Desai, J.
1. The respondent was the accused in C.C.No. 3802/ 1982 on the file of the II Additional J.M.F.C., Gulbarga, and he will be hereinafter referred to as the accused. He was tried for an offence punishable under Section 304A I.P.C. on the allegation that on 27-9-1981, at about 1-00 p.m., on Shahapur-Gulbarga road, near Kellur bus-stand, he drove car bearing registration No. MYP 6546, in a rash and negligent manner and dashed against the deceased Subhadrabai, who was proceeding along with her brother, P.W.4., on the eastern portion of the road, and caused her death.
2. As the accused denied the commission of the offence, P.Ws. 1 to 13 were examined and Exhibits P-1 to 6 and M.Os.1 to 4 were produced. Exhibit D-1 was not marked in the cross-examination of Nabisab, P.W.7. No defence evidence was adduced by the accused. The defence of the accused was one of total denial. Analysing the evidence, the Learned Magistrate held that the accident was not due to the rash and negligent driving of the vehicle by the accused and acquitted him. Hence, this appeal by the State, after obtaining leave.
3. The learned High Court Government Pleader took us through the evidence on record and urged that the learned Magistrate has failed to note that there were brake marks to a distance of about 105 feet till the spot of the accident and that the accident had taken place on the offside of the road, with reference to the direction in which the car was proceeding then. The learned Magistrate erred in holding that the accused was not driving the vehicle at high speed and as the vehicle was stopped at a distance of about 6 to 8 feet, ignoring that the accused could not bring the vehicle to a halt even after applying the brakes at a distance of 105 feet from the spot. On the other hand, Mr. Appa Rao, learned Counsel for the respondent, urged that the appreciation of evidence by the trial Court cannot be said to be perverse and so this Court, in this appeal against acquittal, may not interfere with his findings.
4. In SALIM ZIA v. STATE OF U.P., : 1979CriLJ323 while considering the powers of the Appellate Court, in an appeal against acquittal, the Supreme Court was pleased to observe thus :
'(1) The High Court, in an appeal against an order of acquittal, has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence, the order of acquittal should be reversed.
(2) The different phraseology used in the Judgments of the Supreme Court such as -
(a) 'substantial and compelling reasons',
(b) 'good and sufficiently cogent reasons',
(c) 'strong reasons',
are not intended to curtail or place any limitation on the undoubted power of an Appellate Court in an appeal against acquittal to review the entire evidence and to come to its own conclusion as stated above, but in doing so, it should give proper consideration to such matters as, (i) the views of the trial Judge as to the credibility of the witnesses ; (ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial ; (iii) the right of the accused to the benefit of any real and reasonable doubt ; & (iv) the slowness of an Appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.'
5. Bearing in mind the said principles, we shall proceed to consider the evidence in this case. The following facts can be said to have been satisfactorily established by the prosecution evidence:
i) that the accident took place on the Shahapur-Gulbarga road which runs from South to North near the bus-stand at Kellur ;
ii) that Car No. MYP 6546 was involved in the said accident as stated by the eye-witnesses, P.Ws.2 and 4 to 7 :
iii) that the respondent-accused was driving the said vehicle at the time of the accident, from Shahapur to Gulbarga, as stated by P.Ws.4, 5, 6 and 7 :
iv) that deceased Subhadrabai died due to the injuries sustained by her in the said accident as stated by P.Ws.2 and 4 to 7 :
v) that the accident was not due to any mechanical defect in the vehicle as stated by the Motor Vehicles Inspector, P.W. 12, who examined the vehicle after the accident and gave his report. Exhibit P-6.
But, the question is whether the said accident took place due to the rash and negligent driving of the said vehicle by the accused. To prove the said point, the prosecution rely on the direct evidence of P.Ws. 1, 2 and 4 to 7.
6. Sharanappa Gowda, P.W.1, was the Dalapathi of Kellur village then and according to him, at the time of the accident, he was sitting in the hotel drinking tea. in the bus-stand of that village and saw the accident.
7. Mohammad Ali, P.W.2. is a cooli, working at the bus-stand of Kellur and he also owns a Pan shop in that bus-stand and according to him, at the time of the accident, he was proceeding from his Pan shop towards the bus bound for Muddebihal for cooli work.
8. Shanthappa, P.W.4. is the elder brother of the deceased and he was proceeding along with her at the time of the accident on the right side of the road while proceeding towards Gulbarga and the car came from behind them and dashed against his sister.
