STATE OF ORISSA Vs. A P RAJU

JUDGEMENT

(1.) THIS is an appeal against the order of acquittal passed by the Sub -divisional Judicial Magistrate, Jeypore, in G.R. Case No. 321 of 1979. The accused -respondent was a driver in the O. S. R. T. C. Bus bearing registration number OSC 2568 and on 20.5.1979 while it was being driven by the accused in a rash and negligent manner, it dashed against a boy called Pradeep Kumar, who succumbed to the injuries. The conductor of the bus (P. W. 8) lodged an F.I.R. at Boriguma Police Station and after necessary investigation charge sheet was filed against the accused under Sections 279 and 304A, Indian Penal Code and accused stood his trial for the said offences.

(2.) ACCORDING to the prosecution case, three boys were standing under a banyan tree by the side of the main road when the vehicle being driven by the accused with a. high speed dashed against Pradeep Kumar in consequence of which he was thrown to a distance and became unconscious and ultimately the boy died. The defence was that the accused blew the horn and applied the brakes and two out of the three boys crossed the road while the third one was hit by the bumper of the bus which was on account of the fact that the brakes did not operate effectively and this was a pure case of accident without any manner of rashness or negligence on the part of the accused.

(3.) MR . Behera, the learned Additional Standing Counsel, appearing for the State, contends that the evidence in this case unequivocally points out the rashness and negligence of the driver and the learned Magistrate committed gross error in appreciating the said evidence which has caused gross miscarriage of justice and, therefore, the order of acquittal is liable to be set aside. Mrs. Padhi, the learned counsel for the respondent, submits that the appreciation of evidence made by the learned Magistrate cannot be said to be perverse and even if two views are possible to be taken on the evidence, the order of acquittal should not be interfered with by the High Court. In support of this contention, the learned counsel relies upon two decisions of the Supreme Court in the case of Bhim Singh, Rup Singh v. State of Maharastra A. I. R. 1974 Supreme Court, 286 and Solanki Chimanbhai Ukabhai v. State of Gujarat, A.I.R. 1983 Supreme Court, 484. According to the learned counsel there was no rashness or negligence on the part of the driver of the bus and it was a pure case of accident which could not be avoided in spite of the driver taking all reasonable care and precaution.