Somnath Iyer, J.- This is an appeal by the State Government from an order of acquittal in a prosecution concerning a charge of rash and negligent driving punishable under section 304-A of the Penal Code. The accused who was charged with that offence was the driver of a lorry which was proceeding on a road known as the Old Madras Road in Bangalore towards Krishnarajapuram, and, which at a point on that road opposite to a place which is referred to in the evidence as the Union Bakery, collided against a boy Basavaraju who was eight years of age, and killed him. The accusation was that the collision happened immediately after the accused overtook a stage carriage which had stopped at the bus-stop, opposite to the Union Bakery in order to discharge its passengers and that the accused was driving his truck at an immoderately high speed. The Magistrate before whom the accused was prosecuted, had no doubt that the boy was killed in consequence of the truck driven by the accused knocking him down at that place. But he thought that there was no rash or negligent driving on the part of the accused, and, that Basavaraju had invited his death when he suddenly darted from one end of the road to the other end across the bus and fell underneath it. Four witnesses professed to have seen the incident and they are P.Ws. 3, 4, 7and 8. The prosecution called another witness P.W. 6 to give evidence about it but he did not support the prosecution and was in consequence treated as a hostile witness. He was permitted to be cross-examined by the Prosecuting Inspector and he contradicted his previous statements. P.Ws. 3, 4, 7 and 8 supported the prosecution case in its entirety. Amongst them, P.W. 3 gave evidence that he saw the incident from the northern foot-path where he was standing. P.W. 4 stated that he too saw the incident when he was standing there talking to P.W. 3. P.W. 7 was one of the passengers in the stage carriage which had stopped near the bus-stop in the vicinity of the Union Bakery and his evidence was that he saw the incident while sitting in the stage carnage. He was also the person who gave the first information Exhibit P-6, to the Sub-Inspector P.W. 12. P.W. 7 was one of the passengers in the stage carriage which had stopped near the bus-stop in the vicinity of the Union Bakery and his evidence was that he saw the incident while sitting in the stage carnage. He was also the person who gave the first information Exhibit P-6, to the Sub-Inspector P.W. 12. P.W. 8 gave evidence that he saw the incident while he was standing on the foot-path in front of the shop of P.W. 6. The uniform evidence given by all these four witnesses was that soon after the stage carriage in which P.W. 7 was travelling stopped near the bus-stop the accused who was coming behind, passed that stage carriage at an excessive speed and knocked down Basavaraju who was crossing the road from one end to the other. Their evidence was also to the effect that the accused stopped his truck at a great distance from the place where the boy was knocked down. According to P. W. 3 the speed with which the accused drove his truck was, between 30 and 35 miles an hour. P.W. 4 estimated it at 35 miles an hour. P.W. 7 did not profess to be able to estimate the speed, but he was certain in his mind that it was travelling fast. P.W. 8 similarly stated that speed of the truck was high. The witnesses gave their estimate of the distance after travelling which, the truck was stopped. According to P.W. 3, it was fifty to sixty yards from the place of the collision. P.Ws. 4, 7 and 8 stated that it stopped fifty or sixty yards away from that place. But there is the accurate evidence given on this matter by the Sub-Inspector P.W. 12 who stated that the truck was stopped at a distance of 170 feet from the place of the collision. It is also in his evidence that the road was 33 feet in width at the place of the accident. The Magistrate did not think that P.Ws. 3, 4 and 7 were not witnesses of truth, and he thought that the evidence of P.W. 8 was liable to be discarded on the ground that his evidence in regard to the direction in which Basavaraju crossed the road was at variance with the evidence given by the other witnesses on that matter. But Mr. 3, 4 and 7 were not witnesses of truth, and he thought that the evidence of P.W. 8 was liable to be discarded on the ground that his evidence in regard to the direction in which Basavaraju crossed the road was at variance with the evidence given by the other witnesses on that matter. But Mr. Bhimasenachari Ashrit, the learned Government Pleader asked us to say that the evidence of P.W. 8 was as trustworthy as the evidence of P.Ws. 3, 4 and 7. Mr.Habibulla Khan, the learned Advocate for the accused has, however, contended before us that although it may be true that P.Ws. 3, 4, 7 and 8 were present at the time when the collision occurred, they could not have witnessed the exact manner in which it happened, and that it was not possible for them to give any evidence that there was any rashness or negligence on the part of the accused. He has also supported the conclusion reached by the Magistrate that in any view of the matter what caused the death of Basavaraju was his own negligence in darting rights in front of the truck quite unexpectedly from one end of the road to the other. Mr. Khan has also made the submission that we should not believe the evidence of P.W. 7 that his information to the Sub-Inspector P.W. 12 in the Ulsoor Police Station which was a short distance