(1) THIS appeal by special leave is directed against the judgment of the High Court of orissa dated 1 1/4/1985 setting aside the order of acquittal passed by the Sub-Divisional Judicial Magistrate, Jeypore.

(2) ACCORDING to the prosecution case the appellant, while driving the vehicle belonging to the orissa State Road Transport Corporation caused an accident on 20/5/1979 on the road between Nowrangpur and Jeypore. As a result of the accident, Pradeep sustained injuries and ultimately succumbed to those injuries. The report of the accident was lodged at Police Station Boruguma by the conductor of the vehicle Public Witness 8. The appellant was tried for offences under Sections 279/304-A Indian Penal Code.

(3) ACCORDING to the prosecution case, the deceased along with two other children was standing near a Baniyan tree when he was hit by the vehicle in question on the kuteha side of the road. The trial court before whom 11 witnesses were examined on behalf of the prosecution and one on behalf of the appellant, recorded an order of acquittal against the appellant on 13/3/1981. The trial court disbelieved the testimony of Public Witness 1, Public Witness 2, Public Witness 3 and Public Witness 4 mainly on the ground that their evidence was in conflict with the testimony of Public Witness 8. After taking into consideration, the report of the Motor Vehicle Inspector Public Witness 9, the trial court opined that since the appellant had applied brakes from a distance of about 22 metres but the brakes did not function in respect of 3 wheels and the. vehicle was dragged towards the western side, the appellant could not be said to have been rash or negligent. The trial court further opined that had the statement of PWs 1 to 4 been correct that they were not playing on the main road but were playing on the kutcha road, there was no occasion for the appellant to apply brakes and take the vehicle on the right side of the road and, therefore, disbelieved them and acquitted the appellant.

(4) THE High court after considering the evidence, and reappreciating the same, came to the conclusion that the findings recorded by the trial court were not sustainable. That the High court, while dealing with an appeal against acquittal has the full powers to review at large the evidence on which the order of acquittal was founded and reach its independent conclusion as to whether or not the order of acquittal was justified is no longer in doubt. Of course, while dealing with such an appeal the High court is required to keep in mind the reasons given by the trial court and we find that in the inslant case the High Court was alive to that situation, in our opinion, the findings recorded by the trial court were conjectural and based on surmises and unfounded assumptions.

(5) OUR independent analysis of the evidence on record, particularly of the testimony of PWs 1 to 4 has shown that those witnesses are reliable and their testimony worthy of credence. Had the vehicle been plying on the main road, the accident would not have occurred on the right side of the road and that too on the kutcha portion of the road. The very site of accident shows that the driver of the vehicle did not lake the care which was expected of him. According to PWs 1, 2, 3 and 4 the appellant did not even blow the horn. There is nothing in the cross-examination of these witnesses from which any doubt may be cast on their veracity. Even the defence witness DW 1, admitted that while sitting in the bus he had seen the presence of the boys on the road from about one furlong. He has also not disputed that the accident took place on the right side of the kutcha road when the vehicle dashed against the deceased. The material on the record shows that the appellant did nol lake due care which was expected from him on the main road and the accident was caused, resulting in the death of Pradeep Kumar, due to the negligent driving of the appellant. The very fact t