G.B. Pattnaik, J.
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. In support of the prosecution case, eleven witnesses were examined of whom P. Ws. 1 to 4 are the eye witnesses to the occurrence. P. Ws. 5 and 7 ate the medical officers, P. W. 9 is the M. V. I., P. W. 10 is the Assistant Station Master of the Bus and P. W. 11 is the Investigating Officer. P. W. 6 is a seizure witness and P. W. 8 is the conductor of the bus. On behalf of the defence, one witness was examined. The learned Magistrate on consideration of the evidence came to the conclusion that the prosecution had failed to prove that the bus was being driven rashly or negligently by the accused and on this finding he acquitted the accused of the charges levelled against him.
4. 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.
5. The two decisions of the Supreme Court relied upon by Mrs. Padhi for the respondent lay down the powers of the appellate Court in an appeal against acquittal. In the Gujarat case (AIR 1983 S. C. 484), it was held :
'...The appellate Court while dealing with an appeal against the order of acquittal has full power to review at large the evidence on which the order of acquittal is founded and to reach a conclusion that upon such evidence the order of acquittal should be reversed. However, in exercising that power the appellate Court should give proper weight and consideration to the following matters : (1) the view of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of the appellate Court in disturbing a finding of fact arrived at by a judge, who had the advantage of seeing the witnesses, which finding would not certainly be disturbed if two reasonable conclusions can be reached on the basis of the evidence on record....'
This decision relies on the earlier decision of the Supreme Court relied upon by the counsel for the respondent, reported in A. I. R. 1974 S. C. 286. But while appraising the evidence if the appellate Court comes to the conclusion that the finding of the trial Court is wholly unreasonable or the appreciation of evidence made by the trial Court is wholly perverse, then the appellate Court should unhesitatingly interfere with the order of acquittal in the interests of justice.
6. P. W. 1 stated in his evidence that the three boys were standing under the banyan tree to the right side of the vehicle when the vehicle came in a high speed and dashed against Pradeep Kumar who was thrown to a distance and become unconsciousness. He further stated that the accused did not blew horn while driving the vehicle. He categorically asserted:
'...Had the vehicle plied on the road the accident would not have occurred, but it went to the side of Kutcha road, hence the accident took place....'
P. W. 2 was standing along with the deceased. He also stated that the vehicle driven by the accused came in a high speed without blowing the horn and dashed against Pradeep who was thrown to a distance of five feet and was severly injured. He further stated :
'Had the vehicle gone on the tar road it would not have dashed the deceased ...'
P. W. 3 who was also standing under the banyan tree to the west of the main road where the boys were standing, stated :
'...O. S. R. T. C. bus came from Nowrangpur whose number I did not remember driven by the accused in a high speed and dashed against the boy facing distance and was injured on his head and leg. Had the vehicle proceeded on the tar road no accident would have occurred. ...'
P W. 4 who was also an occurrence witness stated that the bus came in a high speed without blowing the horn driven by the accused and dashed against the boy. The boy was severely injured. He also reiterated that had the vehicle plied on the main road, it would not have dashed against the boy. Nothing has been elicited in the cross-examination of these witnesses to discredit their statements. All of them spoke in a very straight-forward manner as to how the accident took place. P. W. 5 is the Doctor who examined the deceased at Boriguma Primary Health Centre and P. W. 7 is the doctor who had conducted the autopsy. The medical opinion is to the effect that the death is on account of intracranial haemorrhage caused by the injuries to the skull and in cross-examination P. W. 7 admitted that by ore impact the injuries might have been caused. The M V, I. (P. W. 9) deposed to the effect that the rear wheel brake was functioning hut in respect of other wheels the brake was not functioning. The spot-map prepared by him is Ext-9 which undoubtedly has been prepared after the accident. The unimpeachable evidence of the four eye witnesses referred to above indicates that the bus was being driven by the accused which appeared to the naked eye to be with high speed and it did not blow any horn and further dashed against the boy who was standing on the kutcha portion and not the metal portion of the road. D. W. 1 the defence witness who was travelling in the very bus stated in his cross-examination :
'...From a furlong we focussed three children on the middle of the road, when the vehicle came near, two children escaped...'
Thus according to this witness they could able to locate the presence of the boys from about a furlong which, therefore, warranted a higher degree of care and caution on the part of the driver. The evidence of the Investigating Officer (P.W. 11) indicates that the width of the pitch road at the spot was 12ft, the width of the eastern plank is 9 ft. and the width of the western plank is 12 ft. To the west of the road adjacent to the road there is a banyan tree. The oral evidence of P. Ws. 1 to 4 unequivocally indicates that the boys were standing under the banyan tree and, therefore, their evidence that the vehicle went on the eastern portion of the road and dashed the boy and that the accident would not have occurred had the vehicle moved on the tar portion of the road, is fully corroborated by the evidence of P.W.11 as to the location and measurement of the road at the spot.
7. While judging whether a driver of a motor vehicle is guilty of rash or negligent act, no abstract standard can be laid down and the Court has to judge what is the amount of care and circumspection which a prudent and reasonable man would consider it sufficient having regard to all the circumstances of the case. A person who drives a motor vehicle should always keep it in a state of control sufficient to enable him to avoid dashing against any other vehicle or running over any pedestrian who may be on the road. The speed with which the vehicle was being driven has some relevance when taken in conjunction with other relevant facts. As the Supreme Court has stated in the case of Duli Chand v. Delhi Administration, A. I. R. 1975 Supreme Court, 1960, it is a sound rule that he who drives a mechanically propelled transport vehicle or for that matter any other transport vehicle, is under a duty to exercise that vigilance and care which is expected of him so as to eliminate, to the extent possible, danger and peril to the others who have a similar right to use the highway. Applying the aforesaid principle to the evidence on record, I am firmly of the opinion that the vehicle in question was being driven by the accused in a rash and negligent manner as a result of which it dashed against the boy standing under the banyan tree on the earthen portion of the road and the accused also exhibited grave negligence in not blowing the horn and dashing against the boy. The negligence of the accused is further aggravated since he could see the boy from a furlong's distance and yet did not take reasonable care and caution so as to avoid the accident. In my opinion, the prosecution has been able to establish beyond reasonable doubt that the accused caused the death of the boy Pradeep Kumar by driving the vehicle OSC 2568 rashly and negligently and dashing it against the boy who was standing under the banyan tree and thereby committed the offence under Section. 304A, Indian Penal Code. I would, therefore ret aside the order of acquittal passed by the learned Magistrate and convict the accused under Section 304A, Indian Penal Code, and sentence him there under to rigorous imprisonment for a term of one year. The Government Appeal accordingly allowed.