Bombay High Court

Rajkumar Dhunichand Sharma vs Yedshi on 17 December, 2013

Bench: T.V. Nalawade

                                                  Cri. Appeal No. 378/12
                                      1




                                                                       
                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD




                                               
                  CRIMINAL APPEAL NO. 378 OF 2012



     Rajkumar Dhunichand Sharma,




                                              
     Age 30 years, Occu. Driver,
     R/o. Bhugatayan, Post Pantula,
     Tal. Ramnagar, Dist. Udaypur (J.K.)
     At present Tatibad, Hirabpur,




                                   
     Tal. Godihari, Dist. Raipur
     (Chattisgarh).                             ....Appellant.


           Versus
                     
                    
     The State of Maharashtra
     Through Complainant
     Suresh Machindranath Garje,
     Police Naik, Police Out Post
      

     Yedshi, Police Station Osmanabad
     (Rural) Tq. and Dist. Osmanabad.           ....Respondent.
   



     Mr. P.B. Gapat, Advocate for appellant.





     Mrs. S.G. Chincholkar, APP for State.


                       CORAM               : T. V. NALAWADE, J.
                       RESERVED ON         : 5th December 2013





                       PRONOUNCED ON : 17th December 2013
     JUDGMENT :

1. The appeal is filed against judgment and order of

Sessions Case No. 135/2011, which was pending in the Court of

Additional Sessions Judge, Osmanabad. The appellant was

Cri. Appeal No. 378/12

charged for offences punishable under sections 304, 307 and 427

of Indian Penal Code and also for the offence punishable under

section 184 of Motor Vehicle Act. The appellant is convicted and

sentenced for offences punishable under sections 307 and 304-A

of I.P.C. and also for offence punishable under section 184 of

Motor Vehicle Act. This Court (Presided over by other Hon'ble

Judge of this Court) has issued notice to the appellant to show

cause as to why the appellant should not be convicted and

sentenced for offence punishable under section 304 of I.P.C.

instead of giving him conviction and sentence for offence

punishable under section 304-A of I.P.C. The appellant has filed

reply to it. On the other hand, the main contention of the

appellant is that the appellant/accused could not have been

convicted and sentenced for offence punishable under section

304-A of I.P.C. as there was no charge for this offence. Both the

sides were heard on merits and also on the point of powers of this

Court including the revisional jurisdiction.

2. In short, the facts leading to the institution of the

appeal can be stated as follows :-

The crime is registered on the basis of report given by

one Shri. Suresh Garje, Police Naik, who was attached to

Osmanabad Rural Police Station and who was doing his duty at

Cri. Appeal No. 378/12

Yedshi Out Post. The incident took place on 18.8.2011. The

complainant and his deceased colleague were expected to do the

petrolling duty at the Out Post. At about 18.45 hours a couple

came on motorcycle to the Police Chowki Yedshi and informed that

at Dhoki, which is situated at the distance of 20 k.m. from the Out

Post, a truck bearing No. CG-04/JB-4946 had dashed to pedestrian

and the pedestrian had died on the spot. They informed that the

truck driver had not stopped the truck there and the truck was

coming towards Yedshi.

3. The complainant and his deceased colleague

Narendra Kale, who was also Police Naik came out of the police

Chowki and they started waiting for truck on the road situated in

front of the Chowki. The complainant was in uniform, but

Narendra Kale was not in uniform. The complainant stopped right

in front of Chowki, but Narendra Kale stopped at some distance

from Chowki with his motorcycle. Narendra Kale was expected to

take action in case the truck was not stopped after giving signal

by the complainant.

4. At about 19.00 hours the truck came towards that

side. The complainant attempted to stop the truck by giving

signal, but the driver drove the truck at the complainant. The

Cri. Appeal No. 378/12

complainant saved himself somehow by jumping aside. Then the

truck gave dash to the motorcycle of Kale. Kale and motorcycle of

Kale virtually came under the truck and Kale died on the spot.

After giving dash to motorcycle which got stuck under the truck, it

was dragged away up to the distance of 500 to 600 mtrs. The

motorcycle became separated and the truck was driven for

further distance of about one k.m. Some persons gave chase to

the truck and when they tried to intercept the truck, the truck

driver left the truck near a petrol pump and ran away.

