( 1 ) THE State has preferred this appeal against the acquittal dated 26-5-1993 passed by the Civil Judge and JMFC, Ramanagaram, acquitting the respondent for the offence punishable under Section 279 and 304-A, IPC, CPI-PW 3, Ramanagaram Circle, has filed the charge-sheet against this respondent (who shall be referred to herein after as 'accused), for offences punishable under Sections 279 and 304-A, IPC.

( 2 ) DECEASED-MADAIAH is the brother of CW-2 by name Shivaji. On 5-4-1992 CW-2 along with his brother had come to Mudavadi cross in order to go over to Bidadi. It was at about 7. 30 a. m. PW-1 Rajanna and PW-2 Rajgopal were also with them. At that time, the accused was driving his matador bearing No. KA 11 651 and came from Ramanagaram side in high speed driven rashly and negligently so as to endanger human life and at Mudavadi cross the driver suddenly overtook the lorry and came to the extreme right side of the road and dashed against Madaiah who was waiting for the bus. Madaiah fell down and sustained bleeding injuries. The accused stopped his vehicle at about a distance of 60 feet from the accident spot. P. Ws. 1 and 2 immediately rushed to the spot and gave water to the injured. The injured died at the spot. At about 8. 15 a. m. PW-1 went to the Bidagi Police Station and gave a complaint which was registered in Crime No. 71/92. The investigation of the spot mahazar was prepared and the vehicle involved in the accident was seized. The inquest on the dead body was also prepared and then it was sent for the post-mortem examination. The seized vehicle was subjected to the inspection by the Motor Vehicle Inspector. The CPI took-up further investigation and after the receipt of the PM report and IMV report submitted the charge-sheet after the completion of the investigation.

( 3 ) FOR the prosecution, P. Ws. 1 to 4 are examined and Exs. P1 to P5 are marked. For defence no witnesses were examined much-less any document is marked.

( 4 ) THE learned Government Pleader Mr. Parvin submitted that the observation of the learned Magistrate that the evidence of P. Ws. 1 and 2 cannot be relied upon is erroneous. According to him, there is enough material to show that they witnessed the incident which has taken place on the wrong side of the road, that too, while over- taking the lorry. It is also submitted, that the accident took place at 7. 30 a. m. and the complaint was filed at 8. 15 a. m. at Bidadi Police Station without any loss of time. The prompt complaint has not been considered properly. On the other hand, Mr. Rajagopal, learned counsel for the respondent strenuously submitted that, non-examination of the Motor Vehicle Inspector is fatal. P. Ws. 1 and 2 who claimed to be the eye-witnesses cannot be treated as eye-witnesses and relied upon the judgments in the case of Veerabhadarappa v. State of Karnataka reported in 1989 (2) Kant LJ 255 and also relied upon a judgment in Criminal Revision Petition No. 82/1997. Further relied upon a decision in the case of State of Karnataka v. Sayabanna reported in ILR 1988 Kant 1942 : (1989 Cri LJ NOC 44 ).

( 5 ) IT is in the evidence of P. W. 1 that the deceased-Madaih was coming with Shivaji and Rajagopal a little away behind him by the side of the road. He observed a lorry going towards Bangalore side. A tempo was following the said lorry from its behind. The driver of the tempo overtook the lorry by coming on his right side. In the said attempt the driver of the tempo hit against the deceased-Madaiah.

( 6 ) IT is pertinent to note that the alleged incident took place at 7. 30 a. m. The complaint was filed at 8. 15 a. m. In a span of 45 minutes, the complaint has been filed. Hence in my opinion within such small span of time, it is not possible to cook up a false case against the accused. In the cross-examination of P. W. 1, it is elicited that he came to know of the accident only when he heard the sound and shouts raised by the deceased and others. Relying upon this Mr. Rajagopal, learned

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