ORDER : 1. Heard Mr. A. S. Dayal, learned counsel appearing on behalf of the petitioner. 2. Heard Mrs. Amrita Kumari, learned counsel appearing on behalf of the State. 3. This revision application has been filed against the judgment and order dated 26.07.2008 passed by the learned Ist Additional Sessions Judge, Koderma in Cr. Appeal No. 17 of 2006 dismissing the criminal appeal and confirming the judgment of conviction and the order of sentence dated 12.04.2006 in G.R. Case No. 305 of 2002, T. R. No. 220 of 2006 passed by learned Judicial Magistrate, 1st Class, Koderma by which the petitioner was convicted under Section 337 of Indian Penal Code and was sentenced to undergo Rigorous Imprisonment for three months with fine of Rs. 500/- and in default, to undergo imprisonment for 15 days and was further convicted under Section 304-A of Indian Penal Code and was sentenced to undergo Rigorous Imprisonment for a period of two years with fine of Rs. 3000/- and in default, to undergo Simple Imprisonment for three months with a direction that both the sentences shall run concurrently. 4. The prosecution case in short is that on 15.05.2002, the fardbeyan of the informant, namely, Harendra Kumar Singh was recorded by S.I. R.B. Chaudhary of Tilaiya P.S. alleging interalia that on 15.05.2002 informant along with his family members was going to his village home at Mirzapur, District- Chhapra from his residence Kesharpur Colliery, Katras, District-Dhanbad by a rented jeep bearing No.-JH 10A-4491. The petitioner was driving the vehicle rashly and negligently and as such the informant and other persons asked him to drive slowly and carefully, but the petitioner did not pay any heed to the request. When the jeep reached near Azad Mohallah at Tilaiya by-pass, at about 11:30 a.m., the vehicle got overturned and in this accident all occupants received injuries including Poonam Kumari who later on died in course of treatment in hospital. 5. On the basis of the fardbeyan, the case was registered as Koderma (Telaiya) P.S. Case No. 185 of 2000 under Sections 279, 337, 338, 304-A of IPC against the petitioner. After completion of investigation, Charge-sheet No. 68/2002 dated 31.05.2002 was submitted under Sections 279, 337, 338, 304-A of IPC against the petitioner and the C.J.M., Koderma on 12.08.2002 took cognizance of the offences and transferred the case for trial in disposal. After completion of investigation, Charge-sheet No. 68/2002 dated 31.05.2002 was submitted under Sections 279, 337, 338, 304-A of IPC against the petitioner and the C.J.M., Koderma on 12.08.2002 took cognizance of the offences and transferred the case for trial in disposal. Finally, the case was transferred before the trial court on 05.05.2005. 6. The learned counsel for the petitioner while advancing his argument submits that the impugned judgments passed by the learned courts below suffers from perversity and accordingly, they calls for interference in revisional jurisdiction. The learned counsel has referred to Trial Court’s judgment and submits that there is no discussion of the evidence of D.W.-1 regarding the manner of occurrence of the incident. It was alleged by the prosecution that the accident had taken place due to rash and negligent driving of the petitioner. It was the specific case of the petitioner that the same had taken place due to sudden burst of tyre and tube of the vehicle which was supported by a witness D.W.-1 who was also travelling in the same vehicle and the incident happened. He submits that the learned trial court has neither accepted nor rejected the evidence of D.W.-1 while holding that the accident had taken place due to rash and negligent driving of the petitioner. 7. The learned counsel further submits that the learned Appellate Court has rejected the version of the manner of accident, as given by the petitioner in defence, that the accident took place due to sudden burst of tyre and tube of the vehicle, and has held it to be not believable on the ground that there is no legal evidence on record, and only a defence witness, namely, Shankar Sao (D.W.-1) has been examined who has stated in his evidence that the right side tyre and tube had suddenly burst which resulted in the accident. He submits that the learned Appellate Court has recorded that the defence has not produced and marked/exhibited any M.V.I. report in support of his defence. The second reason which has been given by the learned Lower Appellate Court to reject the plea of the petitioner was that from perusal of the cross-examination of P.Ws.-1 to 4, it is clear that at the time of trial, the learned defence counsel did not put any question to any of the material witness on this point. The second reason which has been given by the learned Lower Appellate Court to reject the plea of the petitioner was that from perusal of the cross-examination of P.Ws.