5. The complainant gave report and on the basis of his

report, the crime came to be registered for offences punishable

under sections 307, 304 etc. of I.P.C. Vithal Kale one API made the

investigation of the case. He prepared the enquest report, he

referred the dead body for P.M. examination and he prepared the

panchanamas of spots where the dash was given to motorcycle

and where the truck was found standing after the incident. The

statements of witnesses including the owner of the truck came to

be recorded during investigation. Accused came to be arrested.

The chargesheet came to be filed in respect of the incident of

causing of death of Narendra Kale, in respect of the incident of

attempt made on the life of the complainant and for causing

damage to the motorcycle of Kale and for dangerous driving.

Cri. Appeal No. 378/12

6. The accused pleaded not guilty. He took the defence

of total denial. The prosecution examined in all nine witnesses.

The Trial Court has given the reason at paragraph Nos. 18, 19 and

20 for not holding the accused guilty for offence punishable under

section 304 of I.P.C. and they are as follows :-

"18 ig At the second place, the ingredients of Sec. 304 of Indian Penal Code are to be considered. Exception 1 to Sec. 300 of Indian

Penal Code runs as under -

Exception 1.- When culpable homicide is not

murder.-Culpable homicide is not murder if the offender, whilst deprived of the power of self-

control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other

person by mistake or accident.

The above exception is subject to the

following provisions:-

First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly.-That the provocation is not

Cri. Appeal No. 378/12

given by anything done in obedience to the law, or by a public servant in the lawful exercise of

the powers of such public servant.

Thirdly.-That the provocation is not given

by anything done in the lawful exercise of the right of private defence.

Explanation.-Whether the provocation was grave and sudden enough to prevent the

offence from amounting to murder is a question of fact.

19 On perusal of this exception, it is clear that the case of the prosecution does not fit in

the exception mentioned above. Though in the charge sheet, it is alleged that the accused to

avoid his arrest from the offence committed by him at the earlier spot, drove the truck at the person of police Naik Kale, it will be seen that

such provocation can not be considered as provocation for causing the death of deceased Police Naik Kale. Thus, it is clear that the accused can not be held guilty for the offence

alleged against him under sec. 304 of Indian Penal Code as alleged by the prosecution.

20. At the same time, it needs to be considered that it has come in the cross-

examination of complainant that police Naik

Cri. Appeal No. 378/12

Kale was not in uniform, therefore at the time of incident, the accused was not certainly knowing

him as police. But, it is proved by the prosecution that at the time of incident, the accused drove the truck rashly and negligently

without following rules of the road and as per version of the complainant, the truck went to the wrong side of the road and gave dash to

deceased Police Naik Kale, who was standing with his motor cycle. It proves rash and

negligent act on the part of the accused, in causing death of police Naik Kale but not

amounting to culpable homicide. Thus, the act committed by the accused attracts the ingredients of sec. 304/A of Indian Penal Code.

Therefore accused can be held guilty for the offence under sec. 304/A of Indian Penal Code."

7. The complainant, PW 1 has given evidence that as he

and deceased Kale had received information against the truck

bearing Nos. CG-04/JB-4946 and as it was informed that the truck

was involved in the case of causing death of a pedestrian, they

were waiting near police Chowki Yedshi for interception of the

truck. He has given evidence that he was in uniform. In the cross

examination, he has admitted that deceased was not in police

uniform. He has given evidence that the truck came near Police

Out Post at about 6.45 p.m. and he gave signal to stop it. He has

Cri. Appeal No. 378/12

deposed that the truck driver did not stop it, but driver drove the

truck at him with high speed. He has given evidence that he

somehow saved himself. He has deposed that the truck gave dash

to the deceased when deceased Kale attempted to stop the truck.

He has given evidence that the truck was driven at Kale. He has

deposed that Kale was run over by the truck and his motorcycle

was dragged ahead by the truck. The report given by complainant

is proved as Exh. 14 and it is consistent on material points with

the oral evidence of the complainant.

8. In F.I.R., it is mentioned that the truck was driven at

the complainant when he attempted to stop it. It is mentioned

that the truck was being driven in rash and negligent manner and

then the dash was given to Kale and death of Kale was caused.

Though there is mention of rash and negligent act of the truck

driver in the F.I.R., no such evidence is given by Kale and he has

said that the truck was driven at him and also at Kale. On one

hand, the Trial Court has held that the prosecution has proved

that the truck was driven at the complainant, but the Trial Court

has held that the death of deceased Kale was caused due to rash

and negligent driving.

