IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.572 of 2008 SHIVNATH PRASAD, SON OF SHRI RATAN RAI, RESIDENT OF VILLAGE BAMNAULI, P.S. MAINATAND, DISTRICT WEST CHAMPARAN. Versus THE STATE OF BIHAR . For the petitioner : Mr. Vivek Kumar Singh, advocate. For the State : Nityanand Tiwary, APP. ----------- 19 26.03.2011. Heard learned Amicus Curiae for the petitioner and Sri Nityanand Tiwary for the State also perused the lower court records. 2. Petitioner is the owner cum driver of vehicle bearing registration no. BHM 9181. He was prosecuted and convicted for the offence under Sections 279, 304(A) of the Penal Code with direction to undergo simple imprisonment for six months and one year respectively. The sentence however, was directed to run concurrently. His conviction has also been affirmed in appeal. By filing the present criminal revision petitioner has assailed the order passed by the trial/appellate court. 3. Prosecution case in brief is that Deep Hazra father of the informant Jhojha Hazra while returning from canal side after having his bath suffered accident on 26.12.1987 at about 10 a.m. near village Tilangahi Bahuarwa. It is said that he 2 suffered accident as he was hit by moving BHM 9181 driven by the petitioner in rash and negligent manner. The injured was removed to Mainatand hospital where he died during treatment. After the death of Deep Hazra First Information Report was lodged by his son Jhojha Hazra on the same day at about 1.p.m. During investigation five witnesses, namely, Kailas Raut, Ramdhani Paswan, Ambika Paswan, Satyadeo Raut and Shambhu Hazra were examined. Relying on the statement of the aforesaid five witnesses charge sheet was submitted against the petitioner for the offence under Sections 279 and 304(A) of the Penal Code. During the trial aforesaid five persons were examined as witness but Kailash Raut, Ramdhani Paswan and Shambhu Hazra resiled from their statement and did not support the prosecution case and were declared hostile. Ambika Paswan and Satyadeo Raut supported the occurrence and relying on their evidence trial court convicted and sentenced the petitioner for the aforesaid offences. 4. During the hearing of this petition counsel for the petitioner submitted that there is nothing on record to suggest that Deep Hazra suffered accident on account of rash and negligent 3 driving of the vehicle by the petitioner as after his death on 26.12.1987 no post mortem was conducted on the person of the deceased to confirm that the death was on account of injuries suffered in the accident. Learned counsel further submitted that out of five prosecution witnesses examined during trial, three have become hostile. In such circumstances, trial/appellate court erred in placing reliance on the evidence of Ambika Paswan and Satyadeo Raut who were not even named as a witness of the occurrence in the First Information Report. The informant Jhojha Hazra having not been examined to support the prosecution case coupled with the fact that the doctor who attended on the injured while he was being treated at Mainatand hospital, it is very unsafe to rely on the statement of Ambika Paswan and Satyadeo Raut to convict the petitioner. It is further submitted that even Ambika Paswan and Satyadeo Raut have not stated in their deposition that it was the petitioner who was driving BHM 9181 at the time the same hit Deep Hazra, the deceased. 5. Counsel for the State, on the other hand, supported the impugned orders and submitted that the two courts below having relied upon the 4 deposition of Ambika Paswan and Satyadeo Raut to convict and maintain the conviction of the petitioner this Court should be slow in interfering with the same. He, however candidly admitted that from the lower court records, it is quite evident that no autopsy was conducted on the person of the deceased. He also confirmed the fact that Ambika Paswan and Satyadeo Raut are not named as a witness in the First Information Report. 6. Having considered the rival submissions made by the counsel for the parties and having found that no post mortem was conducted on the person of the deceased Deep Hazra to confirm the fact that he died on account of road accident as also the fact that Ambika Paswan and Satyadeo Raut are not named as witness in the fardbeyan, coupled with the fact that they have not stated in their deposition before the trial/appellate court that at the time of accident petitioner was driving the tracker BHM 9181, I am of the view that the courts below have erred in convicting the petitioner for the offence under Sections-279, 304(A) of the Penal Code. Conviction of the petitioner having been recorded without there being any material to justify the same is set aside and revision application is, 5 accordingly, allowed. 7. Let this order be communicated to the Secretary, Patna High Court Legal Services Committee so as to enable the Committee to pay one hearing fee to the learned amicus curiae, which is assessed at Rs.2500/-. Rajesh/ (V.N.Sinha, J.)