Karnataka High Court
Buddesab @ Malliksab Hussensab Nadaf vs The State Of Karnataka on 14 March, 2024
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CRL.RP No. 100103 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL REVISION PETITION NO.100103 OF 2017
BETWEEN:
BUDDESAB @ MALLIKSAB HUSSENSAB NADAF
AGE: 38 YEARS, OCC: DRIVER,
R/O: KALLIMATH ONI,
NAVALGUND, TQ: NAVALGUND,
DIST: DHARWAD.
...PETITIONER
(BY SRI. S.N.BANAKAR, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ADDL. STATE P.P.,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD,
BY P.S.I. DHARWAD RURAL POLICE, DHARWAD.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
Digitally signed THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION
by SAMREEN
AYUB DESHNUR 397 READ WITH 401 OF CR.P.C., PRAYING THAT, THE IMPUGNED
Location: HIGH
COURT OF JUDGEMENT PASSED BY THE II ADDL. DISTRICT AND SESSIONS
KARNATAKA
JUDGE AND SPECIAL JUDGE, DHARWAD IN CRIMINAL APPEAL NO. 99
OF 2016, DATED 20.02.2017 DISMISSING THE APPEAL AND THEREBY
CONFIRMING THE IMPUGNED CONVICTION JUDGEMENT AND
SENTENCE PASSED BY THE II ADDL. CIVIL JUDGE AND JMFC-II
COURT, DHARWAD, IN C.C.NO. 432 OF 2007, DATED 30.08.2016,
KINDLY BE SET ASIDE AND THE PETITIONER KINDLY BE ACQUITTED
FOR THE OFFENCES PUNISHABLE UNDER SECTION 279, 337, 338,
304(A) OF IPC AND SECTION 134 READ WITH SECTION 187 OF M.V.
ACT AND FOR REFUNDING THE AMOUNT OF FINE DEPOSITED BEFORE
THE TRIAL COURT UNDER RECEIPT NO. 0637201, DATED 02.09.2016
AMOUNTING TO RS.5,000/- BY ALLOWING THIS REVISION PETITION.
THIS CRIMINAL REVISION PETITION COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 100103 of 2017
ORDER
The revision petitioner/accused has filed this revision petition challenging the judgment and order, dated 20.02.2017, passed in Criminal Appeal No.99/2016, by the II Additional District & Sessions Judge and Special Judge, Dharwad (for short, 'the First Appellate Court), whereby the First Appellate Court has confirmed the judgment of conviction and order of sentence, dated 30.08.2016, passed in C.C. No.432/2007 by the II Additional Civil Judge and JMFC-II Court, Dharwad (for short, 'the Trial Court') convicting the revision petitioner/accused herein for the offences punishable under Sections 279, 304A, 337, 338 of the Indian Penal Code, 1860 (IPC) and Section 134 read with Section 187 of the Motor Vehicles Act, 1988 (for short, 'the MV Act').
2. Parties to this revision petition are referred to as per the rank before the Trial Court for convenience.
3. Brief and relevant facts of the case leading upto filing of this revision petition are as under:
(a) That one Sri. Sateesh Venkatesh Jadhav (P.W.1), the complainant, filed the complaint/statement before Dharwad -3- NC: 2024:KHC-D:5257 CRL.RP No. 100103 of 2017 Rural Police Station stating that, himself and other passengers were traveling in a lorry bearing registration No.KA-30/2168 on 15.06.2006 at about 5.25 p.m. after attending a marriage. When the said lorry, being driven by the accused, was moving on Navalgund road at Shivalli Village, at about 5.25 p.m., the driver of the said lorry i.e., the accused drove the lorry in a rash and negligent manner endangering human life. Because of this negligent driving of the lorry by the accused, the said lorry turtled down on the road itself. In the said accident one Vasudev, Sonabai, Venkatesh, Ratnabhai and Yamanavva, who were inmates of the said lorry, died. Likewise, some other persons, who are C.Ws.23, 45, 60, 63, and 72 sustained grievous injuries, and C.Ws.17, 18, 47, 64, 69 and 71 sustained simple injuries on their respective persons. It is further stated in the complaint that, without informing the police, the accused ran away from the spot of the accident. With these allegations, a complaint came to be filed with the Dharwad Rural Police Station.