9. Kumesh Pawar (PW 2), eye witness has given

Cri. Appeal No. 378/12

evidence which is consistent with the evidence of PW 1. He has

given specific evidence that the deceased was holding a stick in

his hand and he attempted to stop the truck at the relevant time.

In the cross examination, this witness has admitted that police

have filed a case against him in respect of sell of illicit liquor.

However, his statement was recorded immediately on the next

day and no material contradiction as such is proved in his

evidence. There is similar evidence of another eye witness

Santosh Pawar (PW 3). This witness has given more evidence like,

chase was given him for intercepting the truck and then the truck

driver abandoned the truck and ran away. Though these witnesses

have given evidence that they had seen the truck driver, such

statement was not given before police and it appears that they

had opportunity to see the truck driver on the next day when

driver came to be arrested. There is similar evidence of

Deshmukh (PW 6), one more eye witness.

10. Deshmukh (PW 6) acted as panch witness also when

spot panchanama at Exh. 20 was drawn by the Investigating

Officer. The spot panchanama is duly proved and it shows that at

the relevant time, the road had width of 15 ft. The distance

between the spot where the dead body of Kale was found and the

office of Society situated in front of the Out Post where the

Cri. Appeal No. 378/12

complainant was standing is around 70 ft. Between the spot

where the dead body was found and the spot where the

motorcycle was found, there was the distance of 500 to 600 mtrs.

The truck was found in stationary condition at much distance from

this point and evidence is given that the distance is one k.m. It

appears that the said truck was set to fire by some persons, who

must have gathered after the incident. The dead body was lying

on the north side of the road, which was wrong side of the truck.

Both Kale and complainant were standing on the north side of the

road, the driver's side so that driver was able to see the signal

given by them.

11. Smt. Chaya Damodare (PW 4) was attached to Dhoki

Police Station on that day. She has given evidence that on that

day at about 6.30 p.m. she received information on phone that

aforesaid truck had given dash to a pedestrian and the dead body

was lying on the spot and truck had proceeded to Yedshi. She had

noted the number of the truck and she has given substantive

evidence in that regard. Her evidence shows that she had

contacted control room after receiving information.

12. It can be said that there was no opportunity to the

eye witnesses including the complainant to see the truck driver as

Cri. Appeal No. 378/12

it was evening and the truck driver abandoned the truck and ran

away. However, there is the evidence of employer of accused Shri.

Kang (PW 8) in that regard. He has given evidence that accused

was working as driver with him on aforesaid truck. He has

deposed that on 18.8.2011, on the day of incident, the accused

had come with said truck to Latur from Raipur and the truck was

being taken to Chorakhali situated near Dhoki. He has deposed

that at about 9.00 p.m. the accused contacted him on phone and

informed that the truck had given dash to one pedestrian at Dhoki

and then the truck had given dash to a person, who had

attempted to stop the truck. The driver had also informed that he

ran away after abandoning the truck. He has deposed that he had

advised the driver to approach the police, but there was no

response from the accused/driver. This witness has identified the

accused in the Court. No material contradiction in relation to his

statement recorded by police is proved. The relevant record

regarding ownership of the truck is produced on the record.

13. The aforesaid evidence can show following things :-

(i) At the distance of 20 k.m. from Yedshi Out Post,

the truck had given dash to a pedestrian and the

truck driver had not stopped the truck and he had not

Cri. Appeal No. 378/12

discharged his duty like giving information to police.

On the contrary, he had attempted to run away with

the truck and he had driven the truck towards Yedshi.

Thus, there was motive that the accused wanted to

escape to avoid arrest and filing of case against him.

(ii) It was between 6.45 p.m. and 7.00 p.m. on

18.8.2011, the deceased and the complainant had

attempted to stop the truck by intercepting it at

Yedshi Out Post. The complainant was in uniform and

the deceased was holding a stick and as they were

present on the north side of the road, driver's side, it

was possible for the truck driver to see them at the

relevant time, but he drove the truck at complainant

and he gave dash to deceased Kale.

(iii) The dead body of deceased Kale was found on

north side of the road which was wrong side for the

truck.

(iv) The truck had dragged the motorcycle of Kale

up to the distance of 500 to 600 mtrs., but the truck

was not stopped and when the motorcycle became

Cri. Appeal No. 378/12

separated, the truck was driven up to the distance of

one k.m. from this spot. Thus, the driver wanted to

escape and he was knowing what he was doing.

