Being an eye-witness, he deposed about his presence on duty at the concerned bus stand when at about 10 : 10 a.m., the bus driven by the petitioner, proceeded very fast and hit a person standing there.ORDER S. Ravindra Bhat, J.In this revision under Sections 397/401, Criminal Procedure Code, the petitioner challenges the concurrent findings of the Courts by which he was convicted of the offences under Sections 279/304-A, Indian Penal Code (IPC) and sentenced to undergo six months' simple imprisonment (for the offence under Section 279) and one year's simple imprisonment (for the offence under Section 304-A).The facts are that according to the prosecution on 13-9-1999 at 10 a.m., at a main 100 ft. road, the petitioner was found ' driving a bus in a rash and negligent manner.This led to an accident in which one Joginder Singh, a by-stander, in the bus stand, was struck and received fatal injuries.In support of its case, the prosecution relied upon the deposition of 12 witnesses.It was alleged that a Constable, one Niranjan (P.W. 11) removed the injured to the hospital.The bus sped away.He identified the bus number and narrated how a PCR van arrived at the spot, how he took the injured to the hospital and later identified the driver of the bus, i.e. the petitioner.This witness as well as all other prosecution witnesses were cross-examined.The trial Court, by its judgment dated 7-8-2006 convicted the petitioner and awarded the sentence impugned.Learned Counsel contended that the judgments of the Courts below are vitiated because they have believed the conjectures and surmises of the prosecution.It was contended that the strongest eye-witness P.W. 11 was a planted witness.The efforts of the defense, i.e. the petitioner to prove that he was in fact not present at the site by production of the duty roster despite an application under Section 311, Cr. P.C., were frustrated.It was contended that if this course had been adopted, the petitioner would have conclusively proved that P.W. 11 was not at the site and could not, therefore, have claimed to be an eye-witness.Learned Counsel claimed that the conduct of P.W. 11, even if the facts alleged by him were assumed to be true were unnatural to say the least as, being charged with enforcement of the law, if indeed P.W. 11 had witnessed the incident, the least expected of him was to give a chase which he admittedly did not.Learned Counsel lastly contended that, taken as a whole, the findings arrived at by the Courts below were unsupported by the evidence which nowhere showed that the petitioner drove the vehicle in a rash and negligent manner.It was submitted that the mere allegation of the bus having been driven at a fast speed did not lead to the inference that it was driven in a rash and negligent manner.The appellate Court, in its impugned judgment, inter alia, held as follows:Having heard arguments from both the sides and after perusal of the record, I do not find any infirmity or illegality in the order as learned MM has carefully scrutinized the evidence in the light of available material on record as regard the identity of the accused driving the erring vehicle.The statement of P.W. 1 Ct.Niranjan Sharma recorded at GTB Hospital, Delhi where injured was removed by him, is worth mentioning.It, inter alia, mentions that on 13-9-1999, he was present at the bus stand of 212 on his duty from 8 a.m. to 8 p.m. at about 10:10 p.m. Bus No. DEP 9770 came from the Seempauri side being driven by bus driver in a fast speed and in a rash and negligent manner and it struck the pedestrains standing at the bus stand waiting for bus and ran towards Durgapuri.In the meanwhile, PCR van baker 13 came.It passed the message through the wireless set.The MLC of the victim shows arrival of victim at 10:35 a.m. on 13-9-1999 and victim was brought by P.W. 11 Ct.Niranjan Sharma whose number is also mentioned as 1496 PS Nand Nagri.It at least goes to show that the victim was brought from the place of accident to the hospital by P.W. 11 Ct.Niranjan Singh.At this stage, it cannot be said that by not proving the duty roster of this Constable, an inference can be reached that he was not on duty at that place on the fateful day.It can be presumed that official duties were performed in normal course of nature and there is no reason as to why just to solve the case, IO will introduce a false witness.Even the statement of TI Brahm Singh P.W. 8 went unrebutted who testified that the accused was on duty in the bus No. DEP 9770 from 4:20 a.m. to 12:20 p.m. on 13-9-1999 at DTC bus route No. 205 from Seempauri to Koriya Pull.Accused was caught on the same bus route by the PCR officials.P.W. 11 was an eye-witness.During the trial, no attempt was made to impeach his version about his presence indeed he was extensively cross-examined.The effort of the petitioner to have the Roznama summoned at the appellate stage, therefore, cannot be viewed as an entirely innocent exercise.It is more in the nature of a desperate attempt to evade and deflect his role.The testimony of P.W. 11 was found to be credulous.

Sections cited: Section 304A in The Indian Penal Code, Section 279 in The Indian Penal Code