(b) Based on the said complaint, a case in Crime No.85/2016 came to be registered by the Police. The injured persons -4- NC: 2024:KHC-D:5257 CRL.RP No. 100103 of 2017 were shifted to the hospital. The Investigating Officer conducted spot panchanama and seizure panchanama, conducted inquest panchanama on the dead bodies of the deceased and subjected the said dead bodies to post-
mortem by sending them to the hospital. After completion of investigation and after following all the procedures of the investigation, the Investigating Officer filed the charge sheet against the accused for the offences punishable under Sections 279, 304A, 337 & 338 of IPC and under Section 134 read with Section 187 of the MV Act.
(c) Before the Trial Court, to prove the guilt of the accused, the prosecution, in all examined 34 witnesses as P.Ws.1 to P.Ws.34 and got marked documents as per Ex.Ps.1 to Ex.Ps.48 with respective signatures of the witnesses and closed the prosecution witnesses.
(d) The learned Trial Court, on hearing the arguments and on assessment of the evidence on record, found the accused guilty of committing the offences punishable under Sections 279, 304A, 337 & 338 of IPC, and under Section 134 read -5- NC: 2024:KHC-D:5257 CRL.RP No. 100103 of 2017 with Section 187 of the MV Act and sentenced the accused as under:
"The accused is sentenced to pay fine of Rs.1,000/- (One thousand rupees) and in default he shall undergo simple imprisonment for a period of 30 days (Thirty days) for the offence punishable U/s. 279 of IPC.
Further the accused is sentenced to pay fine of Rs.500/- (Five Hundred rupees) and in default he shall undergo simple imprisonment for a period of 15 days (Fifteen days) for the offence punishable U/s. 337 of IPC.
Further the accused is sentenced to undergo simple imprisonment for 30 days (Thirty days) and pay fine of Rs.1,000/- (One thousand rupees) and in default he shall undergo simple imprisonment for a period of 30 days (Thirty days) for the offence punishable U/s.338 of IPC.
Further the accused is sentenced to undergo simple imprisonment for a period of 6 months and he shall also pay fine of Rs.2,000/- (Two thousand rupees) and in default he shall undergo simple imprisonment for a period of 30 days (Thirty days) for the offence punishable U/s. 304A of IPC.
Further the accused is sentenced to pay fine of Rs.500/- (Five Hundred rupees) and in default he shall undergo simple imprisonment for a period of 10 days (Ten days) for the offence punishable U/s. 134 R/w 187 of MV Act."-6-
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(e) This judgment of conviction and order on sentence was challenged by the accused/revision petitioner before the First Appellate Court by filing Criminal Appeal No.99/2015. The First Appellate Court, on hearing the arguments and on reassessment of the evidence, dismissed the said appeal vide judgment and order dated 20.02.2017 and thereby confirmed the judgment of conviction and order on sentence passed by the Trial Court. This is how the petitioner is now before this Court in this revision petition challenging the judgments of both the Courts below.
4. The learned counsel for the revision petitioner, Sri. S.N.Banakar, submits that, none of the ingredients of Sections 279, 337, 338 and 304A of IPC and so also under Section 134 read with Section 187 of the MV Act have been fulfilled by the prosecution. There is no rash and negligent act attributable on the part of the accused in driving the lorry. It is his submission that, if the evidence adduced by the prosecution is taken into consideration, it is stated that the vehicle was moving at a high speed. According to the learned counsel, speed is not the criteria. He further submits that the findings of the Trial Court and the First Appellate Court are quite erroneous. The -7- NC: 2024:KHC-D:5257 CRL.RP No. 100103 of 2017 very rash and negligent driving of the lorry by the accused is not proved in accordance with law. As there is no acceptable and legal evidence adduced by the prosecution, he submits that the evidence propounded by the witnesses show that the accused was not rash and negligent in driving the lorry. The witnesses have spoken before the Court that because of breaking of phata fixed to the lorry, the said lorry turtled down on the road and as such, the accused was not rash and negligent in driving the lorry and causing the accident. It is his submission that the eye witnesses in this case, being injured persons, have not supported the case of the prosecution and most of the witnesses have turned hostile.