(v) The truck was ultimately stopped at the

distance of one k.m. and from there the truck driver

ran away to escape. He did not approach the police

immediately and he did not follow the advise given by

his employer.

(vi) The accused gave extra judicial confession to

the employer and he admitted that the truck had

given dash to one pedestrian at Dhoki and truck had

given dash to one person who was trying to stop the

truck.

(vii) It is the job of the Trial Court to ascertain as to

whether on the basis of aforesaid circumstances and

other circumstances of the case, inference can be

drawn that the death was either caused due to rash

or negligent driving or the act of the truck driver falls

under the offence of culpable homicide not amounting

to murder punishable under section 304 of I.P.C.

Cri. Appeal No. 378/12

14. The charge was framed for offence punishable under

section 304 of I.P.C. and not for offence punishable under section

304-A of I.P.C. The Criminal Court is expected to know that there is

difference between section 304 and 304-A of I.P.C. Section 299 of

I.P.C. defines culpable homicide. Section 300 defines offence of

murder and section 304 provides for punishment in respect of

culpable homicide. The provisions are as under :-

"299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing

such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act

to cause death, commits the offence of culpable homicide.

300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

2ndly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. or-

Cri. Appeal No. 378/12

3rdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury

intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

4thly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily

injury as is likely to cause death, and commits such act without any excuse for incurring the

risk of causing death or such injury as aforesaid.

304. Punishment for culpable homicide not amounting to murder.-- Whoever

commits culpable homicide not amounting to murder shall be punished with imprisonment for

life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the

death is caused is done with the intention of causing death. or of causing such bodily injury as is likely to cause death;

or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause

Cri. Appeal No. 378/12

death.

304-A. Causing death by negligence.--

Whoever causes the death of any person by doing any rash or negligent act not amounting

to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or

with both. "

15.

The aforesaid provisions show that section 299 of

I.P.C. (part II and part III) contain ingredients like intention and

knowledge and those ingredients need to be proved for giving

punishment to accused under section 304 of I.P.C. Whether there

was intention or knowledge as described in section 299 of I.P.C.,

needs to be ascertained first as part I of section 304 provides for

severe punishment when there was the intention and part II of

section 304 provides for punishment which is less severe when

the knowledge is proved. Both the intention and knowledge need

to be ascertained from the facts and circumstances of the case.

On the other hand, section 304-A of I.P.C. specifically excludes the

offence of culpable homicide defined in section 299 of I.P.C. For

proving the offence punishable under section 304-A of I.P.C. either

rash or negligent act needs to be proved. For this offence, neither

the intention nor the knowledge is required to be proved. Thus,

Cri. Appeal No. 378/12

section 304 and 304-A of I.P.C. provide for punishment in respect

of distinct offences and the offence punishable under section 304-

A of I.P.C. is not lesser offence of either offence of murder or

culpable homicide.

16. The Trial Court has referred the exception No. I to

section 300 of I.P.C. in the discussion and has held that the

accused cannot be held guilty for offence under section 304 of

I.P.C. The discussion shows that there was some misconception in

the mind of the learned Trial Court - Judge. There was virtually no

necessity to refer exception No. I of section 300 of I.P.C. as there

was no charge for offence of murder. The difference between the

offence of culpable homicide and culpable homicide amounting to

murder always needs to be kept in mind. If we compare section

299 and 300 of I.P.C., it can be said that part I of both these

sections is similar, but part II and III of section 299 are different

from the remaining parts of section 300 of I.P.C. In the cases like

present one, part II or part III of section 299 of I.P.C. can be used if

the kind of intention or knowledge mentioned in these two parts is

there. Something additional is required to be proved for proving

the ingredients of part II and part III of section 300 of I.P.C. and

that can be seen in the provisions. We can compare part II of

section 299 with part II and part III of section 300 and we can

Cri. Appeal No. 378/12

compare part III of section 299 with part IV of section 300. There

is clear distinction between these ingredients and there is

something more in section 300 (part II to part IV) than the

ingredients of offence of culpable homicide from part II and III.

The stage of using exceptions given in section 300 of I.P.C. comes

only when ingredients of section 300 are proved. If there are the

ingredients of part II and III of section 299 of I.P.C, but there are no

ingredients of section 300 of I.P.C., there is no question of using

exceptions given in section 300 of I.P.C. Thus, the Trial Court has

committed gross error in entering the discussion of exception to

section 300 of I.P.C. when accused was charged for offence of

culpable homicide punishable under section 304 of I.P.C. and

when the prosecution was expected to prove either part II or part

III of section 299 of I.P.C.