-1 to 4, it is clear that at the time of trial, the learned defence counsel did not put any question to any of the material witness on this point. The third point which has been taken by the learned Appellate Court is that at the time of recording of the statement of the accused under Section 313 of Code of Criminal Procedure, the accused had occasion to explain this fact, but from perusal of his statement, it is quite clear that he has not uttered a single word about the sudden burst of tyre and tube. In view of the aforesaid, the version of the defence that the accident took place due to sudden burst of the tyre and tube of the vehicle was rejected. The learned Appellate Court has also rejected the oral evidence of the defence-witness by stating that this witness cannot be relied upon because there is ample evidence on record that the informant had hired the said vehicle for going to his village home at Mirzapur and on the date of accident, only the informant and his family members were travelling by that vehicle and as such, the statement of defence-witness that he was also travelling by the vehicle involved, is totally unbelievable, and accordingly, no reliance can be placed on the evidence of this defence-witness. 8. The learned counsel submits that the aforesaid finding of the learned Lower Appellate Court that only the family members of the informant were travelling in the vehicle is ex-facie perverse in view of the fact that the evidence of P.W.-1 at Para-7 clearly indicates that number of family members in the vehicle were seven to eight persons and there were other persons also who travelling on the vehicle and the witness was not in a position to disclose the names of the other persons who were travelling on the vehicle. He further submits that this fact is also reflected from the evidence of P.W.-2 at Para-3 who has stated that about 11 to 12 persons were travelling on the vehicle. He further submits that this fact is also reflected from the evidence of P.W.-2 at Para-3 who has stated that about 11 to 12 persons were travelling on the vehicle. The learned counsel further submits that from the statement of the accused recorded under Section 313 of Cr.P.C. before the learned court below, the petitioner had denied the allegation and in response to the clarification asked for, he has stated that he will give evidence and in such circumstances, it cannot be said that the petitioner did not respond to the question put to the petitioner. The learned counsel further submits that merely because no document in connection with the M.V.I. report was exhibited, the same itself cannot be a ground for rejection of oral evidence of D.W.-1 who has deposed that he was also travelling in the vehicle. The learned counsel accordingly submits that the finding of the learned court below that the accident had taken place due to rash and negligent act of the driver has been proved before the learned trial court beyond all reasonable doubts, is perverse on account of non-consideration of the evidence of D.W-1 on the point of manner of occurrence. He further submits that if the evidence of D.W.-1 would have been properly considered by the learned trial court, it would have been indicated that the accident had occurred due to burst of tyre and tube. The learned counsel further submits that at least, benefit of doubt should have been given to the petitioner by the learned Trial Court instead of ignoring the evidence of D.W.-1 on the point of manner of occurrence of the incident. He also submits that the learned trial court has not at all considered the evidence of the D.W-1, while giving the finding of rash and negligent driving and the learned lower appellate court has rejected the evidence of D.W-1 for erroneous and for perverse reasons i.e. only the family members were travelling on the vehicle and accordingly the D.W.-1 cannot be said to be travelling on the vehicle, although there is clear and consistent evidence of the prosecution side that there were about 8 members of the same family of informant and total persons travelling on the vehicle were 12. 9. 9. The learned A.P.P. appearing on behalf of the State, on the other hand, submits that the scope of revisional jurisdiction is very limited and there is no scope for re-appreciation of evidence. However, during the course of argument, the learned A.P.P. could not dispute the fact that from perusal of evidence of P.Ws.-1 and 2, it is clear that apart from the family members of the informant, there were other co-passengers travelling on the vehicle. The learned A.P.P. further submits that it was for the defence to establish that D.W.-1 was the same person who was travelling in the vehicle. 10. Upon this, the learned counsel for the petitioner submits that it was for the prosecution to cross-examine the defence-witness on this point. 11. From perusal of the records of the case, this Court finds that one defence-witness namely, Shankar Sao has been examined on behalf of the defence as D.W.-1 who has deposed that on 15-05-2002, he was going to Biharsharif on the Trekker No.4491 and when they reached near Tilaiya Dam, the right side of the vehicle got burst and the vehicle got overturned. The vehicle was going slowly and he was also boarded in the vehicle. During cross-examination, D.W.-1 has deposed that 12-13 persons were boarded in the vehicle and the accident had taken place at 8:00 – 09:00 A.M. He went to Biharsharif by taking bus, but he does not remember the number of the bus. He had also received minor injuries and he cannot say who others had received injuries. He has no knowledge as to whether any person had died or not. To the suggestions, D.W.