A P RAJU Vs. STATE OF ORISSA

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment of the High court of orissa dated 1 1/4/1985 setting aside the order of acquittal passed by the Sub-Divisional Judicial Magistrate, Jeypore.

(2.) According to the prosecution case the appellant, while driving the vehicle belonging to the orissa State Road Transport Corporation caused an accident on 20/5/1979 on the road between Nowrangpur and Jeypore. As a result of the accident, Pradeep sustained injuries and ultimately succumbed to those injuries. The report of the accident was lodged at Police Station Boruguma by the conductor of the vehicle Public Witness 8. The appellant was tried for offences under sections 279/304-A Indian Penal Code.

(3.) According to the prosecution case, the deceased along with two other children was standing near a Baniyan tree when he was hit by the vehicle in question on the kuteha side of the road. The trial court before whom 11 witnesses were examined on behalf of the prosecution and one on behalf of theappellant, recorded an order of acquittal against the appellant on 13/3/1981. The trial court disbelieved the testimony of Public Witness 1, Public Witness 2, Public Witness 3 and Public Witness 4 mainly on the ground that their evidence was in conflict with the testimony of Public Witness 8. After taking into consideration, the report of the Motor Vehicle Inspector Public Witness 9, the trial court opined that since the appellant had applied brakes from a distance of about 22 metres but the brakes did not function in respect of 3 wheels and the. vehicle was dragged towards the western side, the appellant could not be said to have been rash or negligent. The trial court further opined that had the statement of PWs 1 to 4 been correct that they were not playing on the main road but were playing on the kutcha road, there was no occasion for the appellant to apply brakes and take the vehicle on the right side of the road and, therefore, disbelieved them and acquitted the appellant.