- (1.) VIRENDRA Saran, J. Buddhu has preferred this revision against the judg ment and order dated 7th February, 1983 of Sri D. K. Agrawal, Special Judge, Banda in Criminal Appeal No. 133 of 1982 dis missing the appeal against the judgment and order dated 25th November, 1982 of the 3rd Additional Munsif-Magistrate, Banda. The applicant has been convicted under Section 279, I. P. C. and sentenced to six months' R. I. and a fine of Rs. 500/- and under Section 304-A, I. P. C. to one year's R. I. and fine of Rs. 2,000/ -.
(2.) ACCORDING to the prosecution case the incident took place on 8th April, 1981 at about 6. 00 p. m. at Bus stop Barokhar Bujurg. It is alleged that informant Shyam Lal had gone there to fetch his relative Babu Ram, his nephew Lakhan Lal and another relative Ram Kumar and Ram Chandra had also gone there at the Bus slop. Babu Lal alighted from a Roadways Bus at the Bus stop. At that very time Bus No. USE 1310 came from the side of Naraini moving with great speed, without blowing horn and knock down Babu Lal. The driver of the Bus did not stop and fled away in the Bus. The informant carried Babu Lal in another Bus for treatment but eventually Babu Lal dies. I have heard learned counsel for the applicant and learned State Counsel and have perused the material placed on record. Besides other points one of the points which needs consideration in the case is whether the witnesses have rightly named the ap plicant. In this case the prosecution did not get the applicant identified by the eye-wit nesses. The learned Sessions Judge has ob served in his judgment as under:- "there is no doubt that the Investigating Officer has failed to discharge his duty as enjoined by law. Neither he put the accused to test iden tification parade nor he recorded the statement of those persons who told him that the accused Hud-dhu was the driver of the bus in question. Instead he has placed reliance on his secret inquiry and deposed in Court that his inquiries revealed that the accused Buddhu was the driver of the bus in question at the time of accident. The law does not permit the Investigating Officer to make secret inquiry. The law enjoins that the Investigating Officer shall record the statements of witnesses who happen to know the facts relevant to discover the offence in question. These witnesses have to depose before Court. The Court is then to assess the evidence and come to a conclusion whether a fact is proved or disproved and pass judgment accordingly. " In view of the above observations of the learned Sessions Judge I am of the opinion that it will not be safe to rely on the evidence of the prosecution witnesses to hold that it was the applicant who was driv ing the Bus at the time of incident and the applicant is entitled to benefit of doubt.
(3.) IN the result the revision is allowed. The conviction and sentences of the ap plicant are set aside. He is on bail. He need not surrender. The bail bonds are dis charged. Revision allowed. .;