-1 deposed that it is not correct to say that the driver of the Trekker was driving the vehicle rashly and negligently and overturned the vehicle which caused injuries to many persons and Poonam Kumari died. He has further deposed that the petitioner resides in his mohalla who is present in court. 12. After hearing the learned counsel appearing on behalf of the petitioner and the learned A.P.P. appearing on behalf of the State, this Court finds that the learned Appellate Court has totally rejected the evidence of sole defence-witness, D.W.-1, by citing three reasons which have been pointed out by the learned counsel appearing on behalf of the petitioner. 12. After hearing the learned counsel appearing on behalf of the petitioner and the learned A.P.P. appearing on behalf of the State, this Court finds that the learned Appellate Court has totally rejected the evidence of sole defence-witness, D.W.-1, by citing three reasons which have been pointed out by the learned counsel appearing on behalf of the petitioner. So far as the first reason regarding non-exhibiting of any M.V.I. report is concerned, this Court is of the considered view that merely because the M.V.I. report was not exhibited, the same itself is not sufficient to reject the oral evidence led by the defence. The second reason which has been cited by the learned Appellate Court is that, on the vehicle, only the family members of the informant were travelling and accordingly, the version of the defence-witness that he was also travelling in the vehicle has been rejected. This finding of the learned Lower Appellate Court is ex-facie perverse, in as much as, the evidences of P.W.-1 and 2 itself shows that the family members of the informant were travelling with other persons also and the names of such persons have not been disclosed in their evidences. Accordingly, rejection of evidence of D.W.-1 by the learned Lower Appellate Court on the ground that only family members of the informant were travelling on the vehicle and therefore, D.W.-1 was not travelling on the vehicle, is perverse. So far as third reason i.e. the statement of the petitioner recorded under Section 313 of Cr.P.C. is concerned, while giving explanation, the accused (petitioner) has simply stated that he will led evidence and he led defence evidence by producing the defence-witness D.W.-1. Accordingly, not giving any explanation immediately at the time of recording of his statement under Section 313 of Cr.P.C. could not have been taken to be a reason for his conviction and a reason for rejection of the evidence which was led by the defence i.e. evidence of D.W.-1. 13. Considering the totality of the facts and circumstances of this case, this Court is of the considered view that the evidence of the defence-witness, D.W.-1 was wrongly rejected by learned Appellate Court by committing errors as indicated above which makes the impugned judgment perverse and has caused miscarriage of justice to the petitioner. 13. Considering the totality of the facts and circumstances of this case, this Court is of the considered view that the evidence of the defence-witness, D.W.-1 was wrongly rejected by learned Appellate Court by committing errors as indicated above which makes the impugned judgment perverse and has caused miscarriage of justice to the petitioner. This Court further finds that the learned trial court has neither rejected, nor accepted the evidence of D.W-1 on the point of manner of occurrence of the incident who was travelling on the vehicle and had clearly deposed that the accident had taken place due to bursting of tyre and tube. Accordingly, this Court is inclined to exercise power under revisional jurisdiction to rectify such error and prevent the miscarriage of justice. This Court is of the considered view that if the evidence of the defence-witness, D.W.-1 would have considered by the learned courts below properly, it creates a doubt in the version of the prosecution case that the cause of accident was due to rash and negligent driving by the petitioner and it cannot be said that prosecution has been able to prove the case against the petitioner beyond all reasonable doubts. Thus, the manner of occurrence and the allegation that the accident took place due to rash and negligent driving of the petitioner was not proved by the prosecution beyond all reasonable doubts. Accordingly, this Court is of the considered view that the petitioner is entitled for the benefit of doubt. 14. This Court further finds that the learned appellate court has also failed to consider the evidence of D.W.-1 in the aforesaid aspects of the case in proper way and has wrongly confirmed the judgment of conviction and the order of sentence of the petitioner passed by the learned trial court. 15. Therefore, the impugned judgment of conviction and the sentence of the petitioner passed by the learned Trial Court as well as the judgment passed by the learned appellate court, is hereby set-aside and the bailors of the petitioner are discharged from the liability of their bail bonds which they have furnished. 16. Accordingly, the present revision application preferred on behalf of the petitioner is hereby allowed. 17. Let the lower court records of the case be sent back immediately to the learned court below. 18. Let a copy of this order be communicated to the learned court below through ‘FAX’.