away from the scene of occurrence was the first information. In regard to the evidence of the four witnesses on whose testimony the prosecution depends and whose evidence, according to Mr. Ashrit should commend itself to us, the first submission made by Mr. Khan was that there was a serious discrepancy between the evidence given by P.Ws. 3 and 4 on the one hand and that given by P.Ws. 7 and 8 on the other in regard to material points. He pointed out to us that whereas P.Ws. 3 and 4 gave evidence that Basavaraju crossed the road from the northern side of the road to the south of it, P.Ws. 7 and 8 stated that he crossed it from the other direction. It was also pointed out to us that whereas P.W. 4 stated in his cross-examination that Basavaraju, when he crossed the road, ran across it P.W. 8 stated that he did not. 7 and 8 stated that he crossed it from the other direction. It was also pointed out to us that whereas P.W. 4 stated in his cross-examination that Basavaraju, when he crossed the road, ran across it P.W. 8 stated that he did not. It was also brought to our notice that P.W. 7 in his cross-examination changed the version which he gave in his examination-in-chief and stated that he could not state from which direction the boy crossed the road. Our attention was also asked to the discrepancy between the evidence given by the witnesses some of whom stated that the truck ran over the right thigh of Basavaraju whereas others stated that it ran on his left thigh. It was also said that since P.W. 4 was a servant in the employment of Basavaraju’s father he was not an independent witness. One thing which is clear beyond doubt is that Basavaraju was proceeding on the road from one end of the road to the other when he was knocked down by the truck driven by the accused. In his examination under section 342 of the Code of Criminal Procedure the accused stated that he was not even aware that he was so knocked down. He denied that he drove his truck fast, and, he stated that he did not know whether the truck driven by him hit the boy or not. In answer to the fourth question put by the Magistrate, he said that he did not see any person crossing the road when he was driving the truck. But from the evidence given by P.W. 1 who was an Assistant Surgeon attached to the Bowring Hospital at that time and who conducted the post-mortem examination on the dead body of Basavaraju, it is clear that Basavaraju was killed in consequence of the collision between him and a moving motor vehicle. He found a lacerated wound 4“X ½” in the region of groin, but the more serious injury he observed was an injury consisting of multiple fractures of the skull involving the left frontal and left parietal bones and a fracture of the occipital bone. His opinion was that those injuries could be caused if a truck dashed against the boy and that the boy must have been hit on the right side and that he must have fallen on his left. His opinion was that those injuries could be caused if a truck dashed against the boy and that the boy must have been hit on the right side and that he must have fallen on his left. On the question whether as stated by P.Ws. 3, 4, 7 and 8 the accused drove his truck at an excessive speed, the finding of the Magistrate is not intelligible. He was disposed to take the view that even if it could be said that the truck was being driven at a speed ranging between 30 and 35 miles an hour, it could not be said that that speed was excessive on a big road particularly when there was no traffic on it P.W. 3 did say that although generally there is always heavy traffic on the Old Madras Road, there was no such heavy traffic at the time of the accident. It is obvious that in judging rashness or negligence, the speed with which a motor vehicle is driven has relevance only in conjunction with other relevant factors. While a motorist might, without inviting the reproach that he is rash or negligent, drive his motor vehicle at even fifty miles an hour when it is safe for him to do so it may be both rash and negligent for him to drive it at even fifteen miles an hour on a road where even that speed would be excessive in the circumstances. We do not concur in the view taken by the Magistrate that on a road in Bangalore like the Old Madras Road where, according to the evidence of P.W. 7 there is generally heavy traffic and which is used by stage carriages, motorists, pedestrians cyclists and also by those quaint and awkward transport vehicles known as jutkas drawn by semi starved diminutive ponies which, sometimes display unpredictable behaviour, it is safe for a person to drive his vehicle at a speed rangingbetween thirty and thirty-five miles an hour. That speed is manifestly excessive for a heavy vehicle like a truck which the accused drove, even if it be that when Basavaraju was killed the traffic congestion was subnormal. There is also the further complexity that when the truck collided against Basavaraju, a good portion of the width of the road was occupied by the stage carriage at the place where it has been parked for unloading its passengers. There is also the further complexity that when the truck collided against Basavaraju, a good portion of the width of the road was occupied by the stage carriage at the place where it has been parked for unloading its passengers. There was in addition, beyond that bus-stop where it had been so parked, a cross road referred to as the Kaliamma temple street. It is in evidence that Basavaraju was living in a house in that street. He