( 1 ) THE respondent was the accused in c. C. No. 2297/83 on the file of the metropolitan Magistrate, II Court, Bangalore. He was tried for offences punishable under Section 279 and 304-A IPC on the allegation that on 23-5-1983 at about 12 noon he drove drilling rig bearing No. M. E. W. 5039 out of the compound of vasavi Dharmashala from south to north and in that course, the hind portion of the mast of the rig dashed against the western compound wall of house No. 27 and due to that the wall collapsed and fell on Jayantilal and Sandeep, aged about 10 years and 4 years respectively who were playing by the side of that compound wall and due to that both the boys died. ( 2 ) IN fact, the records show that the accused pleaded guilty when the said accusation was put to him. But, the learned Magistrate has noted in the order- sheet dated 26-6-84 that the accused pleaded not guilty. On that basis, the prosecution was called upon to adduce evidence. P. Ws. 1 to 13 were examined and Exs. P. 1 to P. 8 were produced on behalf of the prosecution. No evidence was adduced on behalf of the accused. The accused admitted that he was driving and that he was taking out the drilling rig out of the compound of Vasavi dharmashala. He also admitted that the hind portion of the mast of the rig dashed against the compound wall and the compound wall fell. He has pleaded ignorance about the boys dying being caught in the debris. According to him, the accident was not due to his rashness or negligence in driving the rig. ( 3 ) THE learned Magistrate by a curious process of reasoning held that the accident was not due to the rashness or negligence of the accused in driving the rig and acquitted him of the said offences. Hence, this appeal by the State after obtaining leave. ( 4 ) THE learned High Court Government pleader took us through the evidence on record and urged that the fact that the hind portion of the mast of the rig dashed against the wall shows that the accused was rash and negligent in driving the rig and, therefore, the learned magistrate erred in acquitting the accused. ( 5 ) MR. ( 5 ) MR. Pooviah, learned counsel for the respondent-accused, urged that there is no evidence to show that the accused was rash in driving the rig and the inci- dent in question is a pure accident and the acquittal is proper. ( 6 ) ACCORDING to the prosecution, the accused while taking out rig the out of the compound of Vasavi Dharmashala, suddenly turned it towards right and due to that the hind portion of the mast of the rig dashed against the compound wall which fell on the boys killing them on the spot. ( 7 ) THE following facts are no longer in dispute before us : 1) that the accused was driving the rig at the time of the accident and was taking it out of the compound of Vasavi dharmashala ; 2) that the hind portion of the mast of the rig dashed against the compound wall and knocked it down when it was being taken out of the compound by the accused ; and 3) that the compound wall fell on jayantilal and Sandeep aged about 10 years and 4 years respectively who were playing by the side of the compound wall and due to that they sustained injuries and died on the spot as stated by their father (P. W. 5) and p. Ws. 2 and 7. ( 8 ) THAT the accident was not due to any mechanical defect in the lorry to which the drilling rig had been fixed, as stated by the Motor Vehicles Inspector (P W. 6) who has not at all been cross- examined. But, the question is whether the prosecution has proved beyond all reasonable doubt that it is due to rash and negligent driving of the vehicle by the accused. In order to prove the same, the prosecution mainly rely on the evidence of P. Ws. 2 and 7. ( 9 ) ACCORDING to P W. 2. when he was passing on the road in front of Vasavi dharmashala he saw the borewell lorry being driven out of Vasavi Dharmashala to the road and it turned towards its right. In order to prove the same, the prosecution mainly rely on the evidence of P. Ws. 2 and 7. ( 9 ) ACCORDING to P W. 2. when he was passing on the road in front of Vasavi dharmashala he saw the borewell lorry being driven out of Vasavi Dharmashala to the road and it turned towards its right. He has further stated that there was projecting rod to the said lorry which s'ruck the compound wall ; that due to that the compound wall fell down ; that then he went near the fallen wall and noticed somebody inside and he called out for help ; that 4 or 5 persons turned up ; that about 15 people collected and lifted the said wall and found two bodies of the children. In cross-examination, it is elicited from him that half portion of