(1.)IN the city of Jodhpur towards the West there is a highway known as Umaid hospital Road. This road is fed by traffic from the south-eastern feeder roads, namely, Chopasani Road, 5th Road Sardarpura, and Pal Road. On its northern side, traffic emerges from Siwanchi Gate. On September 5, 1965, at about 1-15 p. m. , accused Hari Singh, aged about 60 years, was driving bus No. RJQ 2694. He arrived on Umaid Hospital Road from the side of Pal. At that time Kumari Indu, a girl of about 16 years, also came on the said road on a bicycle from the side of siwanchi Gate. She suddenly collided against the said bus somewhere near point marked O in the site plan Ex. P-9. She was run over by the rear right-wheel of the bus, as a result of which she sustained fatal injuries and died instantaneously on the spot. After this accident Hari Singh stopped the bus after plying the same upto a distance of about 7 ft. First information report of this mishap was lodged that very day by the accused Hari Singh himself at the Police Station, Sardarpura, at about 1. 35 p. m. On receipt of the report Ex. P-8, a case was registered under Section 304-A I. P. C. , and investigation followed. The Police prepared a site plan Ex. P-9. Autopsy of the dead body of Kumari Indu was conducted by Dr. Har Govind, P. W. 9, Medico-Jurist, Mahatma Gandhi Hospital Jodhpur, on the date of the accident at 5. 20 p. m. Following injuries were found on her person:--
(1) Crush injury on skull, bones fractured brain flowing out, face compressed from before backward. (2) Lacerated wound 1" x 1/4" x bone deep about the left eye brow. (3) Clotted blood over lips in teeth left upper teeth fallen, maxilla left side fractured, so also mandible nasal bone fractured. (4) Abrasion 3/4" x 3/4" on the dorsum of right middle finger. (5) Irregular abrasion on the right side wall of abdomen. (6) Lacerated wound 4 1/2" X 1 1/2" muscle deep on the left glutal region near midline, stood passed. (7) Abrasion 3/4" x 1/2" on the dorsum of left foot terminal part. In the opinion of the Medico-Jurist, cause of death was crush injury on the skull and brain of Kumari Indu.
After the investigation was over, the Police put up a challan in the court of learned additional Munsiff-Magistrate No. 1, Jodhpur City. The accused pleaded not guilty to the charge under Section 304-A, I. P. C. In support of its case the prosecution examined 9 witnesses. In his examination under Section 342, Cr. P. C. , the accused admitted the unfortunate mishap, but stated that the accident did not take place because of his rashness or negligence. According to him it was Kumari indu who collided against his bus. The accused further said that Indu came towards the wrong side of the road. He also stated that the bus was not being driven with excessive speed, which was hardly to 5 to 7 miles an hour. The accused also pointed out that the brakes of the bus were in proper working order and there was no free-play therein. In the end, he said that he had made every endeavour to save Kumari Indu's life by trying to take the bus towards the extreme foot-path of the road. In his defence, he examined 3 witnesses. The trial court disbelieved the prosecution evidence and reached the conclusion that the prosecution failed to prove that Hari Singh acted rashly or negligently. It, therefore, acquitted the accused of the offence under Section 304-A I. P. C. Aggrieved against the above judgment, the present appeal has been filed on behalf of the State Government.
(2.)LEARNED Assistant Government Advocate has argued that there is cogent and convincing evidence on the record to suggest that the accused acted rashly and negligently. He has further urged that there was free travel paddle play, in more than 1/2" (which was out of measurement) and that the hand-brake was also not in working order. That shows that Hari Singh was driving the vehicle with defective brake and, therefore, he was grossly negligent in plying the bus on the high-way. Learned counsel for the respondent supported the judgment of the trial court.
(3.)IN this case the most important witnesses are P. W. 2 Ranjeet Mal and P. W. 5 mohanlal. Ranjeet Mal has stated that the bus was moving at a high speed of about 30 miles an hour. According to him, the driver did not blow the horn. He has further said that when Kumari Indu was coming from the northern side and when she turned towards the right, she gave a signal with her hand. Nevertheless the bus collided against her and the right hind wheel of the vehicle ran over her body. The trial court did not place reliance upon the testimony of this witness. It has given reasons for doing so. The witness has made inconsistent statements as to when he actually saw the accident. In the Police statement Ex. D-1 at portion marked A to B he said that he had already left the bicycle shop when he saw the accident. Before the trial court he deposed that at the time of the mishap he was standing on the bicycle shop, and was about to leave it. The witness has failed to clarify the distance between the bus and the place where the injured girl was lying. The witness is also unable to show as to which wheel of the bus ran over the bicycle of the deceased. The witness has also stated that there were no marks of the wheel on the road. This version stands negatived by the site inspection memo ex. P-9, and the statement of the S. H. O. Shaktidan P. W. 8. The witness was admittedly a distant relation of the deceased. His natural conduct demanded of him that after the mishap he ought to have taken requisite care for the victim or he ought to have endeavoured to seek prompt immediate medical aid. So much so he even did not go to the nearby Police Station to lodge a report. The trial court, which watched his demeanour, found his testimony incredible. The basis for discarding his evidence does not appear to be superfluous. Unless there exists substantial reasons, this Court feels hesitant to take contrary view in the matter.