JUDGMENT V. G. Oak, J. - This is an appeal against an acquittal. Kulwant Singh respondent was prosecuted by the police under Sec. 304, I. P. C. on the following allegations. 2. One day the respondent was driving motor truck No. U.P.S. 1782 on Saharanpur Muzaffarnagar road, the motor vehicle was being driven at a high speed. It came near a culvert over a canal distributory. One boy Krishna Kumar aged about six years was in the middle of the road. The driver of the truck did not give any horn. Nor was the truck slowed down. Krishna Kumar came under the wheels of the truck, and died immediately. The respondent did not stop his truck, but kept on driving. Krishna Kumar's uncle Rati Ram lodged a report about the incident at the police station. He was put up for identification before a Magistrate. Kulwant Singh was identified by a number of persons as the driver of the truck, which passed over Krishna Kumar. Kulwant Singh was therefore prosecuted under Sec. 304, I. P. C. for having caused Krishna Kumar's death. 3. The accused pleaded not guilty. He denied that he was driving truck No. U.P.S. 1782 at the material time. The learned Temporary Sessions Judge, Muzaffarnagar, who tried the case, was not satisfied about the identity of the driver. Kulwant Singh was therefore acquitted. Hence this appeal by the State. 4. There is good evidence to prove that Krishna Kumar was crushed under the motor truck at about 10-30 A.M. on 13-4-1956. Rati Ram lodged the first information report Ext. Ka. 6 the same day at noon. The offender was described as "driver of truck No. U.S.P. 1782, name and residence not known." 5. According to the postmortem report, Krishna Kumar had seven injuries. Several ribs were fractured. Death was due to shock and haemorrhage resulting from these injuries. Probable age of the boy was six years. The fact that Krishna Kumar was crushed under a motor truck was not disputed on behalf of the respondent. The question is whether it was the respondent, who was driving the motor truck at the material time. Neither party produced evidence about the ownership of the motor truck U. P. S. 1782. It has not been shown that, the owner of the truck had employed the respondent as driver for that truck. 6. The occurrence is of 13-4-1956. The question is whether it was the respondent, who was driving the motor truck at the material time. Neither party produced evidence about the ownership of the motor truck U. P. S. 1782. It has not been shown that, the owner of the truck had employed the respondent as driver for that truck. 6. The occurrence is of 13-4-1956. Next day (14-4-1956) the accused appeared before a Magistrate, and presented the application Ext. K-3. In this application Ext. K-3 it was stated that the accused was surrendering as ordered. He applied for bail. We have seen that the offender was not named in the report Ext. K-6, dated 13-4-1956. It is not clear from the record how Kulwant Singh gathered that, he was wanted by the authorities in connection with a case under Sec. 304A, 1. P. C. At the foot of the application Ext. K-3 there was an undertaking given by the accused. The undertaking was in these terms: "The accused undertakes to keep himself in court till the day of identification, if any, and would not take up the objection that he was shown to witness during the period of bail." This application was signed by the accused. 7. The prosecution examined five persons as eye-witnesses of the occurrence. The first eye-witness is Rati Ram (P. W. 1). He is Krishna Kumar's uncle. It was Rati Ram, who lodged the report Ext. K-6 Rati Ram is a clerk of Sri Asa Ram Mukhtar practising at Muzaffarnagar. Rati Ram's brother Raja Ram is also a clerk of a certain pleader. 8. The second eye-witness is Ghasita Singh (P.W. 2). The occurrence is of village Rohna Khurd. Ghasita Singh is also a resident of Village Rohna Khurd. He denied that Rati Ram and Rajaram showed the accused to him. 9. The third eye-witness is Pirthi Singh (P. W. 4). He also belongs to Rohna Khurd. He said that he saw the face of the driver only when he took out his head. 10. The fourth eye-witness is Kadam. (P.W. 5) . He too belongs to Rohna Khurd. He said that he has got a field near the culvert in question. 11. The last eye witness is Ramji Lal (P. W. 6). He also belongs to Rohna Khurd. He said that his field is adjacent to the culvert. All these men appear to be independent witnesses of the locality. (P.W. 5) . He too belongs to Rohna Khurd. He said that he has got a field near the culvert in question. 