JUDGMENT :

Hasmukh D. Suthar, J.

1. Present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the applicant herein – original accused to quash and set aside the impugned judgment and order dated 16.03.2008 passed by the learned Judicial Magistrate, First Class, Kathor, District Surat (hereinafter referred to as “learned trial Court”) in Criminal Case No.178/2007, whereby the present applicant – original accused has been convicted for the offences punishable under Sections 279 and 304(A) of the INDIAN PENAL CODE , 1860 (hereinafter referred to as “IPC”) and under Sections 177 , 184 and 134 of the MOTOR VEHICLES ACT , 1988 (hereinafter referred to as “MV Act”) and sentenced to undergo punishment as detailed hereinbelow:

The applicant also seeks quashing of the judgment dated 24.06.2010 passed by the learned 3rd Additional Sessions Judge, Surat (hereinafter referred to as “learned Appellate Court”) in Criminal Appeal No.36/2008, whereby the judgment and order conviction and sentence dated 16.03.2008 passed by the learned trial Court has been upheld and confirmed.

2. Upon issuance of Rule, learned APP Mr. L.B. Dabhi appeared for the respondent – State.

3. The succinctly stated facts of the prosecution case are as under:

3.1. One Vijaybhai Chimanbhai complaint (Exh.5) against the alleging that the accused was Tank (PW-1) has filed the present applicant – accused driving the S.T. Bus bearing registration No.GK-18-V-9289 in rash and negligent manner on 14.10.2006 at 10.30 p.m. while Anand (hereianfter referred to as “deceased”) i.e. the brother of the complainant was driving the motorcycle bearing registration No.GUL-8447 on the way from village Laskana towards Kamrej Cross Road and at that time, S.T. Bus dashed with the motorcycle and ran over the deceased and due to grievous hurt, deceased succumbed. In this regard complaint (Exh.5) came to be lodged against the present applicant – accused on 15.10.2006. After collecting the evidence, Investigating Officer filed the charge-sheet against the present applicant – accused and after considering the evidence produced on record by the prosecution, the learned trial Court has been pleased to hold the accused guilty and recorded the conviction.

4.0. Learned advocate Mr. Suraj A. Shukla for the applicant – accused has vehemently that the learned trial Court has committed an error in recording the conviction in absence of any eye-witness and the so-called eye-witness is a chance witness. He happens to be the friend of the complainant. Even it is next to impossible to believe that in the dark night, he had seen the incident as he was driving the motorcycle at the distance of more than 50 feet. Further, both the Courts below have not considered the fact that the conductor of the S.T. Bus has also turned hostile. Despite no offence is committed by the present applicant is involved, he has been involved subsequently. Even, the conductor of the S.T. Bus, who is the best witness of the incident and who has been examined by the prosecution, has not supported the prosecution case. Both the Courts below have not considered the fact that the Investigating Officer has not recorded statement of any independent witness and in absence of any allegation or the proof of rash and negligent driving, present applicant – accused is convicted merely on the basis of timing and route of the S.T. Bus. Even the so-called eye-witness is unable to say anything about the description of the S.T. Bus. Even, he does not know as to whether S.T. Bus was CNG o