5. He submits that in view of the factual features, when the that accused is not responsible for rash and negligent driving of the lorry in the manner alleged by the prosecution, and in view of the inconsistent evidence spoken to by the witnesses, he submits that a doubt arises in the case of the prosecution with regard to the very accident in question. According to him, while appreciating the evidence, as laid down by this Court in Balaji Alias Setu Amar Raj Vs. State of -8- NC: 2024:KHC-D:5257 CRL.RP No. 100103 of 2017 Karnataka1, when two are possible, i.e., a view favouring the accused and another favouring the prosecution, that view favouring the accused shall be preferred. Relying upon the said judgment of the Division Bench of this Court, it is submitted that the evidence spoken to by the witnesses favour the view in favour of the accused. Therefore, he submits that, as this is a revisional Court and as the propriety of the judgment and orders of the Trial Court and First Appellate Courts are questioned in this revision, prays to interfere with the judgments and orders of the two courts, re-appreciate the evidence and prays for acquitting the accused. In support of his submission, the learned counsel, Sri. S.N.Banakar took this Court through various evidence spoken to by the witnesses and so also the documents relied upon by the prosecution.
6. As against this submission, Sri. M.B.Gundawade, learned Additional State Public Prosecutor submits that, the Trial Court and the First Appellate Court have appreciated the evidence in proper perspective. The very carrying of the passengers in the lorry without permit itself amounts to rashness and negligence. He submits that, the evidence of injured 1 2024(1) KCCR 765 (DB) -9- NC: 2024:KHC-D:5257 CRL.RP No. 100103 of 2017 witnesses, who are the inmates in the cabin as well as inmates in the body of the said lorry, is consistent that the lorry was being driven by the accused at a high speed and that one of the inmates had instructed and requested him (accused) to drive the lorry in a slow manner, but without caring to the request and instructions, the accused drove the lorry at a high speed and made the said lorry to turtle down in the middle of the road. Learned Addl. SPP submits that, the witnesses so examined in the case have consistently spoken about the rash and negligent driving of the lorry by the accused and as there is no proper evidence adduced before both the Trial Court and the First Appellate Court, the argument of the counsel for the petitioner cannot be accepted. He further submits that this being a revision petition, this Court cannot re-appreciate the evidence sitting as an Appellate Court. He submits that there is no merit in this revision petition and prays for dismissal of the same.
7. I have given my anxious consideration to the arguments advanced by both the sides and meticulously perused the papers. The point that would arise for consideration of this Court is as under:
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i) Whether the judgment of conviction and order on sentence passed by the Trial Court and confirmed by the First Appellate Court suffers from perversity, capriciousness, illegality, and requires interference with the finding of the Courts below holding the accused guilty of the offences punishable under Sections 297, 304A, 337 and 338 of IPC and under Section 134 read with Section 187 of the MV Act?
8. My answer to the above point is in partly affirmative for the following:
REASONS
9. It is the settled principle that, in a case of the present nature, it is the duty of the prosecution to prove that the accident occurred in the manner as alleged by it. To that effect, the prosecution relies upon the contents of Ex.P.1-complaint filed by one S.V. Jadhav (P.W.1). P.W.1 specifically stated in his complaint that, on 15.06.2016, himself and other villagers had attended a marriage function, and were returning to their villages in the lorry bearing Registration No.KA-30/2168. It is the specific allegation made in the complaint that, in the said lorry, in all, there were 43 persons traveling, and when the said lorry came near Shivalli village on public road, because of the speed
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NC: 2024:KHC-D:5257 CRL.RP No. 100103 of 2017 of the said lorry, being driven by the accused, the said lorry turtled down on the middle of the road. In the said accident, five persons died, somany persons sustained grievous injuries and somany others sustained simple injuries. The said accident had taken place at 5.25 p.m. on 15.06.2016. In the said accident, Vasudev, Sonabai, Venkatesh, Ratnabhai and Yamanavva succumbed to the accidental injuries. To that effect, the prosecution relies upon the inquest panchanamas marked as Exs.P.2 to P.6. So also, the prosecution relied upon the Post- mortem Reports as per Exs.P.41 to 43 and 45 & 46. So also, the prosecution relied upon the wound certificates of the injured inmates of the said lorry marked as Exs.P.24 to P.40. Ex.P.7 is the spot panchanama.
