M.S. Jamdar, J.
1. This is a State Appeal against the order of acquittal passed by the learned Judicial Magistrate, F.C., Koregaon in Summary Case No. 150 of 1979 acquitting the respondent of the offences under sections 279, 304-A, IPC and section 116 of the Motor Vehicles Act.
2. The respondent was prosecuted for the aforesaid offences for driving his truck in rash and negligent manner and thereby causing death of one Babu Hari Jadhav.
3. The incident took place at about 12.00 noon on 12-2-1979 near Mugaon ` at a distance of about 175 feet Mile Stone No. 2 on Satara-Koregaon road, which runs west-east. Koregaon being to the east of Satara. At that time the deceased Babu was proceeding by the southern side of the road, following his cattle while his companion Raghunath Londhe was moving by the northern side of the road, towards Koregaon. It is the prosecution case that the respondent, who was driving his truck bearing No. MHD 4466, on his way from Satara to Koregaon, suddenly moved to the southern side of the road and gave a dash to Babu who was proceeding ahead. As a result of the impact, Babu fell down and came under the front right wheel of the truck and sustained injuries, which ultimately proved fatal.
4. The report of the accident was lodged with the Koregaon Police Station by one Bacharam Dhondiba Katkar, one of the persons travelling in the truck at the material time. Police Jamadar Vishnu Dnyanu Vaze, who was directed to make inquiry, went to the spot and made a panchanama (Ex. 14) of the scene of offence.
5. It appears that Babu was sent to the Civil Hospital of Satara, but he succumbed to the injuries which were as follows :
(i) abrasion on the right frontal bone 1 1/2' x 1/2'
(ii) bruise on the right ear 1/2' x 1/2'
(iii) abrasion on the right shoulder top 2' x 1/2'
(iv) Crush injury on the right complete leg 16' x 6' x 1/2'
As mentioned in the post-mortem notes, Ex. 10, which were accepted on admission under section 294 of Cri.P.C., the 2nd, 3rd, 4th, 5th and 7th ribs on the right side were fractured and the right kidney was completely damage, causing shock, which proved fatal.
6. In support of its case, the prosecution examined Raghunath Tatayaba Londha (P.W. 2), Panch witness Haribhau Anandrao Shinde (P.W. 1), who attested the panchnama of the scene of offence. Ex. 14, Dr. Gajanan Madhav Chakule (P.W. 3), who carried out the post-mortem examination on Babu's dead body and Vishnu Dnyanu Vaze (P.W. 4) the Investigating Officer.
7. In his statement, recorded under section 313 of Cri.C.P., the respondent denied that he was driving his truck in great speed and in rash or negligent manner. He denied that the deceased came under the front wheel of his truck. According to in the deceased came into contact with the front mud-guard of the truck and was injured. This is what he stated about what actually happened:
'I was driving truck from Satara to Koregaon side. A truck from opposite direction came. My truck was in slow speed as there was turn ahead of me. The cattle's were also coming there. Behind that there was Babu Hari Jadhav. Babu Hari Jadhav was running to the right side of the road and then again to the left side of the road. The bumper of the truck dashed against him. He fell on the ground.'
8. The learned trial Magistrate rejected the prosecution evidence and held that in view of the situation at the scene of offence, the appellant could not have driven the truck in great speed. He also held that the deceased Babu dashed against the truck an it was his negligence that caused the accident because he ran helter-skelter on the road. On the basis of these findings, the learned trial Magistrate acquitted the respondent and this order of acquittal is being challenged in this appeal. As I will presently demonstrate, there is absolutely no substance in this appeal.
9. Firstly, there is absolutely no evidence on record to show that the respondent was driving his truck in great speed. Attention of Raghunath (P.W. 8), the solitary eye-witness, examined on behalf of the prosecution, was admittedly attracted after Babu shouted, obviously after the impact. He was proceeding ahead towards Koregoan side by the northern side of the road and the truck came from Satara side, i.e. from his backside. He could not have, therefore, seen as to how the truck was moving. It is also in evidence that at the distance of about 15 to 20 feet from the place of the accident, another truck came from the opposite direction and passed the truck which the respondent was driving before the impact. It is also in evidence that near about the place of accident, there was a small turn towards the south while there is slope on the northern side. There are pits on both sides of the road and on the northern side of the road there is a brook known as Karanj Odha. There is also a small tube type bridge. In view of this position of the road and also in view of the fact that the respondent's truck or had just passed a truck coming from the opposite direction. It is inconceivable that the respondent would be driving his truck in great speed.
10. From the post-mortem notes, it is clear that the right front side of Babu's body came into contact with the truck. This could not have happened if Babu was proceeding ahead by the southern side of the road and the truck dashed against him from the backside. It could have happened only in the circumstances stated by the respondent in his statement. Admittedly, the deceased was following his cattle, so also his companion Raghunath and both of them were walking behind their cattle by two sides of the road. Possibly, therefore, as stated by the respondent, the deceased must have ran helter-skelter after his cattle and in that process he was hit by the truck or he dashed against it. Finding of tyre marks upto a distance of 34 feet, clearly shows that the respondent must have made and effort to avoid the impact. It is true that after the impact the truck was slightly facing towards south, but that does not necessarily mean that the truck turned towards the south because the respondent had no control over it. Respondent must have turned it to the south slightly, perhaps in order to avoid the impact. Therefore, it is clear to me that the learned Magistrate has taken correct view of the matter and has properly appreciated the evidence. There is absolutely no scope for interference with the order of acquittal passed by the learned trial Magistrate.
10-A. The appeal, is therefore, dismissed. Order of acquittal passed in favour of the respondent is maintained. His bail bond stands cancelled.