must have crossed the road at that point either because he was returning to his house as it appears from the evidence of P.W. 8 or because he was going to some place from his house if what was observed by P.Ws. 3 and 4 could be regarded as accurate. Now it is well settled that the question whether a motorist drove his vehicle in a rash and negligent manner is one which has to be answered on the facts and circumstances of each case. While in one case the fact that the motor vehicle was driven at a high speed may not constitute rashness or negligence, there could be such rashness and negligence in another where his speed is even lower. But it is a sound and well-known rule that he who drives a mechanically propelled transport vehicle or for that matter, any other transport vehicle, is, under a duty to exercise that vigilance and care which is expected of him so as to eliminate, to the extent possible, danger and peril to others who have a similar right to use the high-way. It is equally obvious that as rightly contended by Mr. Habibulla Khan, we cannot find either rashness or negligence unless we find that the accused has displayed such apathetic disregard for the safety of others, as could justify the inference that there was both the element of recklessness and indifference in the consequences of what he was doing. It is by the application of these principles that we should proceed in this appeal to decide whether, as contended by Mr. Ashrit, the Magistrate’s finding that there was no rashness or negligence is so unreasonable as to demand interference in an appeal from an order of acquittal. It is by the application of these principles that we should proceed in this appeal to decide whether, as contended by Mr. Ashrit, the Magistrate’s finding that there was no rashness or negligence is so unreasonable as to demand interference in an appeal from an order of acquittal. We should in pronouncing upon that matter not overlook the principles which should guide us in the decision of an appeal from an order of acquittal which strengthens the presumption of the innocence of the accused. We should also pay adequate attention to the fact that the Magistrate formed his own conclusions upon the evidence before him and that it should be our duty to pay due regard to that assessment which he made of the evidence. In regard to oral evidence given by P.Ws. 3, 4 and 7 it should be recalled that the Magistrate did not feel persuaded to think that P.Ws. 3, 4 and 7 did not speak the truth. From his judgment, we gather the impression that he believed their evidence in its entirety, and, that what impelled his conclusion that there was no rashness or negligence was the fact that P.W. 4 stated that Basavaraju ran across the road when the lorry knocked him down. It seems to us that the Magistrate was right in believing these three witnesses. We are also of the view that there was no sufficient reason for the Magistrate to discard the evidence of P.W. 8 on the slender ground that in regard to the direction from which Basavaraju ran, there was some variation between his evidence and that given by the others. Indeed the evidence of P.W. 8 was consistent with the evidence of P.W. 7. P.Ws. 3 and 4 were the two witnesses who thought that Basavaraju crossed the road from the northern end of the road to the south, while P.W. 7, in his examination-in-chief and P.W. 8 stated that the crossing was from the other direction. Indeed the evidence of P.W. 8 was consistent with the evidence of P.W. 7. P.Ws. 3 and 4 were the two witnesses who thought that Basavaraju crossed the road from the northern end of the road to the south, while P.W. 7, in his examination-in-chief and P.W. 8 stated that the crossing was from the other direction. It is obvious that in a case like this where there was a stage carriage which had been parked and which had occupied a good portion of the width of the road and the accused drove his truck at a speed varying between thirty and thirty-five miles an hour and there was a collision which killed the boy, it was not easy for the witnesses to get an accurate idea as to the direction in which Basavaraju was proceeding when he crossed the road. It seems to us that perhaps P.Ws. 3 and 4 were right in thinking that he was crossing the road from the northern end to the southern end. Their evidence to that effect receives corroboration from the evidence of the Assistant Surgeon P.W. 1, who stated that Basavaraju must have been hit on the right side and fallen on his left side which means that Basavaraju was proceeding from the north to the south. The reason why P.W. 7 could not observe the exact direction was that he was sitting in the stage carriage when the accident happened. In fact, in his cross-examination he explained that he could not be very sure about the direction. P.W. 8 must have, in consequence of the sudden development committed some kind of a mistake in observing the exact direction. So we feel disposed to say that the evidence of these four witnesses is not liable to be discarded on the ground suggested by Mr. Habibulla Khan; nor do we find it possible to say that P.W. 4 was not an independent witness merely on the ground that he was an. employee under the father of Basavaraju. Likewise, the question as to whether the truck ran over the right thigh of Basavaraju or on the left thigh of Basavaraju was a matter of detail in regard to which it could not have been possible for the witnesses to gather an accurate impression. In denouncing the testimony