17. The aforesaid discussion shows that gross error has

been committed by the Trial Court while discussing the provisions

of law. There is further gross error like convicting the accused and

sentencing him for offence punishable under section 304-A of

I.P.C. which is distinct offence and for which no charge was

framed. Further, the aforesaid evidence is not at all discussed to

ascertain as to whether the ingredients of offence punishable

under section 304 of I.P.C. are made out. It is already observed

Cri. Appeal No. 378/12

that on one hand, the Trial Court has held that the ingredients of

offence punishable under section 307 of I.P.C. are there, but on

the other hand, the Trial Court has convicted the driver for offence

punishable under section 304-A of I.P.C. when in the same

incident, the death was caused and when the motive was the

same.

18. The learned APP placed reliance on some reported

cases which are as under :-

(i) 2012 (1) SCC 10 [Prithipal Singh Etc. Vs. State of Punjab],

(ii) 1977 (3) SCC 25 [Eknath Shankarrao

Mukkawar Vs. State of Maharashtra],

(iii) 2001 (8) SCC 525 [Surendra Singh Rautela

Vs. State],

(iv) 2003 (8) SCC 625 [K. Pandurangan Vs. S.S.R. Velusamy],

(v) 1975 (2) SCC 706 [Nadir Khan Vs. State (Delhi Administration)

In the first case of Prithipal Singh cited supra, the Apex Court

has discussed the provisions of section 386 (e) of Cr.P.C., 1973. In

appeal filed against the decision of dismissal of the appeal by the

High Court which was against the judgment and order of

conviction given by Trial Court, it is observed by Apex Court that

Cri. Appeal No. 378/12

the High Court has the power to enhance the sentence suo motu.

The Apex Court has discussed the revisional jurisdiction of High

Court and it is observed that even when the State has not

preferred the appeal to High Court, the High Court can suo motu

enhance the sentence by invoking revisional power, however,

before doing so accused should be given opportunity of hearing.

In the second case of Eknath cited supra, it is laid down by the

Apex Court that only because the provision is made in Cr.P.C. like

section 377 for appeal against inadequacy of sentence by the

State Government, it cannot be inferred that High Court's power

of revision under section 401 of Cr.P.C. suo motu is abolished. In

the last three cases cited supra the Apex Court has made similar

observations.

19. For the appellant, the learned counsel placed reliance

on some reported cases. The facts of the case reported as AIR

2001 SUPREME COURT 921 (1) [Shamnsaheb M. Multtani

Vs. State of Karnataka] show that the husband of deceased

was charged for offence punishable under section 302, 498-A of

I.P.C. The Trial Court acquitted him. In appeal to the High Court,

the High Court convicted husband for offence punishable under

section 304-B of I.P.C., dowry death. No notice was given to

accused, calling upon him to enter his defence in respect of

Cri. Appeal No. 378/12

offence under section 304-B. The Apex Court held that such

conviction occasioned failure of justice. It is held that section

304-B of I.P.C is not minor offence of section 302 of I.P.C. and so

separate charge for offence under section 304-B of I.P.C. is

necessary. There cannot be dispute over this proposition.

20. In the case reported as 1979 CRI.L.J. 258 (1)

[Enumula Subbarao and Ors. Vs. The State] ANDHRA

PRADESH HIGH COURT and in the decision of Criminal Writ

Petition No. 699 of 2012 [Arif Ali s/o. Yusuf Ali Sayyed Vs.

State of Maharashtra] [Aurangabad Bench of Bombay High

Court], the two High Courts have discussed the provision of

section 216 of Cr.P.C. It cannot be disputed that there is power

with the Trial Court to frame or alter charge before

pronouncement of the judgment. There is no need to discuss this

settled law.

21. In the case reported as AIR 1962 SUPREME COURT

240 (1) [Thadi Narayana Vs. The State of A.P.] the Apex

Court has held that in appeal filed against conviction by accused

under section 423 (1) (b) (1) of Cr.P.C., 1898, the order of acquittal

in favour of accused in respect of offence for which the charge

was framed cannot be reversed and it is not proper on the part of

Cri. Appeal No. 378/12

Appellate Court to order retrial for that offence. The revisional

jurisdiction is also discussed by the Apex Court in this case.

