IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Revision No.546 of 2013

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Mukesh Kumar Gupta Sao, resident of village-Mahngupur, P.S.

Makdumpur, District Jehanabad

.... .... Petitioner/s

Versus

The State of Bihar

.... .... Opposite Party

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Appearance :

For the Petitioner/s : Mr. Ashok Kumar Verma, Adv.

For the Respondent/s : Mr. Anil Kumar, A.P.P.

For Insurance: Mr. Bimlesh Kumar Jha, Adv.

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CORAM: HONOURABLE MR. JUSTICE V.N. SINHA

ORAL ORDER

5

12-06-2013

The petitioner is the owner-cum-deriver of the tractor

bearing No. BR 2B 4089. He has filed this criminal revision

assailing the judgment of the trial Court dated 12.6.2007 passed in

G.R. Case No. 204/2001, T.R No. 618/07 whereunder he has been

convicted for the offence under Sections 279/304A of the Penal

Code with direction to undergo sentence of three months simple

imprisonment under Section 279 and one year under section 304A

of the Penal Code. The two sentences, however has been directed

to run concurrently. The aforesaid judgment has also been

affirmed in appeal under judgment dated 26^th February 2013

passed in Criminal Appeal No. 57 of 2007/5 of 2011.

2. The prosecution case is that the tractor in question met

with an accident on 7.2.2001 at about 4 p.m in which Suresh

Paswan, brother of the informant, P.W.4 Yogendra Paswan was

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crushed to death. It is stated that the petitioner was negligent in

driving the tractor which was engaged in transportation of bricks

by means of a trailer and the deceased came under the wheels of

the tractor which led to his death.

3. In support of the prosecution case P.W.1 Birbal Pandit,

P.W.2 Gopal Paswan, P.W.3 Surendra Paswan, informant P.W. 4

Yogendra Paswan and P.W. 5 Jai Prakash Paswan have been

examined. Relying on the aforesaid prosecution evidence as also

the admission of the petitioner that he was the driver of the

aforesaid tractor, the trial Court convicted the petitioner and

directed him to serve sentence as stated above. The aforesaid

conviction having been affirmed in appeal, this revision has been

filed questioning the judgment of the trial Court and the appellate

Court on the ground that prosecution witnesses P.W.1 to 6

including the informant P.W.4 are hearsay witnesses and no eye

witness having been examined to support the accident in which the

brother of the informant was crushed the two impugned judgments

be set aside and the petitioner be acquitted. In this connection it is

also pointed out that from perusal of the First Information Report

it would appear that informant learnt about the accident from one

Bhola Manjhi. Bhola Manjhi having not been examined as a

witness the prosecution case should have been rejected for failure

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to examine Bhola Manjhi. It is further submitted on behalf of the

petitioner that from the evidence of the informant P.W.4 it would

further appear that in Court informant has become an eye witness

which is departure from the prosecution case set out by him in the

First Information Report.

4. From perusal of the First Information Report it appears

that in First Information Report the informant claimed to have

learnt about the occurrence from Bhola Manjhi but in Court he

deposed that while he and the deceased were returning from the

market both informant and the deceased came to tea shop and

while the informant was taking tea his brother the deceased moved

10 steps ahead and the tractor bearing No. BR 2B 4089 came from

behind and crushed him and thereby the informant while deposing

in Court has himself become an eye witness of the accident.

5. T