JUDGMENT : Heard Mrs. Jasvinder Mazumdar, learned counsel appearing on behalf of the petitioner and Mr. Jitendra Pandey, learned A.P.P. for the State. 2. The instant Criminal Revision is against the judgment dated 20.03.2015 passed by Sri Arun Kumar Gupta II learned District and Additional Sessions Judge-II, Giridih in Criminal Appeal No. 47 of 2009 whereby the Criminal Appeal preferred by the petitioner against the order and judgment dated 26.05.2009 passed by Sri S.K. Singh, learned Judicial Magistrate 1st Class, Giridih in connection with G.R. Case No. 455 of 2003/ T.R. Case No. 125 of 2009 by which the petitioner has been convicted under Section 279, 337 and 304A of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of three months each for the offence under Section 279 and 337 of Indian Penal Code and rigorous imprisonment for a period of one year for the offence under Section 304A Indian Penal Code was affirmed and appeal preferred by the petitioner has been dismissed. 3. In nutshell, the case of prosecution is based upon the fardbeyan of the informant Dev Narayan Prasad Yadav recorded by O/C Tisri P.S. on 16.03.2003 at 9.00 A.M. wherein he has stated that on 15.03.2003 at about 7’o’clock his cousin sister namely, Mitni Devi, Md. Hakim and Ashok Mistri boarded the Commander Jeep No. WB42/8025 from Doranda which was going to Gawan with passengers. It is alleged that despite request of the passengers to drive the vehicles slowly the driver of the said vehicle had started driving the vehicle rashly and negligently and when they reached at Hathiagarh Pahari then the said vehicle had overturned in the dig at the right side of the road due to which three passengers died at the spot and many others got injured. 4. On the basis of fardbeyan of informant, Tisri P.S. Case No. 11 of 2003 dated 16.03.2003 has been registered. The I.O. after completing the investigation submitted charge sheet against the accused for the offence under Section 279, 337 and 304A of the Indian Penal Code. The cognizance of the offence was taken. The substance of accusation was read over to the accused in Hindi to which he pleaded not guilty and claimed to be tried. The I.O. after completing the investigation submitted charge sheet against the accused for the offence under Section 279, 337 and 304A of the Indian Penal Code. The cognizance of the offence was taken. The substance of accusation was read over to the accused in Hindi to which he pleaded not guilty and claimed to be tried. The statement of accused person was recorded under Section 313 of the Cr.P.C. on 23.08.2007 wherein he disowned the incriminating evidence adduced against him and in defense stated that on the date and time of occurrence he was driving the vehicle. 5. In this case, prosecution has examined as many as six witnesses P.W.-1 is Dr. B.N. Das, P.W.-2 is Md. Salim, P.W.-3 is Md. Mansoor, P.W.-4 is Md. Samsuddin, P.W.-5 is Md. Gulzar Mian, P.W.-6 is Deo Narayan Prasad Yadav (informant). 6. Learned counsel for the petitioner has submitted that prosecution has failed to examine any probable witness who had seen the occurrence. Further it is submitted that accident took place on account of failure of brake on steep downward road and not on account of negligence on part of driver, and therefore charges levelled against the petitioner is not made out. Further it has been submitted that M.V.I. report (Exhibit-,A) clearly shows that at the time of examination of vehicle M.V.I. found the failure of engine and brake of the said vehicle. It has been further submitted that prosecution witnesses are close relatives of deceased persons as such they are to be treated as interested witnesses and also I.O. of the case has not been examined in this case. 7. Per contra, learned A.P.P. for the State has submitted that prosecution has successfully proved its case by bringing the statements of prosecution witnesses and other documents. Though I.O. of the case has not been examined but non-examination of I.O. is not fatal to the case of prosecution. In view of above stated submission it has been pointed out that impugned judgment bears no infirmity and prayed to reject this criminal revision. 8. This Court has heard both the parties and perused the materials available on record. 9. For determination of this revision petition, statements of witnesses who were examined by the prosecution are being reproduced herein below: 10. 8. This Court has heard both the parties and perused the materials available on record. 9. For determination of this revision petition, statements of witnesses who were examined by the prosecution are being reproduced herein below: 10. P.W.