of P.W. 7 Mr. employee under the father of Basavaraju. Likewise, the question as to whether the truck ran over the right thigh of Basavaraju or on the left thigh of Basavaraju was a matter of detail in regard to which it could not have been possible for the witnesses to gather an accurate impression. In denouncing the testimony of P.W. 7 Mr. Habibulla Khan addressed before us the argument that he was responsible for the fabrication of a false first information which was marked Exhibit P-6. That was an argument addressed before us although the Magistrate did not find it possible to say so. It seems to us that this suggestion is much too extravagant to merit acceptance. P.W. 7 appears to be a thoroughly independent witness with sufficiently high status. He was an academician who had retired from the post of a lecturer in the St. Joseph’s College and was returning to his house after having attended to some work which he had undertaken. He performed the noble public duty of proceeding to the Police Station in Ulsoor to make a report of the accident and imparted information about it when another person who accompanied him to the Police Station exhibited strange reluctance to do so. We see no reason to think that there is anything suspicious about the information lodged by P.W. 7 in that way. P.W. 12, the Sub-Inspector, in attendance at the Police Station recorded the information given by P.W. 7. Mr. Khan, however, pointed out to as that P.W. 7’s evidence was that when he reached the Police Station, the accused was found by him seated there. He asked us to say that if the accused had reached the Police Station earlier in that way, he would have reported the incident to P.W. 12 and that that report was suppressed by the prosecution. P.W. 12 denied that the accused had made any such report and we see no reason to disbelieve him. It is, in the circumstances utterly improbable that the accused would have made any report when it is seen that even in his statement under section 342 of the Code of Criminal Procedure he stated that he did not know whether his truck had knocked down any person. We must, therefore, believe the evidence of the four witnesses P.Ws. 3, 4, 7 and 8. We must, therefore, believe the evidence of the four witnesses P.Ws. 3, 4, 7 and 8. But if that evidence isbelieved, what first emerges is that the accused drove his truck at an excessive speed. Although as Mr. Khan urged P.Ws. 3 and 4 who estimated the speed at thirty or thirty-five miles an hour, are laymen who could not make an accurate assessment of the speed, it is clear as can be seen from the evidence of P.Ws. 7 and 8 that the speed was higher than it should have been. Even the evidence of P.Ws. 3 and 4 must be understood in that way. The incapacity to judge the speed with precision does not produce the incapacity to judge whether the speed was high or was all right. We think that the accused was driving his truck at a speed in the neighbourhood of about thirty miles an hour which, on the road on which the accident happened which was inside the limits of Bangalore, was far too excessive. We should say so for another reason. At the point where the collision happened, One part of the road bad already been occupied by the stage carriage which had been parked. Beyond that stage carriage in the direction in which the truck was proceeding, there was a cross road towards the north. It is elementary that when a motorist overtakes another motorist or passes it when it is stationary, he must satisfy himself that it is safe to do so. He should when proceeding further in that way, keep a proper look out in all directions to the extent it is possible. He should keep that look out for other motorists and other persons who have as much right to use the high-way as himself, particularly in a place like Bangalore where there are very few pedestrian crossings, and, a pedestrian often thinks it safer to face the dangers on the high-way in preference to those which he encounters on the impossible and corrugated foot-path dreaded for its unknown perls which are as many as the knowns. To eliminate danger to those others, it is his duty to suitably decelerate the speed of his vehicle to be able to completely arrest its motion when necessary. To eliminate danger to those others, it is his duty to suitably decelerate the speed of his vehicle to be able to completely arrest its motion when necessary. So it was rash and obviously negligent on the part of the accused to drive his truck without retarding its speed at the point where the stage carriage had been parked and where there was a cross road beyond. Basavaraju, as already explained, must have crossed the road from the northern end to the south. We believe the evidence of P.Ws. 3 and 4 that he did so. So, Basavaraju could not have been able to see the truck which was driven by the accused and the accused did nothing to stop it when he found that Basavaraju emerged from behind the stationary vehicle. This inability on the part of the accused to control his vehicle is obviously attributable to the unreasonable speed with which he drove it. That he was driving so is perfectly manifest from the fact that the accused was able to stop his truck only at a distance of 170 feet from the place where Basavaraju was run over. The rashness and negligence which we should deduce, stands reinforced by the fact that even according to his own statement under section 342 of the Code of Criminal Procedure the accused did not even known that he had knocked down Basavaraju. He