( 1 ) THE State has preferred this appeal against the order of acquittal of respondent hereby by J. M. F. C. , Bhatkal in C. C. No. 74 of 1985 in respect of the charges u/s. 304-A, IPC and S. 116 of the Motor Vehicles Act.

( 2 ) THE charge against the accused-respondent was, that on 7-8-1985 at 5-45 p. m. he drove lorry bearing registration No. MYE 5506, in a rash or negligent manner on Bhatkal-Honnavar road near Bailur-Doddabalase cross Road and dashed against one Lakshmi wife of Charge Sheet Witness No. 4 and caused her death and therefore is guilty of the offence u/s. 304a, IPC and 116 of the Motor Vehicles Act. The accused pleaded not guilty and eleven witnesses were examined for the prosecution and after examination of the accused purportedly u/s. 313, Cr. P. C. the Magistrate recorded an order of acquittal. After having gone through the evidence and also the judgment of the learned Magistrate, we concur with the final order of acquittal though for reasons altogether different from the ones assigned by the learned Magistrate.

( 3 ) OUT of the eleven witnesses examined by the prosecution, P. Ws. 1, 2 and 4 are eye witnesses to the accident and P. Ws. 3, 5, 7 and 8 are the persons who are stated to have come to the spot immediately after the accident. P. W. 6 is the husband of the deceased and P. W. 9 is the A. S. I. who registered the case and P. W. 10 is the motor vehicle Inspector who examined the vehicle involved in the accident and P. W. 11 is the Dy. S. P. who has investigated and filed the charge sheet. It may be noticed that though the eye witnesses to the accident speak about the driver of the vehicle involved in the accident, none of them stated anything about accused being the driver of the vehicle involved in the accident at the relevant time. No other witness has given any material by virtue of which it could be said that accused was driving the vehicle in question at the time of the accident. The learned Addl. State Public Prosecutor could not dispute this aspect of the matter though, he tried to contend that the name of the accused is found as the driver of the vehicle, in the report of the Motor Vehicles Inspector, marked as Ex. P4. The name of the accused is mentioned in it as 'driver of the vehicle' can be made out and the mere mention of his name therein cannot be used as substantive evidence to hold that accused was driving the vehicle at the time of the accident. None of the prosecution witnesses has identified the accused as the person who was driving the vehicle involved in the accident at that time. However, he urged that in the course of his examination u/s. 313, Cr. P. C. the accused has admitted that he was driving the vehicle in question and he has come forward with a certain explanation as to how the accident happened and therefore the lacuna in the evidence of the prosecution witness in this regard has been overcome by this admission of the accused in the course of his examination u/s. 313, Cr. P. C. (for short 'the Code' ).

( 4 ) THEREFORE, it has to be seen in the first instance whether the learned Magistrate was right in examining the accused u/s. 313 of the Code at all, under the circumstances, and whether the Court could act upon that portion of the statement of the accused made in reply to the questions put to him u/s. 313 of the Code. We may usefully extract S. 313 of the Code which reads as hereunder: "313. (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court- (A) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: provided that in a summons case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examin