-6 Deo Narayan Prasad Yadav is the informant and has stated that in the year 2003, on date of occurrence at between 7.00-8.00 P.M., he was standing at Doranda Chowk. His cousin sister Mitni Devi, Md. Hakim and Ashok Mistri had boarded in to the Commander jeep at Doranda Chowk which was going toward Gawan. The said jeep was overturned at Hathiagarh in which three persons including his sister died and some persons got injured. Police came to the place of occurrence and recorded his fardbeyan on which he put his signature which he identified and marked Exhibit-1. In cross-examination, this witness stated that ‘Darogaji’ had not read over the fardbeyan to him and only got his signature on the fardbeyan. He further stated that there was steep downward road near Hathiagarh more. At Para-4 of his cross-examination, he has stated that vehicle turned turtle in the left side and he came to know that brake of vehicle was failed. 11. P.W.-2 Md. Salim has stated that the incident is of 15.03.2003 at 7.00 P.M. He was going to his village from Doranda by jeep No. WB-42-B-8025 which was being driven by its driver very rashly and negligently for which they forbade him. The said vehicle overturned in Hathiagarh due to negligence of its driver and many persons travelling in that vehicle got injured and his brother Md. Hakim, Ashok Mistri and one lady were died at the spot and Mansoor, Siraz and other person got injured. The leg of Mansoor was fractured. Further, one passenger Rauf Mian died in the way while he was being taken to Dhanwar hospital. Police prepared inquest report of his brother Md. Hakim on which he put his signature. He identified the driver present in the Court. In cross-examination, he has stated that vehicle was overturned in the right side. 12. P.W.-3 Md. Mansoor has stated the same fact as stated by P.W.-2 Md. Salim. He had also boarded in the said jeep and got injured and his leg was fractured. In his cross-examination, he has stated that he did not see the driver who was driving the vehicle. 25-26 passengers boarded in the jeep. 12. P.W.-3 Md. Mansoor has stated the same fact as stated by P.W.-2 Md. Salim. He had also boarded in the said jeep and got injured and his leg was fractured. In his cross-examination, he has stated that he did not see the driver who was driving the vehicle. 25-26 passengers boarded in the jeep. He became unconscious after vehicle was overturned. 13. P.W.-4 Md. Samsuddin has stated that incident is of about three years ago. At 8.00P.M., he boarded Commander jeep WB-8025 at Doranda for his village which was being driven by its owner Shyamsunder Singh in very rash and negligent manner for which they had forbidden him. He identified the owner of vehicle who was driving the vehicle at the time of occurrence and present in the Court. In cross-examination, he has stated that he was treated by his village doctor. He further stated that he has no knowledge that the said vehicle was coming after getting it repaired. 14. P.W.-5 Md. Gulzar Mian has stated that on 15.03.2003 at 7.30 P.M. while Sambhu Singh was taking his Commander jeep after getting it repaired, some people boarded in to jeep forcefully at Doranda which was overturned into valley due to which many passengers got injured and his father died in the Dhanwar hospital. In cross-examination, he has stated that there is sharp turn and steep downward road near Hathiagarh. He has further stated that vehicle was being driven by its driver in normal speed and he put brake but it overturned due to failure of brake on steep downward road. In para-3 of his cross-examination, he had stated that accused was not driving the vehicle rashly and negligently. 15. P.W.-1 Dr. B. N. Das has stated that on 16.03.2003, he was posted in Sadar Hospital Giridih. On that day, at 5.15 he conducted post mortem on the dead body of one Md. Hakim and found following injury: (i) Rigor mortis present in all four limbs. (ii) Abraisian on it. Lateral side of chest and axial. (iii) L.W. 1/2” x ¼” on the possial part of right hand. (iv) Abraisian right wrist, right side of chick of right eyebrow. (v) L.W. ½” x ½” left side of nose. (vi) Abraisian on left knee. He identified his writing and signature on the post mortem report and the same has been marked as Exhibit-1. (iii) L.W. 1/2” x ¼” on the possial part of right hand. (iv) Abraisian right wrist, right side of chick of right eyebrow. (v) L.W. ½” x ½” left side of nose. (vi) Abraisian on left knee. He identified his writing and signature on the post mortem report and the same has been marked as Exhibit-1. Further, on the same day, at 5.30 P.M., he conducted post mortem on the dead body of one Bhatni Devi and found following injuries: (i) Rigor mortis present in all four limbs. (ii) L.W. ½” x ¼” on right ear. (iii) Abraisian 6” x ½” P.M. left arm. (iv) L.W.2” x ¼” on right perital region of skull. (v) Swelling left side of chest. He identified his writing and signature on the post mortem report and the same has been marked as Exhibit.1/1. Further, on the same day, at 5.30 P.M., he conducted post mortem on the dead body of one Ashok Mistri and found following injuries: (i) Rigor mortis present in all four limbs. (ii) Abrasion and swelling on right lateral side of chest. (iii) Abrasion on right arm. (iv) Lacerated wound 3” x ½” on right ankle. He identified his writing and signature on the post mortem report and same has been marked as Exhibit1/2. He in his cross-examination stated that the aforesaid injury may be caused by fall on the hard and rough substance. 