9. According to P.W.5, he was sitting in the hotel of Shamsuddin, P.W.6, near the spot, at the time of the accident and witnessed the accident. Shamsuddin, P.W.6, is running a tea shop at Kellur bus-stand and he too witnessed the accident which took place near his hotel.
10. P.W.7 is also the owner of a hotel at Kellur bus-stand and according to him, he too witnessed the accident.
11. These P.W.s. 1, 2 and 4 to 7 are natural witnesses to the incident. They have absolutely no reason to give false evidence against the accused. All of them have stated that the accused was driving the said vehicle at high speed then.
No doubt, they have not been able to give the speed of the vehicle in terms of kilometres per hour.
12. Pancha, P.W.10, to the panchanama of the scene of offence, Exhibit P-4, has stated that there were brake marks to a distance of about 40 to 50 maters on the road. Exhibit P-4 shows that the brake marks were to a distance of about 105 feet upto the spot. Therefore, the contents of the panchanama, Exhibit P-4 corroborates the version of P.W.10. There is no reason to disbelieve the evidence of P. W. 10. No doubt, he has stated that the vehicle had been stopped at a distance of about 2 to 3 feet from the dead body of Subhadrabai. The eye-witnesses have also stated that the car was stopped at a little distance away from the dead body of Subhadrabai after the accident. But, the brake marks to a distance of about 105 feet before the impact show that the vehicle must have been driven at high speed and that the accused could not bring the vehicle to a halt even after applying the brakes to a distance of about 105 feet. The accident had taken place in a busy bus-stand in a village where there are hotels and shops on the other side of the road. Under such circumstances, the accused ought to have driven the vehicle slowly, expecting that somebody would cross the road. Merely because the vehicle was stopped at a short distance from the dead body after the impact, it cannot be said that the vehicle was driven at a slow speed, especially in view of the brake marks of 105 feet.
13. No doubt P.Ws.1, 6 and 7 have stated that the deceased was crossing the road then. But, looking to the fact that the brakes were applied to a distance of 105 feet from the spot, it appears that accused saw the deceased crossing the road from a long distance and the deceased must not have suddenly thought of crossing the road when the vehicle was very near to her.
14. The evidence of P.Ws.4, 5 and 6 shows that the deceased was on the right side of the road with reference to the person proceeding towards Gulbarga at the time of the impact (eastern side). The vehicle driven by the accused was also proceeding towards Gulbarga. Had he driven the vehicle on the proper side of the road, the accident would not have taken place. The accused had not given any explanation as to why he drove the vehicle on the off-side of the road with reference to the direction in which it was proceeding then. Moreover, the car has also gone from behind the deceased and knocked her down. These circumstances have been ignored by the learned Magistrate while appreciating the evidence of eyewitnesses. Hence, from the said circumstances, we are clearly of the view that the accused was rash and negligent in driving the vehicle at the time of the accident and it is due to that, he caused the death of the deceased Subhadrabai.
15. As the learned Magistrate has ignored these three important circumstances viz., (i) the brake marks to a distance of about 105 feet from the spot probalising the evidence of the eye-witnesses that the vehicle was driven at high speed; (ii) that the accident occurred on the off-side of the road with reference to the direction in which the car was proceeding then ; (iii) that the vehicle went from behind and knocked down the deceased, his conclusion that the accident was not due to the rash and negligent driving of the accused can not be sustained. Therefore, we have no hesitation in holding the accused guilty under Section 304A I.P.C. and we convict him accordingly.
16. This brings us to the question of sentence. The accused was about 26 years old at the time of the accident. He was the first offender. We are told by his learned Counsel that he is the only earning member of his family.
Bearing in mind the observations made by the Supreme Court in STATE OF KARNATAKA v. KRISHNA @ RAJU, ILR 1987 KAR 1894 and regard being had to the circumstances of this case, we think, a sentence of rigorous imprisonment for 3 months and to pay a fine of Rs. 500/- would suffice, especially as we are convicting him after reversing his acquittal by the trial Court.
17. In the result, appeal is allowed and the order of acquittal passed by the learned Magistrate is set aside. Respondent-accused is convicted under Section 304A I.P.C. and is sentenced to undergo rigorous imprisonment for 3 months and to pay a fine of Rs. 500/- in default, to undergo further R.I. for one month.