THE STATE OF U.P. Vs. BAHADUR

JUDGEMENT

(1.) The State of U.P. has filed this appeal against the judgement and order dated 5.9.1980 passed by Sri Ram Lal, Judicial Magistrate, Khurja, Bulandshahr acquitting accused-respondent Bahadur of the offence under Sec. 279 and 304-A, Indian Penal Code. According to the prosecution allegations, deceased Madan Pal, who was the son of informant Ram Sharan Singh Raghao, was going from his house to Model Inter College Thora on the road on 3.8.1977. At about 7.14 A.M., when the boy had reached about hundred yards beyond the brick-kiln, bus No. USL-7520, which was being driven by accused Bahahur, came from the opposite side. The bus was being driven very fast and the same crushed the boy as a result of which he died. The informant lodged the F.I.R. at police station Jawar, District Bulandshahr at 8.15 A.M. The investigation was conducted by S.I. Peetam Singh (P.W.6). The dead body was sent for post-mortem examination and after completing the investigation, charge sheet was submitted against the accused. The prosecution examined Ram Sharan Singh Radhao (P.W.1); Krishna Kumar (P.W.3) and Gyanendra Kumar (P.W.4) as eye-witnesses of the occurrence. Apart from this, other formal evidence was also produced. The accused pleaded not guilty to the offence charged. He denied that the boy was crushed by bus USL-7520 which he was driving. He alleged that on that day, bus No. UPP-5415 was proceeding from Khurja towards Jawar, some boys, including the deceased, climbed the bus from the outside and when they were travelling in this manner, the deceased fell down as a result of which he was injured and died. The accused produced two witnesses in defence. The learned Magistrate has held that in fact the deceased had died as he had been crushed by the bus which was being driven by the accused and he did not accept the defence version mentioned earlier. However, it was held that the prosecution evidence has not been able to establish that the accused was driving the bus rashly or negligently. In view of this finding, the accused was acquitted. In this appeal, it has been argued on behalf of the State that the finding recorded by the learned Magistrate was based on conjecture and surmises and was bad in law. It has also been argued that the evidence on record was sufficient to prove that the accused was driving the bus rashly and negligently. We have heard the counsel for the parties and perused the record of the case. The learned counsel for the accused-respondent has argued that the learned Magistrate has given sufficient and valid reasons for holding that the prosecution evidence was insufficient to prove that the accused was driving the bus rashly or negligently. It has also been argued that there was no reason for allowing this appeal against the order of acquittal which was based on material on record. In case of appeal against acquittal, this Court can interfere if it finds that the judgement by the trial court was perverse or the material evidence was ignored or the view which was taken, was unreasonable and could not have been taken on the basis of the evidence on record. However, in case the view taken by the trial court could reasonably be taken, this court will not interfere merely because a different view could have been taken on the basis of the same evidence. In the present case, the learned Magistrate has held that victim Madan Pal had died as he was hit and crushed by the bus which the accused was driving. In support of this finding the learned Magistrate has given reasons. He has analysed the prosecution evidence including the post-mortem report which supports the contention that the boy was crushed under the wheels of the bus. The plea taken by the accused shifting the blame on the deceased was rightly rejected by the trial Court. However, merely because the boy had died after being hit by the bus driven by the accused, it cannot be presumed that the accused was driving the bus rashly or negligently. The prosecution has to establish this fact. In the F.I.R. it was alleged by the informant that the boy was moving on the road when he was crushed by the bus. In his statement before the trial court, the informant asserted that the boy was actually moving on the left Kuchcha portion of the road and not on the pucca portion of the road and not on the pucca portion and it was then when the bus swerved towards the right and hit and crushed the boy. The other prosecution witnesses have also stated the same thing in their statements. The site plan (Ext.Ka-1) prepared by the Investigation officer however, shows that the dead body of the boy was found lying in the middle of the pucca portion of the road. In case the boy had been travelling on the left Kuchcha Patri of the road and had been hit by the right portion of the bus coming from the opposite direction, then the body would have been found on the Kuchcha Patri, or even to the east of the same, and not on the middle of the pucca road. It appears that the boy was either walking on the Pucca portion of the road or it could be inferred that he was trying to cross the road when the bus hit him. In the F.I.R. it was not alleged by the informant, who asserted that he was an eye-witness of the occurrence, that the accused was driving the bus rashly or negligently. He has merely mentioned that the bus being driven fast. In their statements, one of the witnesses, has stated that the bus was driven at the speed of 60 kms. and the other witness said that it was being driven at the speed of 50 kms. These witnesses were not travelling in the bus and at best it can be said that their statements on this point were merely guess-work. Even if it is accepted that the bus was being driven at a fast speed, it will not necessarily lead to the conclusion that the same was being driven rashly or negligently. The learned Magistrate has considered this aspect of the matter and has come to the conclusion that it has not been established that the bus was being driven by the accused rashly or negligently. We have considered the reasons given by the learned Magistrate while deciding this question and we are unable to hold that the same were unreasonable or improper. In the circumstances, we have no reason to interfere with the order of acquittal recorded by the learned Magistrate. The appeal is, in the circumstances, dismissed. Appeal Dismissed.