10. A reading of all these documentary evidence coupled with the oral evidence led by the prosecution, it is duly proved by the prosecution that the said accident had taken place on 15.06.2016 at 5.25 p.m. on Shivalli road. Even the defence has not denied the occurrence of the accident in question. Therefore, when all these factual features coupled with the oral and documentary evidence led by the prosecution is read together, it can be stated that the prosecution is able to establish the
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NC: 2024:KHC-D:5257 CRL.RP No. 100103 of 2017 accident, the death of five inmates of the lorry as well as the injuries sustained by other inmates of the lorry in question as per the wound certificate marked in evidence. The prosecution relies upon Ex.P.44, the Motor Vehicle Accident Report and this Report shows that, the accident in question had taken place not because of any mechanical defects. The Motor Vehicle Inspector, on mechanical examination of the lorry, has noticed damage caused to the said lorry. Thus, the prosecution is able to prove that the said accident had taken place not because of any mechanical defect in the lorry. These admitted facts need not be proved.
11. In a case of the present nature, it is the duty of the prosecution to prove that the accused was rash and negligent in driving the lorry and because of the same, the said accident had taken place, and heavy burden lies on the prosecution to bring home the guilt of the accused beyond all reasonable doubt. It is well settled principles of law that, in a criminal case, it is the duty of the prosecution to bring home the guilt of the accused beyond all reasonable doubt. That means, even if a slightest doubt arises in the case of the prosecution, the benefit of doubt shall have to be extended to the accused.
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12. As stated above, in the said accident, five inmates died, five inmates sustained grievous injuries and eleven inmates sustained simple injuries. It is the case of the prosecution that immediately after the accident, driver of the lorry i.e., the accused ran away from the place without informing the about the accident to the nearest police station. Thus, the prosecution relies upon the documentary evidence at Exs.P.1 to P.14 to prove its case.
13. It is settled principles of law that rashness and negligence are not same thing. As rightly submitted by the learned counsel for the petitioner, mere negligence cannot be construed as rashness. In order to attract the principle of 'criminal rashness' and 'criminal negligence', it has to be gathered from the evidence placed on record. That means such a degree of rashness has to be established by the prosecution that the hazard was of such a degree that injury was most likely to be caused. The element of criminality lies in the accused having run the risk of doing such an act with recklessness and indifference to the consequences. 'Rash' and 'Negligence' are distinguishable, that means one is exclusive of the other.
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14. Evidently, the doctrine of res ipsa loquitur cannot be strictly applicable to criminal cases. However, in rarest circumstances, such doctrine can be applied.
15. In this case, as stated supra, PW1-Satish Jadhav (complainant), PW3-Smt.Laxmi, PW8-Sushila W/o. Shivayogi, PW9-Sharada W/o.Maruti Maranbasti, PW10-Sri.N.C.Guledkoppa are the important witnesses examined by the prosecution. These witnesses have consistently spoken in their respective evidence that they were travelling in the offending lorry driven by the accused on the alleged date of the incident. It is their evidence that, the accused was driving the offending lorry at a high speed and in rash and negligent manner. Likewise, PW16-Manjunath Jadhav, PW17-Praveen Vasudev Adanur, PW18-Krishna Vasudev Adanur, PW19-Shivayogi Hebballi, PW20-Basavantappa Jadhav, PW22-S.R.Suryavanshi, PW29-M.P.Guled, PW30-R.H. Chalawadi and PW31-B.K.Talawar, in their respective evidence, have stated before the Trial Court that they were inmates of the said offending lorry on the date of the accident. In unequivocal terms they have deposed that, because of driving of the lorry by the accused at a high speed in rash and negligent manner the said accident had taken place. They stated that, though there was a
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NC: 2024:KHC-D:5257 CRL.RP No. 100103 of 2017 request made by them with the accused to drive the lorry slowly with caution, but the accused did not listen to them and while he was overtaking another vehicle at a high speed, he lost control over the vehicle and caused the accident.
