A. C. KABBIN, J. ( 1 ) THE State has preferred this appeal challenging the acquittal of the respondent in judgement dated 30. 7. 02 passed in C. C. No. 43/ 95 by the Principal Civil Judge (Sr. Dn.) and JMFC, Srirangapatna. The respondent has been acquitted for offences punishable under Sections 279, 337, 338 and 304-A of the I. P. C. ( 2 ) ON 28. 11. 94 the complainant and his 30 to 35 relatives had gone on tour to Nanjangud and K. R. Sagar travelling in a tempo. On that day, after visiting Brindavan at K. R. S, they were returning in tempo bearing No. KA. 02-8342 towards Chikkahalli village of Mandya taluk. At about 7. 15 p. m. when the said tempo was going near Mandya national Paper Mills, there was a collision between the said tempo and the KSRTC bus bearing No. KA. 09-1183 which was coming from Mysore side. The said KSRTC bus was being driven by the accused Akram Pasha (the respondent ). On account of the impact, two persons in the tempo sustained grievous injuries and later died and 12 persons in the tempo and 3 persons in the bus were injured, some of them grievously. On the complaint of one of the inmates of tempo, a case was registered and after completion of investigation, a charge sheet was placed against the accused alleging rash and negligent driving of the bus by the accused (respondent) on the wrong side of the raod. ( 3 ) THE accused pleaded not guilty and claimed to be tried. The prosecution examined 28 witnesses. PWs 1 to 11 were the passengers in the tempo and PWs 12 and 13 were the passengers in KSRTC bus. PWS 18,19,20 and 22 learnt about the accident. PWs 14,15, 16,17 and 21 are panch witnesses. The Motor Vehicle inspector was examined as PW-24 whereas PWs 23,25,26,27 and 28 are Police officers. After the case of the prosecution was closed, the accused was examined u/s 313 of the Cr. P. C to explain the circumstances arising out of the evidence. The accused denied the allegations of the prosecution witnesses. No witness was examined on behalf of the accused. After the case of the prosecution was closed, the accused was examined u/s 313 of the Cr. P. C to explain the circumstances arising out of the evidence. The accused denied the allegations of the prosecution witnesses. No witness was examined on behalf of the accused. ( 4 ) AFTER hearing the learned public prosecutor and the learned counsel for the accused/respondent, the learned Trial Judge on the basis of the contention of the accused's advocate that the driver of the tempo had not been examined, that the mahazar witnesses had turned hostile and that the evidence had not shown that the bus had come on the wrong side, came to the conclusion that the prosecution had failed to prove that the accused/respondent was driving the bus in question in a rash and negligent manner resulting in the accident and consequently acquitted the accused of all the offences. Challenging the said judgment of acquittal, the State has preferred this appeal. ( 5 ) SRI. Makbulahamed, learned HCGP argues that this is a case wherein abundant material placed by the prosecution regarding rash and negligent driving of the vehicle by the accused has been disbelieved by the court only on flimsy grounds that the driver of the tempo was not examined, that the panch witnesses have not supported and that the evidence did not show that the bus had been driven on the wrong side. He submits that not only the injured witnesses of the tempo had supported the prosecution, two passengers in the bus having clearly stated about the rash and negligent driving of the bus by the accused and the sketch and mahazar having clearly shown that the bus had been driven on the wrong side of the road and travelled even after the impact to an extent of 115 feet before it was stopped, the learned trial Judge was not right in acquitting the accused. On these grounds, the learned HCGP prays for setting aside the judgment of acquittal and convicting the respondent of the offences alleged. ( 6 ) REPLYING to this, Sri. On these grounds, the learned HCGP prays for setting aside the judgment of acquittal and convicting the respondent of the offences alleged. ( 6 ) REPLYING to this, Sri. Gangi Reddy, learned counsel for the respondent submits that so far as the evidence of the inmates of the tempo is concerned, there is admission in the evidence of PWs 4 to 7 that it was a goods tempo covered by tarpaulin and therefore none of those witnesses i. e. PWs 1 to 11 could have seen as to how the accident really happened. As regards the evidence of PWs 12 and 13 inmates of the KSRTC bus, it is submitted by him that one was only 11 years old at the time when the accident happened and both of them having claimed compensation in a motor vehicle case, they are interested witnesses. As regards the arguments of the learned HCGP regarding the place of the incident, he submits that the mahazar witnesses PWs 14 and 15 have not supported the prosecution and none of the witnesses having spoken about the bus going to the wrong side, this cannot be taken evidence of negligent driving of the vehicle by the accused. He submits that the view taken by the Trial Court being plausible, the appellate Court cannot take its independent view and the view favourable to the accused has to be taken. On these grounds, he submits that the appeal may be dismissed. ( 7 ) I have carefully considered the evidence in the light of the points raised by the learned HCGP and the learned counsel for the respondent. The evidence of PWs 1 to 8 and 11 who were the inmates of the tempo puts the blame on the KSRTC bus driver. Their evidence has not been accepted by the learned Trial Judge on the ground that the driver of the tempo had not been examined. The driver of the tempo had been summoned by the Trial Court and the order sheet shows that since he was not served, NBW was directed, but that was not executed. Therefore, non-examination of the driver of the tempo by the prosecution cannot be the reason for discarding other evidence and no adverse inference as has been drawn by the Trial Court could have been drawn in this case against the prosecution on that ground. Therefore, non-examination of the driver of the tempo by the prosecution cannot be the reason for discarding other evidence and no adverse inference as has been drawn by the Trial Court could have been drawn in this case against the prosecution on that ground. The evidence on record ought to have been properly considered by the learned Trial Judge. ( 8 ) THOUGH the admission of PWs 4 of 7 shows that they were sitting in a closed vehicle and they could not have been the way in which the accident had happened, the impact could have been seen after the accident since they got down from the vehicle and the way in which the