JUDGMENT

J .B. Goel; J. - By this criminal revision the petitioner challenges the legality and validity of his conviction u/s 304 IPC which has been upheld in Appeal by the learned Addl. Sessions Judge and also the sentence imposed. The Trial Court had convicted him for offences u/s 304A and 279 of the IPC and sentenced to R.I. of one year u/s 304A and to a fine of Rs. 1,000/- u/s 279 IPC.

2. In appeal, conviction u/s 304A has been upheld. However, the sentence has been reduced to R.I. of six months and in view of conviction u/s 304A I.P.C. the conviction and sentence under Section 279 have been set aside.

3. The petitioner was charged in that he on 20-4-1990 at about 2.35 P.M. was driving bus No. DEP 6218 in rash and negligent manner started the bus suddenly while the deceased passenger was boarding the bus who fell down and was crushed by the left rear wheel of the bus and died afterwards.

Prosecution inter alia had examined PW-1 Priya Swamy and- PW-9 Con st. Sanwar Mal as eye witnesses. The trial Court and the appellate court believed the testimony of these, witnesses.

4. Learned counsel for the petitioner has contended that material contradictions in the testimony of PW-l and PW-9 have been over-looked; the conductor was a material witness but he has not been examined to prove how the deceased had fallen from the bus, it is also not proved by any reliable evidence either that the bus in question was involved nor that the petitioner was its driver nor it is proved that the accident was due to rash or negligent driving by the petitioner or the death was as a result of his rash or negligent act; that the deceased had fallen down from the moving bus for which petitioner is not liable. In the end he contends that the petitioner should have been given the benefit of probation and in any case the petitioner has undergone imprisonment for over three months and in the circumstances he may be released on the sentence already undergone.

Whereas, learned counsel for the State has supported the conviction and sentence and has contended that the findings of two courts below are concurrent based on material on record are reasonable and justified evidence cannot be reviewed in revision and there is no illegality or infirmity requiring interference by this Court.

5. It appears that the driver of the bus had escaped his arrest and had run away from the spot after the bus and his driving licence were seized and was arrested after about two months.

6. The occurrence had taken place near the gate of Nirvachan Sadan at Ashoka Road. New Delhi. Objection has been taken that the identity of the bus and of the driver has not been established inasmuch as PW-1 has not identified the offending bus or the driver and PW-9 has deposed that the offending bus was DEP 6718.

PW-l PriyaSwamy has not identified the driver as well as the bus and PW-9 Const. Sanwar Mal has given the bus number as DEP 67.18 However. PW-6. CT. Baleshwar Dayal and PW-10 ASI Amar Singh. 10 who had reached the spot first on receipt of information of accident have deposed that the bus No. DEP-6218 was found in accidental condition near the place of occurrence the said bus was seized vide Memo Ex. PW-6/ A and the driving licence Ex. P-l of the petitioner was also seized vide Memo Ex.PW-6/B. There is no cross examination of these witnesses on this aspect. The petitioner in his Statement Ex. PW-8/ A made before the M.M. when he was produced for TIP, had refused for TIP stating that he was driving the bus at the time of the accident and then the witnesses had seen him. It is thus admitted by him that he was the driver of the offending bus DEP-6218. The statement of PW-9 was recorded after over 7 years and obviously he would not have remembered the correct number of the bus after such a long time. The Trial Court as well as the appellate Court have come to the conclusion that the offending bus was DEP-6218 and the accused was its driver. This finding is based on material on record and cann