16. It is the evidence of PW1 that, he warned the accused not to drive the lorry in such a manner, so also other inmates of the lorry requested the accused not to drive lorry at a high speed. PW1 is consistent in his evidence that he frequently made requests to the driver not to drive the lorry at a high speed as there was no emergency or urgency at all.
17. On reading the evidence of the aforesaid witnesses i.e. PW1, PW3, PW8 to PW10, PW16 to PW20, PW21 to PW31 it do demonstrates that, though these inmates of the lorry requested the accused not to drive the lorry at a high speed, the accused drove it at a high speed and caused the accident. It is elicited in the cross-examination of some witnesses that, because of breaking of Phata of the said lorry, the said lorry got turtled. It is submitted by the counsel for the accused that, because of this mechanical defect in the said lorry, the said accident has taken place. But the evidence of Motor Vehicle
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NC: 2024:KHC-D:5257 CRL.RP No. 100103 of 2017 Inspector and the document i.e. IMV report submitted by him is very much silent about breaking of phata of the lorry, which means that the accident has taken place not because of any mechanical defect in the lorry and therefore, the very defence of the accused that because of breaking of phata of the lorry, the said accident has taken place cannot be taken as truthful defence.
18. The witnesses stated supra have given graphic account of the manner in which the said accident has taken place. They were inmates of the offending lorry at the time of the accident and they are the best persons to say about the conduct of the driver of the vehicle. It is true that there is no definition under the provisions of Section 279 of IPC that, if the said vehicle is being driven in high speed it amounts to rashness or negligence. It is not necessary that the rash or negligent act should result in injury to life or property. Speed is not criteria. It is also true that, if the road is open, the drivers can drive their vehicles in as rash as they can. But when they anticipate another vehicle or overtaking another vehicle, all available precautions to avoid any casualty, have to be taken by the drivers. In this case, the accused being driver of the said offending lorry was carrying
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NC: 2024:KHC-D:5257 CRL.RP No. 100103 of 2017 43 passengers not only sitting in cabin but also in the body of the lorry. He must have thought of the safety of the passengers, who were travelling in the said lorry. But he did not do so. PW1 requested the accused-driver not to drive the lorry at a high speed as there was no urgency. When such a request was made by PW1, who was sitting in the cabin of the lorry not to drive the lorry at a high speed, he would be the best person who has explained regarding the manner in which the accused drove the lorry. His evidence has to be accepted.
19. Even other inmates of the lorry had requested the lorry driver not to drive the lorry at a high speed, in rash and negligent manner. The very conduct of the accused in driving the offending lorry at a high speed and making it to turtle down on the road at the time of overtaking another vehicle, amounts to rashness and negligence on the part of the accused-driver. Therefore, the very nature of the accident brought on record by the prosecution by placing oral as well as documentary evidence, do establish that the criminality lies in the accused in running a risk of driving the said lorry at a high speed in rash and negligent manner, endangering human life, though he was knowing that he was carrying 43 passengers in the said lorry.
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NC: 2024:KHC-D:5257 CRL.RP No. 100103 of 2017 There was no urgency at all as spoken to by PW1 in his evidence. Carrying of 43 passengers without any permit as stated above itself amounts to rashness and negligence. The said 43 persons, after attending marriage, were returning to their village. The accused-driver could have thought of the safety of the inmates of the lorry.
20. It has come in the evidence of the witnesses that, the driver was carrying nearly 60 people in the offending goods lorry. PW1 has stated that in all there were 43 passengers travelling in the said lorry and the accused being the driver of the said lorry could have taken care and caution as rightly observed by the Courts below. Because of the accident, 5 persons died, 11 persons sustained simple injuries and 5 persons sustained grievous injuries. Even the evidence of PW8 to PW11 do demonstrate about the manner in which the accused-driver of the lorry drove the offending lorry. Though the prosecution has given up some of the witnesses, but the witnesses so examined in this case have consistently spoken about the rash and negligent act on the part of the accused in driving the offending lorry on the alleged date of the incident. They have specifically stated in their evidence that the driver drove the lorry at a high
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NC: 2024:KHC-D:5257 CRL.RP No. 100103 of 2017 speed and lost his control over the vehicle due to which the lorry got turtled down.
