Umesh Chandra Dhyani, J. -
(1.) ON 13.12.1997, at 6:00 p.m., the informant Bhairav Nath, victim Bahadur Singh Matiyani and witness Mahesh Chandra Tiwari were standing at Bailpadaav Crossing and waiting for a bus to go to Gaibua Khas. A bus number DL 1P - 8893 came from Haldwani and stopped at Bailpadaav Crossing. The informant along with Bahadur Singh and Mahesh Chand Tiwari were boarding on the bus. Driver started the bus at once. Bahadur Singh fell from the bus. The bus ran over Bahadur Singh, who was taken to the hospital in unconscious state. The incident was seen by many a passengers. Bahadur Singh died subsequently. An FIR was lodged by informant Bhairva Nath. After the investigation, a charge sheet was submitted against the driver in respect of offences punishable under Sections 279, 338 and 304 -A I.P.C. Statement of the accused Laxman was taken, in which he denied the allegations and claimed trial.
(2.) FIVE witnesses, namely, P.W. 1 Bhairav Nath, P.W. 2 Mahesh Chandra, P.W. 2 Dr. K.C. Bhatt, P.W. 4 Raghu Pande and P.W. 5 Lakhpat Singh, Junior Foreman were examined on behalf of the prosecution. Statement of the accused under section 313 Cr.P.C. was taken, in which he said that he was falsely implicated in the case. No evidence was given in defence. After considering the evidence on record, learned Judicial Magistrate, Kashipur convicted accused Laxman for the offences punishable under Sections 279, 338 and 304 -A I.P.C. and sentenced him appropriately. Aggrieved against the said judgment and order, criminal appeal was preferred, but the same was dismissed. Aggrieved against the impugned Judgment and Order dated 30.08.2006, present criminal revision was preferred. The principal contention of the learned counsel for the revisionist is that chik FIR, G.D., P.S. Ram Nagar, Charge Sheet, site plan, postmortem report and challan nash etc. were not proved by the prosecution. Learned counsel also submitted that the case was not proved on the basis of the oral testimony of the eyewitnesses, namely, P.W. 1 Bhairav Nath and P.W. 2 Mahesh Chandra Tiwari. P.W. 3 Dr. K.C. Bhatt was the medical officer, who provided first aid to the victim, who was brought to nun in unconscious state. P.W. 3 referred him to the hospital at Ram Nagar. He himself was posted at PHC, Bailpadaav. P.W. 3 did not prepare medical report. P.W. 4 Raghu Pande alias Ramu Pande did not support prosecution story. P.W. 5 Lakhpat Singh, Junior Foreman conducted technical examination of the bus, whose driver committed the accident. P.W. 5 proved technical report (Ext. Ka -3) and said that the condition of steering system, brake system, suspension system and tires was fine.
(3.) A very look at the record of the lower court reveals that chik FIR paper No. 3Ka/1; charge sheet, paper No. 4 Ka; copy of the FIR, paper No. 5 Ka/1, copies of G.D. papers No. 5 Ka/2 to Ka/4; inquest report, paper No. 5 Ka/11; extracts of G.D., papers Nno. 5 Ka/13 and 5 Ka/14; challn nash, papers No. 5 Ka/15 to 5 Ka/16; postmortem report papers No. 6 Ka/1 & 6 Ka/2 and site plan, paper No. 7 Ka/1 were not proved by the prosecution. The prosecution was squarely to blame for the lapses in not proving the said papers. It was clearly indicated by leaned Magistrate on 07.04.2005 that the case was old, pending since 1997, many opportunities were given to the prosecution to examine remaining witnesses, but to no avail. The prosecution was cautioned, vide order -dated 07.04.2005, to produce remaining witnesses. A letter was also written to the SSP Udhan Singh Nagar, without yielding any result. On 21.10.2005, prosecution evidence was closed. Thus the case was decided without getting those important prosecution papers proved. It was desirable for the learned Judicial Magistrate to have exhausted the processes for procuring the attendance of the remaining prosecution witnesses. Learned Magistrate failed in his duty to do so. As was said earlier, prosecution also was to blame for the same, in as much as, no sincere effort was made to bring remaining prosecution witnesses and prove those very important prosecution documents.;