V.D.Tulzapurkar, J.

(1) THIS appeal by special leave is directed against the conviction under S. 304-A 1. P. C. and sentence of one years rigorous imprisonment and a fine of Rs. 1,000.00 imposed upon the appellant by the Bombay High court in Criminal Appeal No. 873 of 1970. The appellant was acquitted by the learned Presidency Magistrate, 22nd court, Andheri, Bombay but the High court reversed his acquittal.

(2) ON 19/07/1969 at about 10.00 a. m, Vasudeo Patil (Public Witness 5) a domestic servant aged about 15 years was escorting two young children of his master, the deceased girl Priti aged about 7 years and her brother Pankaj aged about 9 years, to their school. All the three were walking on the eastern foot-path of Tejpal Road at Vile Parle (a suburb of Bombay) proceeding from south to north. The appellant-accused was driving his lorry bearing No. MRS 5167 at that time on that road and was proceeding in the opposite direction (i.e. from north to south). Tejpal Road, admittedly is 29.5 ft. wide having a footpath of 6 ft. width on its eastern side. While proceeding on the footpath to the school Pankaj was walking left of Vasudeo while deceased Priti was walking left of Pankaj. She being the nearest to the carriage-way of Tejpal Road. Though initially they were walking along the footpath, Priti happened to step down from the footpath and at about the same time the lorry driven by the appellant-accused came from the opposite side and knocked her down; she was run over and killed on the spot. It appears she was hit by the front bumper and the head came under the rear left wheel of the lorry and was almost crushed with brain matter. coming out. Both Pankaj and Vasudeo started crying. The lorry driven by the appellant-accused eventually halted at a distance of about 73 ft. or so from the place where the girl lay dead-about 13 ft. from the eastern foot- path. Persons collected and at about 10.30 a.m. P.S.I. Deshmukh attached to police station Vile Parle visited the scene of occurrence and noticed the dead body of the girl as well as _the lorry driven by the appellant-accused. A Panchnama of the scene of occurrence was drawn and the dead body was taken charge of under another Panchnama and the P.S.I, filed his own F.I.R. in due course. The appellant-accused was tried for the offence punishable under S. 304-A Indian Penal Code on the allegation of his having caused the death of 7 years old Priti on the morning of 19/07/1969 by driving his lorry in a rash and negligent manner. The appellant-accused denied having knocked down the girl and could not say how the collision occurred. According to him people shouted and hence he stopped the lorry but because there was no space on the eastern side he went at some distance and parked his lorry on the western side. He disputed that he had driven the lorry at a high speed or in a rash or negligent manner. The prosecution led evidence of three material witnesses, namely, Natwarai Karansingh (Public Witness 4), a shop- keeper, having his shop on the western side of the road, Vasudeo Patil (Public Witness 5), the domestic servant and Pankaj (Public Witness 6), the brother of the deceased. The learned Presidency Magistrate felt that the evidence adduced before him was not sufficient to establish the rashness or negligence on the part of the appellant-accused and holding that it was a case of pure accident acquit- ted the appellant of the charge levelled against him. The High court in an appeal preferred by the State reversed the acquittal and convicted the appellant under S. 304-A Indian Penal Code and sentenced him as indicated above.

(3) MR. Parekh, counsel for the appellant, contended that the High Court had erred in reversing the acquittal recorded by the Presidency Magistrate in favour of the appellant-accused. He urged that in the evidence Vasudeo (Public Witness 5) and Pankaj (Public Witness 6), the only two witnesses who had seen the occurrence, had giv