21. As rightly submitted by the learned Additional SPP, the Trial Court as well as First Appellate Court have rightly appreciated the evidence placed on record by the prosecution and have rightly found the accused guilty of committing the aforesaid offences. Though a defence was taken by the accused that when the lorry was proceeding near Shivalli village the phata of the lorry had broken due to which the accident occurred, but this fact is not duly proved by the defence in accordance with law. For the sake of defence, the accused has taken such a defence of breaking of phata of the lorry that too without any proof. Ex.P4-IMV report is quite contrary to the said defence.
22. The Investigating Officer has properly investigated the case and filed charge sheet against the accused and the Trial Court has rightly found the accused guilty of committing the aforesaid offences. The First Appellate Court has also re- appreciated the evidence on record and has confirmed the judgment of conviction and order on sentence passed by the
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NC: 2024:KHC-D:5257 CRL.RP No. 100103 of 2017 Trial Court. Therefore, I do not find any factual or legal error committed by both the Courts below in holding the accused guilty of committing offences alleged against him.
23. So far as sentence is concerned, the learned counsel for the petitioner-accused submits that the said accident has taken place in the year 2006. Now we are in the year 2024. When the accident took place, the accused was aged 28 years and now he must have been aged 56 years. It is submitted that he is having a family and children. He is the only bread earning member in his family. It is the only mitigating circumstance brought on record by the counsel for the accused.
24. The Trial Court has convicted the accused for the offence punishable under Section 279 of IPC. When the accused is found guilty of committing offence punishable under Section 304-A of IPC, the question of sentencing the accused for the offence punishable under Section 279 of IPC does not arise at all since minor offence merges with major offence. Therefore, to the extent of sentencing the accused for the offence under Section 279 of IPC, the judgment of the Trial Court requires interference.
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25. So far as judgment of convicting the accused for the offences punishable under section 337, 338 and 304-A of IPC, section 134 read with 187 of Motor Vehicles Act is concerned, same is confirmed.
26. So far as sentencing the accused for the offence punishable under Sections 304-A of IPC is concerned same requires to be modified to the extent that the accused shall undergo simple imprisonment for a period of six months. However, sentence of imprisonment imposed for the offence punihsbale under section 338 of IPC and the fine imposed on the accused for the offence under section, 337, 338 and 304-A of IPC and Section 134 read with 187 of the Motor Vehicle Act requires to be maintained.
27. Resultantly, I pass the following:
ORDER i. The criminal revision petition filed by the petitioner-accused is allowed in part.
ii. The judgment of conviction and order of
sentence passed by the Trial Court and
confirmed by the First Appellate Court against
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NC: 2024:KHC-D:5257 CRL.RP No. 100103 of 2017 the accused for the offence under Section 279 of IPC is hereby set aside.
iii. The judgment of conviction passed by the Trial Court and confirmed by the First Appellate Court for the offence punishable under Sections 337, 338 and 304-A of IPC and section 134 read with 187 of Motor Vehicles Act is hereby confirmed. However, the sentence of imprisonment for the offence under Section 304-A of IPC is modified to the extent that the accused shall undergo simple imprisonment for a period of six months with fine imposed by the Trial Court.
iv. The sentence of imprisonment for the offence under Section 338 of IPC is confirmed.
v. The order of imposing fine by the Trial Court for the offence punishable under section 337, 338 and 304-A of IPC and section 134 read with 187 of Motor Vehicles Act is hereby confirmed.
vi. The accused shall surrender himself before the Trial Court within fifteen days from today and shall undergo the sentence.
vii. The Trial Court is directed to issue conviction warrant to the accused.
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NC: 2024:KHC-D:5257 CRL.RP No. 100103 of 2017 viii. Send back the Trial Court Records to the concerned Trial Court forthwith along with copy of this judgment for compliance.
Sd/-
JUDGE KMS,YAN List No.: 1 Sl No.: 2