accident happened has been noticed by them. ( 9 ) THE learned Trial Judge has overlooked the positive evidence of PWs 12 and 13 who were two of the passengers in the KSRTC bus. The fact that PW-12 was only 11 years old at the time she was examined does not make her an incompetent witness since at the age of 11 years one can understand such happenings. Her evidence fully corroborates the evidence of her mother PW-13 who says that the bus was going in high speed. Thougjh this witness is not able to know the speed of the vehicle in kilometers or mileage, such passengers can feel as to whether the vehicle is being driven at a high speed or in normal speed. ( 10 ) AS regards the mahazar, the learned Trial Judge has disbelieved the evidence of mahazar witness P W-16 only on the ground that he was not a resident of that place. The accident has taken place on k. R. S. Road and he is a villager of Chikkahalli village near that place. He has stated in his evidence that he had gone to that place on that day. Since he is from a nearby village, he can be a competent witness for the spot mahazar. The sketch of scene of offence (Ex. P29) has been proved by the evidence of the investigating officer which shows that the incident took place on the left side of the road from K. R. Sagar to Mysore i. e. from North to South. Admittedly, the KSRTC bus was coming from South to North. The sketch of scene of offence (Ex. P29) has been proved by the evidence of the investigating officer which shows that the incident took place on the left side of the road from K. R. Sagar to Mysore i. e. from North to South. Admittedly, the KSRTC bus was coming from South to North. It shows that instead of going on the left side of the road, the bus had sweared to about 36 feet to the other side i. e. wrong side and the impact had left only 5 feet to the tempo on its left side. The tempo driver was helpless when the oncoming vehicle suddenly comes on the wrong side leaving only 5 feet of the road for his vehicle to manage. Besides, as seen from the sketch, the bus had travelled to a distance of 150 feet after it had dashed to the tempo indicating its high speed. This important material has been completely overlooked by the learned Trial Judge. These postive materials substantiate the depositions of PWs 12 and 13 and this is a clear case of reckless and rash and negligent driving of the bus by the accused. ( 11 ) IN a case of collision between two vehicles, once the prosecution materials indicate highly rash and negligent act of driving by the driver of one vehicle, the burden shifts to that driver to show that he was not at fault. If he disputes the place where, according to the prosecution, collision took place or the manner in which the incident happened, he has to show at what other place and in what manner collision took place. If the accused fails to avail of such opportunity by explaining his version of the incident in his statement u/s 313 of cr. P. C. , the Court will have no option but to accept the version of the prosecution to the extent it is proved. If he takes up a specific stand, then the court on appreciation of evidence will have to find out the truth and arrive at the proper conclusion. P. C. , the Court will have no option but to accept the version of the prosecution to the extent it is proved. If he takes up a specific stand, then the court on appreciation of evidence will have to find out the truth and arrive at the proper conclusion. ( 12 ) IN the present case the evidence having clearly shown that the collision was on the extreme right of the course of travel of the bus and the the speed carried the bus further 115 feet even after the impact and the accused (respondent) having failed to put forth any other possibility to reject the prosecution case, it has to he held that the prosecution had proved beyond reasonable doubt that the accused/ respondent drove the bus so rashly or negligently as to endanger human life or the personal safety of others. ( 13 ) THE incident resulted in the death of two persons and injuries to 15 persons. In such a grave situation, the learned Trial Judge has ignored the positive materials placed by the prosecution and on flimsy ground that the driver of the tempo had not been examined and despite evidence of the prosecution to show that in its course of travel the bus had gone from the left side to the other side, he has observed that there is no evidence to the rash and negligent driving. This approach is ignoring the obvious. I, therefore, find that the learned Trial Judge was wholly wrong in acquitting the accused of the offences alleged against the accused i. e. offences u/s 279,337,338 and 304-A of the I. P. C. ( 14 ) FOR the above said reasons, the appeal is allowed and setting aside the acquittal of the respondent in judgment dated 30. 7. 02 passed by the learned Prl. Civil Judge (Sr. Dn.) and JMFC, Srirangapatna in c. C. No. 43/95, the accused is convicted of the offences under sections 279, 337,338 and 304-A of the I. P. C. List the matter to hear regarding sentence on 9. 8. 07. The respondent/accused shall be present on that day. ORDER REGARDING SENTENCE heard regarding sentence. Learned counsel for the respondent argues that the respondent has lost the job and is without any means to look after his family. The respondent is present in Court with his wife and three children. 8. 07. The respondent/accused shall be present on that day. ORDER REGARDING SENTENCE heard regarding sentence. Learned counsel for the respondent argues that the respondent has lost the job and is without any means to look after his family. The respondent is present in Court with his wife and three children. The fact that the respondent has got a family consisting of a wife and three children is not sufficient to impose lesser punishment. As rightly pointed by Sri. Makbul Ahamed, learned HCGP, the rash and negligent act of the respondent resulted in the death of two person and injuries to severals persons. Having regard to all the facts, I am of the opinion that ends of justice will be met if the respondent is sentenced to 1/4th of the maximum sentence provided for the major offence i. e. offence u/s 304-A of the I. P. C. For the above said reasons, the respondent is sentenced to undergo S. I for six months and to pay a fine of Rs. 5,000/- in default, to undergo S. I for three months for the offence u/s 304-A of the I. P. C. , and to pay a fine of Rs. 2,000/-, in default, to undergo S. I for one month for the offence u/s 338 of the I. P. C. No separate sentences are imposed for offences under sections 279 and 337 of the I. P. C. One month's time is granted to the respondent to surrender before the Trial court to undergo the sentence and to pay the fine.