22. It is true that the enhancement of sentence by

exercising revisional jurisdiction is different from setting aside the

decision of acquittal given in favour of the appellant by exercising

the revisional jurisdiction. Section 401 of Cr.P.C. giving revisional

jurisdiction shows that it needs to be read with section 386, 389,

390 and 391 of Cr.P.C. All the powers except those excluded in

section 401 of Cr.P.C. can be used by the High Court. Section 401

(3) of Cr.P.C. shows that the High Court cannot give conviction by

using the revisional jurisdiction. The provision of section 401 read

with 386 (b) shows that the retrial order can be made by

reversing the finding and sentence when the appeal is filed

against conviction. Similarly section 401 read with section 386 (a)

show that retrial order can be made when appeal is filed against

acquittal. Section 401 is enabling provision.

23. The provision of section 401 is discussed and

interpreted by the Apex Court in subsequently decided case like

1999 CRI.L.J. 16 [Vimal Singh Vs. Khuman Singh and Anr.].

It is observed by the Apex Court that by exercising revisional

jurisdiction, the High Court can set aside the decision of acquittal

Cri. Appeal No. 378/12

provided that there has been manifest error of law or procedure

and the glaring illegality has caused miscarriage of justice. It is

provided that interference by invoking such jurisdiction is possible

in exceptional cases. Thus, there is no prohibition as such in

Cr.P.C. to set aside acquittal by invoking revisional jurisdiction.

[Relied on case reported as AIR 1967 SC 1156 between

Ramekbal and Madan decided by 5 Hon'ble Judges of Supreme

Court]

24. This Court has already made discussion of the

relevant facts and also the law which needs to be applied in the

case. This Court has no hesitation to hold that the judgment and

order of Trial Court needs to be set aside and the matter needs to

be sent back to the Trial Court for retrial. This needs to be done in

the interest of justice.

25. Some cases reported as 2000 CRI.L.J. 4552 [Har

Pal Singh and etc. Vs. State of U.P.], AIR 1970 SUPREME

COURT 1321 (1) [Budhsen and Anr. Vs. State of U.P.] and

AIR 1960 SUPREME COURT 1340 (1) Vaikuntam

Chandrappa and Ors. Vs. State of A.P.] were cited by the

learned counsel for the appellant. They are on the point of

necessity of test identification parade under section 9 of the

Cri. Appeal No. 378/12

Evidence Act. Whether the test identification parade was

necessary or not depends on facts of that case and it is not the

law that unless test identification parade is held, the evidence of

eye witness cannot be believed. In any case, there is evidence of

other nature in the present case to point out that the appellant

was driving the truck on that day. Again it is the matter which

needs to be decided by the Trial Court.

26.

In the cases reported as AIR 1970 KERALA 98 (V.

57 C 20) [Sanku Sreedharan Kottukallil Veettil Konathadi

Kara Vs. State of Kerala] and 1978 CRI.L.J. 411 (1),

BOMBAY HIGH COURT [The State of Maharashtra Vs. Bodya

Ramji Patil], the High Courts have discussed the ingredients of

offence punishable under section 307 of I.P.C. This point also

needs to be decided by the Trial Court. Some observations are

already made in this regard. The Trial Court can do the exercise

after remand of the matter as such exercise was not done.

27. In the result, this Court holds that the revisional

jurisdiction needs to be invoked for setting aside the judgment

and order delivered by Additional Sessions Judge, both for

convicting and sentencing the appellant and for acquitting the

appellant of some offences. So revisional jurisdiction is also

Cri. Appeal No. 378/12

invoked by this Court and following order is made.

                                  ORDER




                                                
                 (I)     The appeal is partly allowed.




                                               
                 (II)    The judgment and order of conviction and

sentence given by the learned Additional Sessions

Judge, Osmanabad in respect of offences punishable

under sections 307 and 304-A of I.P.C. and section

184 of Motor Vehicle Act is hereby set aside.

(III) Similarly, the judgment and order of acquittal

delivered in respect of offence punishable under

section 304 of I.P.C. is hereby set aside.

(IV) The matter is remanded back for retrial.

(V) The Trial Court is not to get influenced by the

observations made by this Court with regard to the

evidence given on aforesaid offences.

(VI) The Trial Court is to decide as to whether there