JUDGMENT

Pradeep Nandrajog, J.—On 11.1.1988 at around 8.10.a.m. Master Anubhav Khanna, a student of Air Force Senior Secondary School, Subhroto Park suffered an untimely death when he was hit by a motor vehicle. The young boy was a student of Class III and was aged 8 years. Prosecution alleged that the respondent who was driving bus No. DEP-8474 under management of DTC and had caused the student when, plying on route No.773, the bus was in the road and had reached Air Force Senior Secondary School.

2. Learned Metropolitan Magistrate who conducted the trial has held that offence under Section 279 and Section 304, IPC was not established against the respondent. In so holding, learned Trial Judge has held that there are material discrepancies in the testimony of PW2, PW3 which casts a doubt whether PW2 had witnessed the accident. Further, learned Trial Judge has drawn an adverse inference against the prosecution from the fact that vide DD Entry Ex. PW9A recorded at 9.05 a.m. no particulars about bus in question were noted. Lastly, testimony of PW3 another eyewitness has been disbelieved.

3. PW2, Babu admittedly working as a chowkidar in the school stated that he was an eye-witness to the accident as he was present at the gate No. 1 of the school. That the bus was being driven very fast and that after the young boy was hit, lot of people collected at the spot. He went to inform the principal who sent two boys with him to see the injured. When he went back to the road the boy had been removed to the hospital. That he had seen the driver of the bus. That the accused was the driver of the bus. In cross-examination, he stated that the police recorded his statement but immediately thereafter stated that the police did not record his statement but noted down his name and address. He further deposed in cross-examination that the bus stopped at a distance of about 25 paces ahead of the accident and that after hitting the boy the bus ran over the body resulting in the boy getting crushed.

4. PW3, P.R. Ganpathy, a student of the school stated that 2 or 3 students of the school had informed the principal regarding the accident.

5. PW4 Karuna Sharia stated that she was standing at the bus stop and had witnessed the accident. She also stated that the bus in question crushed the child and stopped at a distance of about 10-15 paces from the place of impact. That she tried to stop cars so that the child could be taken to the hospital but no body stopped. That thereafter two students arrived from the school and stopped a car which removed the child to the hospital. She opened the bag of the child and found his name and address and went to the school and informed the office of the same. That she went to the house of the child to inform his parents. In cross-examination she stated that she saw blood oozing from the nose and mouth of the boy. She stated that she did not see any other injury.

6. The learned Trial Judge disbelieved the testimony of the two aforenoted witnesses i.e. PW2 and PW4 primarily on the ground that the body of Anubhav was not crushed and that the bus had not run over the body. Further, in view of testimony of PW3, P.R. Ganpathy, a student of the school who stated that 2 or 3 students from the school informed the principal about the accident, learned Judge held that the version of PW2 that he informed the principal was incorrect. Further, learned Trial Judge has noted that the place where PW2 was stationed i.e. gate No. 1 was not towards the side of the road on which the accident took place.

7. Ms. Neelam Grover, learned counsel for the accused urged that since accused has been acquitted, presumption of innocence in favour of the accused has got reinforced. Learned counsel urges that the conclusions arrived at by the learned trial Judge cannot be called perverse. Counsel further urges that if on the evidence brought on record, two views are possible and learned trial Judge has preferred to adopt a particular view notwithstandin