The duty of drivers to be cautious near educational institutions and when children are on the roads, and the applicability of the principle of res ipsa loquitur in cases of accidents.

Kuldip Singh, J:-The acquittal of respondent for offence punishable under sections 279, 304-A IPC vide judgment dated 31.1.2002 passed in Cr. Case No.208/2 of 1996/97 has been assailed by State by way of present appeal.

2. The prosecution case, in brief, is that PW-2 Parmod Sood complainant made a statement Ex.PW-2/A and on that basis FIR No.153/95 was registered on 6.6.1995 at Police Station, Sadar Shimla. The complainant in his statement has stated that on 6.6.1995 he was sitting out side his coal company namely Best Coal Company, Swati aged 10 years, Arushi aged 5 years daughters of his nephew were sitting with him. His nephew Raman and driver Des Raj were also standing there. The two girls stood up to go to their home at Lok Tara Estate, Kaithu. When the two girls were crossing the cart road, a bus bearing registration No.HP-07-0490 came from victory tunnel side in high speed and struck against Arushi who fell down. The driver side front tyre crushed Arushi and she started profusely bleeding. He and Raman took Arushi and carried her in his car to Indira Gandhi Medical College. The accident took place due to rash and negligent driving of the driver. The police came into action. The injured was got medically examined and doctor issued MLC Ex.PW-5/A. The bus was taken into possession alongwith documents, mechanical examination of the bus was got conducted and a report to this effect was obtained, recoveries were made and statements of the witnesses were recorded. The injured later on succumbed to her injuries and postmortem report Ex.PW-5/A of Arushi was obtained. On completion of investigation, challan was presented against respondent for having committed offence punishable under Sections 279,304-A IPC. The notice of accusation was put to respondent accordingly, to which he pleaded not guilty and claimed trial. The prosecution has examined seven witnesses to prove the accusation. The statement of respondent was recorded under Section 313 Cr.P.C., he denied the prosecution case but led no evidence in defence. The learned Chief Judicial Magistrate acquitted the respondent on 31.1.2002, hence this appeal.

3. I have heard Mr. Anshul Bansal, learned Addl. Advocate General for the State and Mr. N.K. Gupta, Advocate, learned counsel for the respondent and have also gone through the record. It has been submitted on behalf of the State that learned Chief Judicial Magistrate has misconstrued, misinterpreted the evidence on record. The prosecution has led oral and documentary evidence to prove the case against the respondent. The learned Chief Judicial Magistrate has not properly appreciated the evidence on record and has erred in acquitting the respondent. The learned counsel for the respondent has supported the impugned judgment and has submitted that the learned Chief Judicial Magistrate has closely looked into the matter and thereafter took a possible view which emerges from the evidence on record. In these circumstances, no fault can be found with the acquittal of respondent recorded by learned Court below.

4. PW-1 Anil Sood is a witness of recovery of shoes of Arushi from the spot vide memo Ex.PW-1/A. PW-2 Parmod Sood complainant has proved his statement Ex.PW-2/A vide which he reported the matter to the police. He has proved his signature on inquest report Ex.PW-2/B. He received the dead body of Arushi after postmortem vide memo Ex.PW-2/C. He said that accident took place due to rash and negligent driving of the bus driver. In cross-examination he has denied that accident took place as girl was running on the road. He has supported the prosecution case. PW-3 Raman Sood has stated that he works in Best Coal Company. On 6.6.1995 at about 1.30 p.m. he was standing out side the company alongwith driver Des Raj and Parmod Sood. Arushi and Swati were also there. Both the girls came out for going to their home, a bus in high speed came from tunnel side and struck Arushi and crushed her under front tyre. He and Parmod Sood