Judgment

SARKARIA, J.:- By a short order we had allowed this appeal by special leave directed against a judgment, dated March 22, 1978 of the High Court of Karnataka, and acquitted the appellant. We now give our reasons in support of that order.

2. On March 18, 1974 at about 8-30 p.m., the appellant was driving a passenger bus No. MYM-5859 on Dharampura-Hiriyur Road towards Hiriyur. When the bus reached a place from where a kacha path bifurcates for village Hariyabbe, a girl named Gundamma, aged about 4 years, ran across the road. The appellant swerved the vehicle towards the extreme right side of the road. In spite of it, the child was hit and died at the spot. A complaint was lodged by the Patel of the village, Gunde Gowda, at Hariyabbe Police Station. The Station House Officer (P.W. 7) after registering a case, reached the spot and sent the dead body of the child for post-mortem examination, and recorded the statements of witnesses, including some of the passengers in the Bus.

3. On these facts, the appellant was sent up for trial before the Judicial Magistrate, 1st Class, Chitradurga, who convicted him under Section 304A of the Indian Penal Code and sentenced him to six months simple imprisonment with a fine of Rs. 500 and in default, to one months imprisonment.

4. At the trial, the prosecution examined 11 witness. The parents of the deceased child were also examined, but they were admittedly not eye-witnesses of the occurrence. P. W. 2, a passer-by and P. W. 5, P. W. 6 and P. W. 9, who were passengers in the bus at the material time, were examined as eye-witnesses by the prosecution.

5. The substance of the story that emerges from the testimony of these eye-witnesses, taken as a whole, was that at the material time, the accused was driving the bus slowly as there was a narrow bridge 30 feet ahead. The mother (P.W. 4) came from the habitation of the village to go to the field across the road at some distance, where her husband was working. The ill-fated child was following the mother. Before crossing the road, the mother asked the child not to come after her but to return home, but, when the mother had crossed the road and descended into the deep ditch on the other side, the child crying Amman suddenly dashed across the road to join her mother. The accused in order to save the child, swerved the vehicle to the extreme right side of the road. According to the eye-witnesses, excepting one, the accused blew the horn, also. But the child was caught under the left front wheel of the vehicle and was crushed to death. It was further evident from the statement of G. Ramakrishnappa (P. W. 5) that if the appellant had taken the bus beyond the point where the child was hit, the bus would have fallen into the deep ditch, along with the passengers.

6. The Public Prosecutor, however, treated all the four eye-witnesses as hostile, and cross-examined them to impeach their credit, with the permission of the Court. The Public Prosecutor did not contradict them with their Police statements with regard to the facts that the vehicle was coming slowly; that the child came suddenly on the road and that the driver had swerved the vehicle towards the extreme right to save her, but was unable to do so. The only portion of the Police statements of the eye-witnesses, with which they were specifically confronted, was that before the Police they had stated that the accident took place due to the negligence of the accused, while at the trial, they were saying something to the contrary.

7. During his examination under Section 313 Cr. P. C., the appellant stated that he was driving the vehicle slowly, and the child came on the road from the left, all of a sudden, to cross it; that in order to avoid a collision with the child, he immediately swerved the vehicle towards the right side of the road, but he failed to save the child. Thus, the defence plea was that the accident could not be avoided in the circumstances, in spite of the care taken. The trial Court held