11. The last eye witness is Ramji Lal (P. W. 6). He also belongs to Rohna Khurd. He said that his field is adjacent to the culvert. All these men appear to be independent witnesses of the locality. Names of Ghasita Singh. Pirthi, Kadam and Ramji Lal were mentioned in the report Ext. K-6 lodged by Rati Ram. 12. Hukam Chand (P.W.7) stated that he saw the accused driving a motor truck. The learned Sessions Judge did not place reliance upon Hukam Chand's statement. It is not therefore necessary to discuss Hukam Chand's statement further. 13. Identification proceedings were held by Shri Jhaldayal, Magistrate (P.W. 3). Ext. K-5 is the memorandum of the identification parade. Rati Ram, Pirthi Singh, Ghasita Singh, Kadam Singh and Ramji Lal all identified Kulwant Singh accused. There was no mistake in the identification proceeding. The identification proceeding was held on 28-6-1956. That was two and a half months after the incident, in which the boy was killed. It appears that, Shri Jhaldayal had fixed some other dates for the identification parade. The first date was the 18th of May. The second date was the 15th or 16th of June. Sri Jhaldayal stated that the identification proceeding could not be conducted on the 18th of May, as witnesses did not turn up. No identification parade could be held on the 15th or 16th of June, as persons similar to the accused were not available. The identification parade was ultimately held on 28-6-1956. Mr. S. N. Misra appearing for the respondent urged that, the witnesses had an opportunity to see the accused on the previous dates. Rati Ram stated that he went to court and jail for identification of the accused two or three times. Ghasita Singh (P.W. 2) said that he went to Muzaffarnagar for identification twice. Ramji Lal (P.W. 6) stated that he went to Muzaffarnagar for identification only once. Ramji Lal does not know how many times his thumb-impressions were taken by the police for going for identification. It is possible that some of these witnesses went to Muzaffarnagar on one or two days before 28-6-1956. But there is no definite evidence that, these witnesses actually saw the accused between 13-4-1956 and 28-6-1956. 14. Five witnesses were examined in defence. It is possible that some of these witnesses went to Muzaffarnagar on one or two days before 28-6-1956. But there is no definite evidence that, these witnesses actually saw the accused between 13-4-1956 and 28-6-1956. 14. Five witnesses were examined in defence. The main point raised in defence was that Rati Ram witness knew the accused from before. Sri Nanda (D.W. 2) is an advocate practising at Muzaffarnagar. He deposed that his seat in the court compound adjoins the seat of Ram Rati, who is a clerk of Shri Asa Ram Mukhtar. Sri Nanda further stated that he was Kulwant Singh's counsel in a case under Sec. 353, I.P.C. Kulwant Singh accused must have visited Sri Nanda's seat a number of times in connection with that case. It is therefore possible that, Rati Ram witness had seen Kulwant Singh respondent before the date of the identification parade. We need not therefore attach much importance to Kulwant Singh's identification by Rati Ram. 15. But that objection does not apply to the other four witnesses, Ghasita Singh, Pirthi Singh, Kadam and Ramji Lal. When the accused was questioned by the Court about the statements of prosecution witnesses against him, the accused replied: "The witnesses are deposing due to Rati Ram. Rati Ram is deposing under some misunderstanding." The accused did not say that Rati Ram had enmity with him. There was no suggestion that Ghasita Singh and other witnesses were giving false evidence on account of personal reasons. 16. When the accused appeared before Shri Jhaldayal for the identification parade, the accused said that he knows Rati Ram witness. The accused did not state before Shri Jhaldayal that, other witnesses had seen the accused before 28-6-1956. The accused appears to be a resident of Muzaffarnagar city. In the ordinary course, residents of village Rohna Khurd were not likely to have seen the accused. 