Bombay High Court
Rajkumar Dhunichand Sharma vs The State Of Maharashtra on 17 December, 2013
Author: T. V. Nalawade
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 ::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 2 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 ::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 3 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 ::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 4 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.
::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 56. 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 ::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 6 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 ::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 7 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 ::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 8 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 ::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 9 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 ::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 10 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 ::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 11 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 ::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 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 ::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 13 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.
::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 1414. 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-::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 15
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 ::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 16 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, ::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 17 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 ::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 18 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 ::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 19 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 ::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 20 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 ::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 21 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 ::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 22 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 ::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 23 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 ::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 24 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 ::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 25 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 is necessity to frame charge for offence punishable under section 304-A of I.P.C. and if the Trial Court ::: Downloaded on - 23/12/2013 20:35:50 ::: Cri. Appeal No. 378/12 26 frames the charge, the opportunity needs to be given to both the sides in that regard. Both the sides will be at liberty to recall the witnesses for examination-in-
chief and cross-examination.
(VII) The accused is behind bars and so, the trial is to be expedited, in any case within three months from the date of receipt of the record.
(VIII) Record and proceeding is to be sent
immediately to the Trial Court.
[ T. V. NALAWADE, J. ]
ssc/
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