accused through his Learned Counsel. Registry is directed to send the records along with a copy of this judgment to the Court below forthwith.