17. Mr. S. N. Misra contended that witnesses had no opportunity to see the face of the driver. In the report (Ext. K-6) it was not mentioned that Rati Ram and other witnesses saw the face of the driver. Witnesses stated before the court that, they saw the driver's face, when he took out his head. It is to be remembered that, the accused is said to have been driving the motor vehicle. A driver has to look ahead for the purpose of driving. Witnesses stated before the court that, they saw the driver's face, when he took out his head. It is to be remembered that, the accused is said to have been driving the motor vehicle. A driver has to look ahead for the purpose of driving. So, when the accused took out his head, he could not have looked behind for more than a few seconds. Mr. S. N. Misra urged that, it was not possible to identify the driver's face in that short interval. We do not agree. The occurrence took place in broad day-light. Witnesses were at a short distance from the boy, who was crushed under the motor truck. After the incident attention of witnesses was likely to be concentrated on the driver of the motor truck. It was therefore possible for these witnesses to identify the driver's face, even though he took out his head for a few seconds only. 18. The learned Sessions Judge relied upon a decision of a learned single Judge of this Court reported in Ganga Singh v. The State, A.I.R. 1956 Allahabad 122 In that case the learned Judge made the following observations: "It was open to the Magistrate to accelerate the proceedings of identification, it was further open to him to postpone grant of bail and to take up the application for bail after the proceedings of identification had been conducted. But simply because an accused person gives an undertaking that he will not raise the plea that the witnesses had the occasion to see him before the identification proceedings are conducted, it is not open to any Magistrate to grant bail to the accused. An undertaking of that nature never acts as an estoppel and what the Magistrate in such a case have to consider is whether prudence requires that bail should be granted at that stage. If bail is granted, the risk of the accused persons being seen by the witnesses before the identification proceedings are held cannot be eliminated. And if that risk is there, the identification proceedings are reduced to an absolute farce." 19. In Ganga Singh's case the learned single Judge pointed out that, it was undesirable to enlarge an accused on bail before an identification parade is over. We agree with the learned Judge that, generally, it is not desirable to enlarge an accused person on bail before an identification parade is over. In Ganga Singh's case the learned single Judge pointed out that, it was undesirable to enlarge an accused on bail before an identification parade is over. We agree with the learned Judge that, generally, it is not desirable to enlarge an accused person on bail before an identification parade is over. But it is not always easy to refuse bail. In Ganga Singh's case the offence was under Sec. 379, I.P.C. That offence was non-bailable. So bail could be refused. It will be shown presently that, the present case falls under Sec. 304A, I.P.C. An offence under Sec. 304A, I.P.C. is bailable. So the Court had to grant bail, although there was necessity of an identification parade. 20. We are unable to agree with the observations of the learned single Judge in Ganga Singh's easel that', if the accused person is enlarged on bail, the identification proceedings are reduced to an absolute farce. We are of the opinion that, the value to be attached to an identification parade depends upon circumstances of each case. The main considerations before the court are whether the identification parade was conducted in a fair manner, and whether witnesses in fact saw the accused between the commission of the offence and the identification parade. Now, in the present case, the accused appeared before a Magistrate on 14-4-1956, and applied for bail. Bail was granted. The accused was actually released from custody within two or three days. There is no evidence to show that Ghasita Singh and other prosecution witnesses were at Muzaffarnagar between 14th and 17th of April, 1956. From the mere fact that the accused was on bail for over two months we cannot infer that, Ghasita Singh and other witnesses must have seen the accused between 13-4-1956 and 28-6-1956. The identification parade could not be ignored, simply because the accused was on bail. 21. When an accused person is on bail and he is to be put up for identification, the responsibility for keeping himself away from prosecution witnesses lies mainly upon him. The responsibility of the accused is all the greater in a case, where he gives an undertaking as in Ext. Kha-4 of the present case. In such cases the prosecution cannot do much for keeping the accused away from prosecution witnesses. 22. We are aware that we are dealing with an appeal against an acquittal. The responsibility of the accused is all the greater in a case, where he gives an undertaking as in Ext. Kha-4 of the present case. In such cases the prosecution cannot do much for keeping the accused away from prosecution witnesses. 