Jagdish Chandra, J.
(1) The petitioner Abdul Hamid Khan was convicted for offences punishable under Section 304-A/279 Indian Penal Code . both by the trial court of Shri J. M. Malik then Additional Chief Metropolitan Magistrate, New Delhi as also by the first appellate court of Shri B. B. Gupta Addl. Sessions Judge, New Delhi. The petitioner was sentenced by the learned trial court to -undergo R. 1. for one year and also to pay fine in the sum of Rs. 3,000.00 under S. 304-A Indian Penal Code and in default of payment of fine he was to undergo further R. 1. for 9 moths. On appeal Shri B. B. Gupta, Addl. Sessions Judge, reduced the sentence of imprisonment from one year to 6 months for the offence under S. 304A. Indian Penal Code . retaining the remaining part of the sentence including one month's R. 1. u/s 279 J. P. C.
(2) The prosecution alleged that the petitioner being the driver of D.T.C. Bus No. Dlp 85 on route No. 416 was driving this bus on 15-11-1979 from Khanpur Depot to Lajpat Nagar and about 12'05 P. M. on that day when he was taking a turn on the main road of Gobindpuri in the jurisdiction of Police Station Kalkaji, New Delhi towards M. Block Kalkaji Road, he was driving his bus rashly and negligently as a result of which the deceased Harvinder Singh who was a boy of about 9 years of age was hit by the left side of the bus and he fell down and started bleeding from the nose and mouth receiving injuries on other parts of his person also and after he was removed to the hospital he was declared dead. The defense taken up by the appellant in his statement under Section 313 Cr. P. C. was that he had stopped his bus at Gobindpuri bus stand where some of the passengers got down from the bus where after he started the bus and while negotiating the turn he heard shouts raised by people coming from behind whereupon he stopped the bus and found that the deceased was lying on the Kacha foot path of the left side of the bus. He also stated that he had not seen the boy standing prior to the accident and opined that it appeared that the deceased tried to board the bus fell down on the spot. He did not lead any evidence in defense.
(3) There are only two eye witnesses of the occurrence and they are Pw 1 Malak Ram and Public Witness 7 Ashok Kumar and both the courts below relying upon their testimony as to the rash and negligent driving of the bus by the appellant while turning the bus and thereby hitting the deceased as a result of which the deceased died, found the prosecution case proved and consequently convicted and sentenced the appellant as aforesaid.
(4) The learned counsel for the appellant strenously assailed and challenged the validity and correctness of the order of conviction and sentence both and urged that the orders of conviction of the courts below had resulted into miscarriage of justice.
(5) As already pointed out above there are only two eye witnesses of the occurrence and they are Malak Ram (Public Witness 1) and Ashok Kumar (Public Witness ). Out of these two eye witnesses Ashok Kumar (Public Witness 7) can be said to be really the only eye witness in fact in as much as he witnessed the occurrence from the side of the occurrence whereas the other witness Malak Ram (Public Witness 1) saw the coming of the bus from just the other side whereby his vision was obliterated from the actual side of occurrence by the body of the bus itself. Malak Ram (Public Witness 1) stated that he was standing on the opposite side and thereforee, could not see how the child was run-over by the bus. Both the witnesses, however, stated that the bus was coming at a fast speed while taking them, but the site plan Ext.PW 11/A prepared at the spot by the Investigating Officer S. 1. Dharam Pal (Public Witness II) and proved. in his testimony is a very important piece of evidence in this case to determine the guilt or otherwise of the appellant. It shows points A and B. Point 'A' is stated therein to be the place of accident whereas point 'B' denotes the place where the bus was found stopped after the accident. Point 'A' appears on the Kachi Patri which abuts the puce Road. In his cross-examination Ashok Kumar (Public Witness 7) stated that the children were 3 or 4 children. . Even the Investigating Officer S. 1. Dharam Pal (Public Witness II) stated in his cross-examination that he had shown the direction of the bus on the puce side of the road and further admitted that he had shown the bus at the puce road on the turning point where it was standing meaning thereby that the bus did not go on the Kacha patri. From this aforesaid position of the children including the deceased and the moving bus it would not be difficult to visualise that it was the deceased who came towards the bus with the intention of boarding it and in the process was struck against by the left side of the bus and consequently died in the hospital to which he was removed almost immediately whereas the bus being a Right hand drive, as usual, the appellant driver could not be in a position to see the deceased when he was struck against the left side of the bus towards its rear and the seat of -the driver being in the front. It is very significant to note that the eye-witness Ashok Kumar (Public Witness 7) nowhere stated that the bus had gone on the Kacha patri where the children including the deceased were standing. The attempt of the deceased to board this running bus can also be taken as an almost accepted fact for the reason that there if a school on the corner of the turning in question towards M-Block, Kalkaji Road as would be seen from the aforesaid side plan. Statement of Sushil Kumar, photographer (PW 10) who took photographs of the spot shows that the bus was standing in in front of the gate of the school. He also stated the bus was standing partly on the Kacha and partly on the puce side of the road. This testimony of the photographer pertains only to the position of the bus when it came to a halt after the occurrence and that place of halt is sown at point 'B' in the site plan, Ext. Public Witness 11/A which place of halt is on the other side of M-Blo.ck Kalkaji road adjoining the school and there is another Kacha patri in between the said school and the Gobindpuri main puce road. It thus means that the bus did not go to the Kacha Patri where the deceased was standing but if went on to the other kacha patri which is contiguous to the school and these two kacha parties are separated from each other by M-Block Kalkaji Road as is obvious from the site plan Ext. Public Witness II/A Had the bus, on account of its speed, entered the kacha patri where the decease was standing, the guilt of the appellant would have stood established but that is not so. Statement of Malak Ram (Public Witness 1) in his cross-examination that both the child and then the bus had gone inside the kacha path, if taken to mean that simultaneously at the time of occurrence the boy and the bus had both gone on the kacha patri on which the boy was standing, is not correct, and on the other hand this part of his statement appears to mean that after the accident the bus while entering the turning had partly gone on the other kacha patri adjoining the school, which patri is separate from the kacha patri where the deceased was standing and where the accident took place.
(6) In view of the aforesaid discussion, the conviction of the petitioner unwarranted and obviously results in miscarriage of justice and consequently accepting the revision and setting aside the conviction, the petitioner is acquitted.