the body of the lorry had come on the road; that the said compound wall was about 10' high; that the top portion of the wall was hit by the projection of the lorry and that the upper portion of the wall fell down. Thus, it is clear that there is nothing elicited in his cross-examination which would cast doubt on his testimony. He is not shown to be either interested in the deceased or ill-disposed towards the accused. Hence, we see no valid reason to disbelieve his evidence. ( 10 ) P. W. 7 in whose Department, the accused was working as a driver, has stated that he had gone in that lorry for his routine work of drilling at Vasavi dharmashala along with Joseph, Yesu and arsmith; that as the work did not yield, they wanted to return; that to drill they had taken vehicle bearing No. M. E W. 5039 which was installed with the drilling machine; that they asked the accused to take out the lorry from that spot; that while taking out the lorry, the mast of the machine struck the compound wall; that due to that the compound wall fell down; that then they got out two children by removing the debris and that both the children had died. In cross-examination, it is elicited from him that the vehicle was not in speed and it was coming slowly to go out of the gate. In his statement under Section 313 Cr. In cross-examination, it is elicited from him that the vehicle was not in speed and it was coming slowly to go out of the gate. In his statement under Section 313 Cr. P. C. the accused has practically admitted as true the evidence of P. W. 7. ( 11 ) FROM the sketch (Ex. P. 8) it is clear that the tar-road in front of Vasavi dharmashala was 29'. 3" wide and there was footpath of 11' wide on its southern side and 8' wide on its northern side. The photograph (Ex. P. 7 (b) shows that the vehicle had turned towards right as stated by P. W. 2. The evidence of P W. 2 that half the vehicle had hardly come out of the gate and it had turned towards right has not been challenged in cross-examination. There was enough road in front for the accused to take out the vehicle safely without any portion of it touching the compound wall. Hence it is clear that the accident would not have happened if the accused had driven the lorry as a prudent driver. The fact that the hind portion of the rig fixed to the lorry has hit the compound wall speaks volumes about the negligence of the accused. Merely because p W. 7 has stated that the accused was driving it slowly it cannot be said that he was not negligent. Had he driven it with due care and caution expected at a prudent driver, there was no reason for the hind portion of the mast dashing against the compound wall and knocking it down killing two innocent children who were playing by its side. Hence, we have no hesitation in holding that the accused was negligent in driving the lorry and due to that the two boys died. Hence, we convict him under Section 304-A IPC. ( 12 ) THIS brings us to the question of sentence. Under Section 304-A IPC, the accused can be sentenced to imprisonment which may extend to two years or with fine or with both. So, the Legislature in its wisdom has given discretion to the Court to fix up the proper sentence and imprisonment is not a must merely because human life is lost. Under Section 304-A IPC, the accused can be sentenced to imprisonment which may extend to two years or with fine or with both. So, the Legislature in its wisdom has given discretion to the Court to fix up the proper sentence and imprisonment is not a must merely because human life is lost. Even in State of Karnataka v. Krishna Alias Raju (ILR 1987 Karnataka, page 1894) it is stated that if there are extenuating or mitigating circumstances, the sentence could be lesser than the one imposed in that case. In this case, the accused was aged about 26 years at the time of the accident. No previous conviction is alleged against him. We are convicting him after five years after reversing the order of the trial court. Under the circumstances, we think a sentence of rigorous imprisonment for two months and a fine of Rs. 1000. 00 would suffice. ( 13 ) IN the result, the appeal is allowed and the order of acquittal passed by the lower court is set aside. The respondent accused is convicted under section 304-A IPC and he is sentenced to undergo rigorous imprisonment for two months and to pay a fine of Rs. 1,000. 00 or in default to undergo further rigorous imprisonment for two months. The trial court is directed to issue warrant for the arrest of the respondent-accused and commit him to jail for serving out the said sentence. Appeal allowed. --- *** --- .