NAVANITI PRASAD SINGH, J.:–The sole-appellant has preferred this appeal against the judgment of conviction dated 29.04.1991 and order of sentence dated 30.04.1991 passed by the learned 1stAdditional Sessions Judge, Vaishali at Hajipur in Sessions Trial No.401 of 1990, whereby the sole-appellant, who was a driver of a public carrier truck bearing registration no.BR-1H-0263, has been held guilty of offence punishable under Section-302 of the Indian Penal Code (hereinafter in short as ‘IPC’).

2. When the appeal was taken up for hearing Mr. Bishnu Kant Dubey, learned counsel whose name appears stated that the appeal was filed from the office of Late Mr. Ganesh Prasad Singh, Senior Advocate and at that time he was associated with him. He stated that enquiries from the office of Late Mr. Ganesh Prasad Singh disclosed that the appellant had taken back the file and all the papers way back in 1992 itself. However, on our request, he agreed to assist us on basis of the paper book as available.

3. We have heard Mr. Bishnu Kant Dubey, learned counsel for the appellant and Mr. Ajay Mishra, learned Additional Public Prosecutor for the State. For the reasons to be given hereunder we are convinced that the conviction of the appellant under Section-302 IPC is not warranted though we would uphold his conviction under Section-304-A IPC. The charge as framed under Section-302 IPC would stand altered accordingly as it does not cause any prejudice to the appellant.

4. The prosecution case is based upon the fardbeyan of one Israfil Mian recorded at State Dispensary, Goroul, District Vaishali by Ramdeo Yadav (P.W.6) who was Assistant Sub-Inspector of Police of Goroul Police Station. The fardbeyan was recorded at about 6 am on 12.06.1990 alleging that the informant was the khalasi of the said public carrier truck which was driven by Jagdish Sharma, the appellant. They were carrying a consignment of wheat from Narkatiaganj to Danapur Flour Mill. When the truck reached near village Goria, Goroul on the early hours of the morning of 12.06.1990, the driver, feeling exhausted and sleepy, stopped the truck on the road and asked the informant to go to sleep as well for sometime. In the meanwhile 2 to 3 other trucks also came and stopped there. After sometime, the informant realized that the driver had started the truck and drove on his legs and escaped leaving him injured there. On his cries for help people came and carried him to the State Dispensary at Goroul. Upon this statement being recorded, a formal F.I.R was registered against the driver. On the next day, when the informant was being taken to Nalanda Medical College & Hospital, Patna for treatment, he died. The police, in course of investigation, interrogated the owner of the truck, Krishna Kumar alias Dewan Das (P.W.1), the uncle of the informant, Safiur Rahman (P.W.5) and several others and submitted charge-sheet under Section-302 IPC. Upon charges being framed and the appellant having denied his guilt, he was tried and convicted and sentenced accordingly. Hence, this appeal.

5. Learned counsel for the appellant submits firstly that there is no cogent evidence as against him much less to show that he was the driver of the said truck at that point of time when the incident took place. He secondly submits that even if the prosecution story is accepted, it is at best an accident where both the driver and the khalasi went to sleep and, without realizing this, the driver accidentally drove over the khalasi and then panicked and ran. It would be a case at best under Section-304 A IPC. On the other hand, learned Additional Public Prosecutor submits that this is clearly a case punishable under Section-302 IPC. In the fardbeyan itself the informant alleges that because of differences the driver intentionally did so. We have to reconcile the two stands based upon the facts.

6. In order to establish the charge the prosecution has examined 8 witnesses. Let it be noted that P.W.2-Deep Narain Singh, P.W.3-Raj Kumar S

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