JUDGMENT

S.B. Sinha, J. —

1. Leave granted.

2. Appellant was the driver of a bus bearing registration No. AP-10-Z-5260. He was driving the said bus on Bangalore-Hindupur road. On 10.1.1999, at about 2:00 p.m. when the bus was passing through a village commonly known as Kamalapura, it dashed against a child by name Shantha, as a result whereof she died. Shantha was about 7 years old at that time. A criminal prosecution under Sections 279 and 304A of the Indian Penal Code was initiated against him. He was found guilty of the said offences. He was sentenced to one year’s simple imprisonment and to pay a fine of Rs. 1,000/- for commission of the offence punishable under Section 304A and simple imprisonment for one month and to pay a fine of Rs.500/- for the offence punishable under Section 279 of the Indian Penal Code. The appeal preferred thereagainst by him was dismissed. The High Court, however, by reason of the impugned judgment modified the sentence directing :

“The order of sentence passed against the revision petitioner for the offence punishable under Section 304-A IPC is modified. He shall undergo simple imprisonment for six months and to pay a fine of Rs. 5000/-. In default of payment of fine amount, he shall undergo simple imprisonment for one month. Out of the fine amount of Rs.5000/- if deposited by the revision petitioner-accused, a sum of Rs.4000/- shall be paid to P.W. 6 Gowramma and remaining Rs.1000/- shall be credited to the State exchequer.”

3. A limited notice was issued by this Court by an order dated 25.2.2008 only on the question of sentence.

4. Mr. Kulkarni, learned counsel appearing on behalf of the appellant, submits that keeping in view the facts and circumstances of the case, this Court may also go into the merit of the matter and pass a judgment of acquittal in favour of the appellant. Learned counsel contends that the very fact that in the First Information Report, it was alleged that the deceased was standing on the left side of the road and the dead body was found on the right side thereof is indicative of the fact that she all of a sudden ran along the road resulting in the said accident. It was urged that apart from the mahazar, the evidence was brought on record to show that the appellant was driving the said bus rashly and negligently and, in any event, the question of rash and negligent driving on the part of the appellant does not arise as the speed of the bus was about 20 kilometers per hour. The doctrine of res ipsa loquitur, the learned counsel urges whereupon reliance has been placed by the courts below, cannot have any application in a criminal case.

5. Ms. Anitha Shenoy, learned counsel appearing on behalf of the respondent, on the other hand, submitted that for the purpose of finding out the guilt on the part of the appellant, the entire circumstances must be construed as a whole which are :

i) The evidence of the eye-witnesses;

ii) No mechanical failure in the vehicle was noticed;

iii) No case of error of judgment has been made out; and

iv) Appellant has not offered any explanation at all as to how the accident took place.

6. Both the trial judge, the appellate court as also the High Court considered the matter in details. The learned trial judge categorically held that the bus was being driven at a high speed. It further took into consideration that no cross-examination was effected on the said question, stating :

“7. In this case the PW 1 one Sri. Chowdappa is the complainant. He has sworn to the facts that on the date of incident about 8-10 months back earlier to the date of his evidence in this case, the said witness deposed to the effect that on that day he was very near at a distance of about 25 feet from the place of accident and by that time the bus driven by the accused person from Bangalore to Hindupur direction dashed against the child and as a result of which the child sustained grievous injury to head and other parts of the body and as a result the child died at the spot