22. We are aware that we are dealing with an appeal against an acquittal. This is however, not a case, where the trial Court has considered that prosecution witnesses are unreliable. The learned Sessions Judge observed in his judgment: "Because the accused was on bail, therefore, the risk of the accused person having been seen by P.W. 2, P.Ws. 4 to 6 cannot be eliminated. Under these circumstances in spite of the fact that all the precaution had been taken by P.W. 3 Sri B. B. Jhaldayal the identification proceedings were reduced to an absolute farce and no reliance can be placed on such evidence." In other words the learned Sessions Judge thought that, he was bound to reject the identification proceedings on the ground that, the accused was on bail before the identification parade. As already explained, this view is erroneous. So interference with the order of acquittal will be justified. Evidence of identification proceedings must not be rejected on the sole ground that the accused person was on bail. 23. Five persons identified Kulwant Singh respondent as the driver of the motor truck. The learned Sessions Judge pointed out that there is no evidence to prove that Rati Ram showed the accused to the other prosecution witnesses. We therefore accept the evidence of the four witnesses, Ghasita Singh, Pirthi Singh, Kadain Singh and Ramji Lal on the question of the identity of the motor driver. It has been fully proved that, the motor truck was being driven by Kulwant Singh accused. Kulwant Singh must be held responsible for Krishna Kumar's death. 24. The accused was charged under Sec.. 304, I.P.C. But we do not think that the-evidence in this case discloses an offence under Sec. 304, I.P.C. There is no suggestion of enmity between the accused and the deceased. There is no definite evidence to prove that, the accused deliberately took his truck over the boy. The offence does not amount to culpable homicide. 25. According to Rati Ram (P.W. 1), then accused was driving his truck at a very 552 great speed. He did not blow horn. There is no definite evidence to prove that, the accused deliberately took his truck over the boy. The offence does not amount to culpable homicide. 25. According to Rati Ram (P.W. 1), then accused was driving his truck at a very 552 great speed. He did not blow horn. Nor did he stop the truck on seeing children playing. Krishna Kumar was in the middle of the road. He was a boy of six years. Motor drivers have to be very careful in driving, when children are playing on the road. The accused kept on driving his motor truck at a high speed, although the boy was in the middle of the road. That is how the truck passed over the boy, and he was killed. Krishna Kumar's death was due to the rash and negligent act of Kulwant Singh accused. The accused is guilty under Sec. 304A, I. P. C. for causing Krishna Kumar's death by a rash and negligent act. 26. It is to be noted that the accused was charged under Sec. 304, I. P. C. and not under Sec. 304-A, I. P. C. The question therefore arises whether the respondent can be convicted in appeal under Sec. 304A, I. P. C. Mr. S. N. Misra suggested that a retrial may be ordered. We do not see any necessity for a retrial. Parties produced evidence before the court on the question whether the accused was responsible for the boy's death by taking the motor truck over the boy. The accused was examined at length both before the Magistrate and before the Sessions court. It was definitely put to the accused that, he crushed Krishna Kumar under the wheels of truck No. U.P.S. 1782. The accused therefore fully knew the case he had to meet. He was not prejudiced due to the fact that, the court did not frame a charge under Sec. 304-A, I. P. C. He can be convicted in appeal under Sec. 304-A, I.P.C. This course is permissible under Secs. 236 and 237, Cr. P. C. 27. The accused was driving the motor truck at a high speed. When he looked behind, he must have gathered that the motor truck had passed over a boy. Yet the accused did not stop the motor truck. He kept on driving the motor truck. The accused showed callousness. 236 and 237, Cr. P. C. 27. The accused was driving the motor truck at a high speed. When he looked behind, he must have gathered that the motor truck had passed over a boy. Yet the accused did not stop the motor truck. He kept on driving the motor truck. The accused showed callousness. This is therefore a fit case for awarding the maximum sentence of imprisonment permissible under Sec. 304A, I.P.C. 28. The appeal is allowed. We convict Kulwant Singh accused respondent under Sec. 304-A, I.P.C., and sentence him to rigorous imprisonment for two years. He must surrender to bail and serve out his sentence.