THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL REVISION CASE No.388 OF 2009 ORDER: The revision is filed against the judgment in Criminal Appeal No.198 of 2008 on the file of the Metropolitan Sessions Judge, Hyderabad, where-under the conviction and sentence of the accused in Calendar Case No.887 of 2004 on the file of the VI Additional Chief Metropolitan Magistrate, Hyderabad, was confirmed. 2. According to the case of the prosecution, the accused was the driver of the RTC bus bearing No.AP 10 Z 1857. On 09.02.2003 at about 6.30 P.M., he drove the bus in a rash and negligent manner and when he reached near Artillary center, dashed against Yamaha motorcycle bearing No.AP 1 C 6161, as a result, the deceased Ravi Raj received injuries. He was taken to hospital by PW.1, who was the auto driver present there and thereafter he was taken to Apollo hospital, where he died. On the complaint of PW.1, police have registered a case and after investigation filed the charge sheet against the accused. The petitioner pleaded not guilty and after considering the evidence on record, the learned Magistrate found the accused guilty and sentenced him to undergo Rigorous Imprisonment for six months and also to pay a fine of Rs.500/-, in default of payment of fine, he shall undergo Simple Imprisonment for one month for the offence punishable under Section 304-A of the Indian Penal Code (for short, 'IPC'). Aggrieved by that, the accused preferred an appeal and the appellate Court also confirmed the same. Aggrieved by the said judgment, the present revision is filed. 3. The point that arises for consideration is whether the accused as the driver of the bus drove it rashly and negligently and caused the death of the deceased? 4. POINT: PW.1, who is the auto driver and gave the complaint, did not support the prosecution case and he was declared as hostile. His evidence goes to show that he heard some big noise, went near to the scene, noticed the RTC bus and Yamaha motorcycle and shifted the injured to the hospital. Ex.P.1 is the complaint given by him and Ex.P.2 is his statement, which was recorded by the police. He was declared as hostile. PW.3, who is Conductor of the bus, also did not support the prosecution case and was declared as hostile. PW.2 is said to be a friend of the deceased. According to him, on 09.02.2003 he along with his other friends were proceeding from Langer house to Narsingi and the deceased was following on his Yamaha motorcycle and he further stated that the deceased was proceeding on his vehicle just ahead of his vehicle and when reached near Tippukhan bridge, suddenly the RTC bus took ‘U’ turn and dashed against the motor cycle of the deceased, as a result of which, he died. According to him, the injured was taken in an auto by its driver to Sai Ram Hospital and thereafter to Apollo hospital. He claims to have gone and informed the parents and relatives of the deceased. The evidence of PW.4 is about conducting Post Mortem Examination over the dead body of the deceased and issuing Certificate Ex.P.4. The evidence of PW.5 is about the examination of the vehicle and finding that the accident was not due to any mechanical defects. The evidence of PW.6 is about the investigation done by him in this case. 5. The only evidence available in this case with regard to guilt of the accused is the evidence of PW.2. Evidently, near the scene of offence at about 6.30 P.M., it is a busy locality. The evidence of PW.2 goes to show that suddenly the accused has taken ‘U’ turn and caused the incident. According to the case of the accused, PW.2 is a planted witness and if really he was there, there is no reason as to why he did not give any complaint to the police and therefore, his claim is not believable. Further-more, according to him, his description about the nature of the incident is also not acceptable. 6. As rightly contended by the learned counsel for the appellant, the question is even if PW.2 was said to be going to Narsing whether he has got opportunity to witness the incident. In this connection his evidence in chief examination clearly goes to show that the deceased was following his scooter, thereby he was ahead of the deceased. But, in the next sentence, he stated that the deceased was proceeding on his vehicle ahead of his vehicle. Therefore, in the chief examination itself there is a contradiction as to whether the deceased was following PW.2 or as to whether he was ahead of him. Unfortunately, during the course of cross-examination, the witness was not confronted with the inconsistencies and therefore, the Court has to look into the earlier statement given by him to the police in order to know the truth. As can be seen from his statement recorded by the police under Section 161 of the Criminal Procedure Code, it was specifically stated that the deceased Raviraj also followed on his Yamaha motorcycle bearing No.AP 1C 6161 to go to Narsingi. This clearly goes to show that the deceased was behind him and consequently the possibility of witnessing the incident by him is not acceptable. If the evidence of this witness is excluded, there is no evidence to show as to how the incident was happened. 7. In view of the above circumstances, it is a clear case where a benefit of doubt has to be extended to the petitioner and the conviction and sentence imposed by the learned Magistrate and also confirmed by the Sessions Judge is liable to be set aside. 8. Accordingly, the Criminal Revision Case is allowed and the judgment of the Metropolitan Sessions Judge, Hyderabad in Criminal Appeal No.198 of 2008 is set aside. The bail bonds of the petitioner shall stand cancelled and the fine amount shall be refunded to him. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:23-12-2011 INL