never stated that there was any application of brakes by him or that he took the most ordinary precaution such as the hooting of the horn and the like when he proposed to go beyond the stationary stage carriage. The fact that he was not even aware of having knocked down Basavaraju is what demonstrates the extreme recklessness and indifference with which the truck was driven by him. We are not prepared to accede to the contention that on account of the diminutive size of Basavaraju it was not possible for the accused to observe him when he crossed the road. It is true that Basavaraju was a little child of eight years of age, but we cannot persuade ourselves to think that when a boy who is eight years of age is crossing the road, anyone driving a transport vehicle could miss him if he keeps that look out which is expected of him. But Mr. It is true that Basavaraju was a little child of eight years of age, but we cannot persuade ourselves to think that when a boy who is eight years of age is crossing the road, anyone driving a transport vehicle could miss him if he keeps that look out which is expected of him. But Mr. Khan maintained the argument that even so, the Magistrate was right in concluding that since the collision was attributable to the fact that Basavaraju ran from one end of the road to the other, we should not find negligence on the part of the accused. Among the four witnesses who gave evidence about the incident, P.W. 4 was the only witness who stated that Basavaraju ran across the road. But the evidence of P.W. 4 cannot be understood as indicating that Basavaraju suddenly darted from one end of the road and got caught underneath the wheels of the truck. On the contrary, what was elicited in his cross-examination makes it clear that Basavaraju exercised all the caution which was expected of a pedestrian who wishes to cross a road on which there are no pedestrian crossings. What he did, according to the evidence of P.W. 4 was to cross the road only when the stage carriage stopped at the bus-stop. No one can blame Basavaraju for taking that opportunity to reach the other side of the road. If Basavaraju ran, as P.W. 4 has stated, that act of running on his part was a further act of prudence on his part in order to occupy as little time as possible for traversing the width of the road. It could not be said that in doing so, Basavaraju himself was guilty of negligence, although we could have found that he was guilty of such negligence if Basavaraju had thoughtlessly darted from some concealed part of the road right in front of the truck if it had been driven with all the caution and care with which it should have been driven by the accused. A pedestrian has as much right to use the high-way as a motorist and when a pedestrian has to cross a high-way, as many times he has to, and there are no pedestrian-crossings, as it happens to be the case in Bangalore except in very few places, the duty imposed upon a motorist to drive his automobile in such a way as not to involve the pedestrian in undue peril or danger, becomes greater when on a narrow road-which are quite a few in Bangalore-a good portion of the width of the road is occupied by a stationary stage carriage and there is always the possibility of some pedestrian emerging from behind that stationary stage carriage. We might have felt persuaded to exonerate the accused if we had found it possible to say that the accused had exercised that care which was expected of him, and, that Basavaraju suddenly darted into the road confronting the accused with a situation in which he could not find it possible to do anything. But we do not find it possible to say so. What makes it difficult for the accused to absolve himself of the charge that he was rash and negligent was that on a narrow and busy road inside Bangalore, the drove his truck at a speed ranging between thirty and thirty-five miles an hour. We feel surprised that the Magistrate thought that on any road in Bangalore, a truck could safely be driven at that speed. The Magistrate seems to have thought that since there was no heavy traffic on the road when Basavaraju was killed, there was nothing wrong on the part of the accused to drive the truck with that speed. What the Magistrate overlooked was that when accused drove his truck in that way, he did not take the precautions demanded by the complication created by the stationary stage carriage and the cross-road beyond it. We are of the opinion that no truck could be driven at that high speed on any road inside a town or a city where there is always the possibility of an unexpected development coming into being. Dissenting from the view taken by the Magistrate, we reach the conclusion that the accused drove his vehicle in a rash and negligent manner and is guilty of an offence punishable under section 304-A of the Penal Code. Dissenting from the view taken by the Magistrate, we reach the conclusion that the accused drove his vehicle in a rash and negligent manner and is guilty of an offence punishable under section 304-A of the Penal Code. We allow this appeal, set aside the order of acquittal made by the Magistrate and convict him of that offence. In regard to the sentence, it seems to us that it is not at this distance of time necessary to sentence the accused to any imprisonment. The ends of justice will be sufficiently met if we sentence him to pay a fine of Rs. 250 and in default to simple imprisonment for one month. We make an order accordingly. S.V.S. ----- Ordered accordingly.