16. On behalf of defense, MV-I, report has been brought on record and it is marked as Exhibit-A. 17. It is consistent case of defence that the vehicle after getting repaired was taken out from the garage and it met with an accident on account of failure of brake. After perusing the ocular evidence available on record, it is undisputed that the accident took place near Hathiagarh more where the road was steep downward. P.W.-2 has stated that the vehicle Commander Jeep No. WB42/8025 was being driven by its driver in a rash and negligent manner and they forbade him and ultimately vehicle turned turtle on account of negligence of its driver. He also stated that Md. Hakim, Ashok Mistri and one lady died at spot and few of the persons got injured. P.W.-3 has stated in consonance with what P.W.-2 deposed as above. Similar statement has been made by P.W.-4. But P.W.-5 Md. He also stated that Md. Hakim, Ashok Mistri and one lady died at spot and few of the persons got injured. P.W.-3 has stated in consonance with what P.W.-2 deposed as above. Similar statement has been made by P.W.-4. But P.W.-5 Md. Gulzar Mian stated that some persons who forcefully boarded the said vehicle when it was being taken after getting it repaired and there is a sharp turn and steep downward road near Hathiagarh. In cross-examination he has stated that vehicle was being driven by its driver in normal speed and he put brake but it turned turtle on account of failure of brake on steep downward road. Similarly P.W.-6 who happens to be informant has stated that vehicle turned turtle and he came to know that brake of the vehicle was failed, informant’s sister died in the said accident. 18. P.W-1 is the Doctor who did post-mortem of three deceased persons, namely, Md. Hakim, Ashok Mistri and Mitni Devi and has opined that death was on account of hemorrhage and shock by heavy hard and blunt object like road traffic accident and their post mortem report has been marked as 1, 1/1, 1/2 respectively. 19. Death of above said deceased persons on account of road accident has not been specifically disputed by accused/ petitioner. P.W.-5 and P.W-6 as stated above two out of five witnesses who stated about the accident but have deposed regarding failure of brake of the vehicle whereas, three witnesses P.W.-2, 3 and 4 deposed that accused/ petitioner drove the vehicle in a rash and negligent manner. Exhibit A reveals that MVI mentioned in its report that brake and engine were not functional but at the same time it has also been mentioned by MVI that accident could not take place on account of mechanical failure. 20. It is very strange that Motor Vehicle Inspector has not been cited as witness on behalf of prosecution. As stated earlier that this report creates some doubt as at column 3 it is mentioned that leg-brake was not functional but at the same time at para-13 it is written that accident has not taken place on account of mechanical defect of vehicle. This report (Exhibit-A) creates some doubt. As stated earlier that this report creates some doubt as at column 3 it is mentioned that leg-brake was not functional but at the same time at para-13 it is written that accident has not taken place on account of mechanical defect of vehicle. This report (Exhibit-A) creates some doubt. Of course, there is possibility that brake would got non-functional after accident but there is no remark(s)/comment(s) by the Motor Vehicle Inspector in the said report and reason best known to prosecution, it has not taken pain to got examined Motor Vehicle Inspector to clarify the position. 21. In view of above stated discussions, this Court finds that two of the witnesses including informant have spoken regarding failure of brake of the vehicle and MVI report also speaks so. Even it is undisputed that accident took place at the place where road was steep downward. 22. Considering the aforesaid facts and circumstances and discussion made hereinabove, this Court is of considered view that petitioner is at least entitled for benefit of doubt. 23. Consequently, the impugned judgment dated 20.03.2015 passed by Learned District and Additional Sessions Judge II, Giridih in Criminal Appeal No. 47 of 2009 whereby judgment dated 26.05.2009 passed by learned Judicial Magistrate 1st Class, Giridih in connection with G.R. Case No. 455 of 2003/ T.R. Case No. 125 of 2009 by which the petitioner has been convicted under Section 279, 337 and 304A of the Indian Penal Code and sentenced to undergo R.I. for a period of three months each for the offence under Section 279 and 337 of I.P.C. and R.I. for a period of one year under Section 304A of Indian Penal Code was affirmed, is hereby set aside. 24. As such, this Criminal Revision is allowed. 25. Let the trial court record be sent back to the court concerned forthwith.