JUDGMENT 1. - This is a State Appeal under section 178 (1) Cr. P. C. against the judgment of the learned Munsif Magistrate, Deedwana, dated January 21, 1976 acquitting the accused respondent of the offence under section 304 A of the Indian Penal Code. 2. In brief, the case of the prosecution is that on 23-11-69 at about 1.30 p. m, Moti PW 7 was returning from village Kusimbi, to his village Bherasar and two girls deceased Sarbati and one more were also with him. All of them were on foot and when they were on their left hand at one end of the road, the accused came from the opposite direction driving a bus No. RJI 831. The front side of the bus struck Sarbati who was run over and thereafter died as a result of the injuries. A report of the incident Ex. P2 was lodged by Moti PW 7 in the police station Ladnu district Nagaur on the same day at 2.00 p. m. the distance of the police station being one mile from the place of occurrence. The S. H. O. came on the spot and after investigation, the bus was seized and was sent for mechanical examination. Padara Singh PW 4, the Motor Transport Officer examined the bus and found that there were marks of accident in the front side mudguard, the glass of the right hand headlight was broken, foot brakes were not in perfect working order and only worked at two pedals. Post-mortem examination of the dead body of the deceased was held and many injuries were found on her person. In the opinion of the doctor contained in Ex. P6, the deceased died because of laceration of brain due to the injury to the skull. 3. A charge under section 304 A, I. P. C. was framed against the accused who pleaded not guilty to the charge and claimed to be tried. After the evidence of the prosecution was recorded, the accused was examined under section 313 Cr. P. C to explain the evidence against. The accused even denied that he was driving the vehicle. He examined two witnesses namely, Bholaram DW 1 and Hiraram DW 2. 4. After the evidence of the prosecution was recorded, the accused was examined under section 313 Cr. P. C to explain the evidence against. The accused even denied that he was driving the vehicle. He examined two witnesses namely, Bholaram DW 1 and Hiraram DW 2. 4. The trial court arrived at a conclusion that the accused was the driver of bus No. RJI 831 and deceased Sarbati aged about 12 years was run over by the bus, received injuries and died. Though the accused has denied that he was the driver of the bus at the relevant time, there is sufficient material on record that the accused was the driver and the bus was involved in the accident. Babu PW 3 has stated that it was the accused who was driving the vehicle at the time of the accident. Bholaram DW 1 who professes to be a passenger in the bus and has been produced on behalf of the accused has stated that at the time of the accident, accused Balusingh was driving the vehicle. PW 4 Padamsingh the Mechanical Inspector, examined the bus immediately after the accident and proved that there were marks of accident on the front of the bus. It can, therefore, be said on the evidence on record that not withstanding the denial of the accused it was the accused and accused alone who was driving the bus at the time of the accident and hit Sarbati, a girl aged about 12 years who died as a result of the injuries received in the accident. 5. The learned trial court has acquitted the accused-respondent on the ground that the prosecution has failed to prove that the accused respondent caused the death of Mst. Sarbati by driving the vehicle rashly or negligently. This conclusion has been arrived at by the learned trial court on the ground that the witnesses produced on behalf of the prosecution so far as the alleged excessive speed of the bus is concerned, cannot be relied upon because the bus has not been proved to have been driven at a fast speed and on the basis of the fast that it stopped at a distance of about 15 steps from the place of accident, it cannot be said that the accused was driving it rashly or negligently. It has come in the evidence of the witnesses that deceased Sarbati was coming from the opposite direction, she was at the one end of the road, the bus which the accused was driving came from the opposite direction and the front of the bus struck Sarbati who was run over, received injuries and died. It has also come in the evidence that the accused respondent did not blow any horn and the brakes were defective. It is not a case where the brakes suddenly failed or became defective as a result of some mechanical defect which could not have been avoided by the accused despite due diligence. Anybody, who is driving a vehicle with defective brakes will be deemed to be driving against of the road. Whether or not the accident was the result of rash and negligent act of the accused will depend on the facts of each case. Merely excessive speed will not make the act of the accused rash or negligent. The speed may be moderate but still the accident may be the result of rash and negligent act. It is the duty of everyman who drives a vehicle on public highway to drive it with care and caution and to avoid as far as possible, any injury to any person. Natesan, J., In re Ambalal accused petitioner (AIR 1967 Madras, 365 ) has observed that negligence in acting without the awareness that harmful or mischievous consequences will follow. Negligence, as generally understood, is conduct which falls below the standard established for the prosecution of others against unreasonable risk of harm the standard of conduct ordinarily measured by what a reasonable man of ordinary prudence would do under the circumstances. A driver, who sees an object coming from the opposite direction, not only owes a duty to slow the speed of the vehicle but also owes a duty that he should have applied brakes in such time that he is able to stop the vehicle by the time it reaches the object coming from the opposite direction. If he fails to stop the vehicle in this manner, depending on the facts and circumstances of the case, it may be a case of rashness or negligence on the part of the driver. If he fails to stop the vehicle in this manner, depending on the facts and circumstances of the case, it may be a case of rashness or negligence on the part of the driver. The condition of the road, the nature of the traffic are also circumstances to be considered in order to arrive at a conclusion as to whether the accident was the result of rash or negligent driving of the vehicle by the driver. In the instant case, though the witnesses have stated that the speed of the vehicle was excessive, but giving allowance to their illiteracy and lack of any idea about the speed, it can at least be said that deceased Sarbati, a girl aged about 12 years, was coming from the opposite direction, the driver as a matter of fact must have seen her but still he did not apply the brakes in such time that the vehicle could have been stopped and the accident could be avoided. It is the front portion of the vehicle which struck the deceased which was run over, received injuries and died on the spot. A look at the site plan Ex. P 3 would show that the bus was found, after the accident standing in some kutcha portion of the road. The bus did not stop immediately but stopped about 12 to 13 feet ahead. Therefore, on the evidence on record, it can be said that the death was the result of rash and negligent driving of the bus. The learned Magistrate, therefore, has not appreciated the evidence correctly and the finding arrived at by the learned Magistrate could not be arrived at on the evidence on record. 6. The appeal is, therefore, allowed. The judgment of the learned Magistrate acquitting the accused of the charge under section 304A, IPC, is set aside and the accused is convicted under section 304A IPC. 7. Now, the question is as to what sentence should be awarded to the accused. An offence under section 304 A IPC, is punishable with imprisonment of either description for two years or with fine or with both. The occurrence took place in the year 1969, that is, eleven years before. Under these circumstances, it will not be in the interest of justice to send the accused to jail by awarding him imprisonment. 8. As already observed above, the State appeal is accepted. The occurrence took place in the year 1969, that is, eleven years before. Under these circumstances, it will not be in the interest of justice to send the accused to jail by awarding him imprisonment. 8. As already observed above, the State appeal is accepted. While convicting accused respondent Balusingh under section 304A of the Indian Penal Code, I hereby sentence him to pay a fine of Rs. 500/-(rupees five hundred only). In default of payment of fine, he shall suffer three months' simple imprisonment. The learned advocate requests two months' time to deposit the fine. Time prayed for is allowed. In case the amount of fine is not deposited in the trial court within the time allowed the trial court shall take steps to see that the accused is arrested to undergo the imprisonment awarded in lieu of payment of fine. Sd/- Mahendra Bhushan, J.Appeal Allowed, Sentence of Fine Imposed. *******