- (1.) S. R. Bhargava, J. In connection with the occurrence of 24th of April, 1985 lower appellate court confirmed the conviction of revisionist Jagdish with offences under Seclion 279, 304 and 427 I. P. C. He further confirmed the. sentence of the revisionist of three months rigorous imprisonment and fine of Rs. 500. 00 under Section 279 I. P. C. to rigorous imprisonment for one year and fine of Rs. 1000. 00 under Section 304 I. P. C. and to rigorous imprisonment for six months and fine of Rs. 500. 00 under Section 427 I. P. C.
(2.) FACTS of the case were that the revisionist was driving a truck, when he approached a railway crossing, gates of the crossing were closed. One Shri Niwas was passing through the railway crossing. Revisionist did not stop the truck and dashed against the gate of the railway crossing and crushed Shri Niwas who subsequently died. Some damage was caused to the gate of the railway crossing also. When the revisionist came in this revision, his revision was admitted on the point of sentence only. It is, however, patent that according to the prosecution case itself revisionist had no intention to cause damage to the railway gate. The incident was not culpable, otherwise revisionist would have been charged with offences under Sections 302, 304 I. P. C. When the revisionist did not intentionally cause damage to the gate and when the damage to the gate was the result of the only rash and negligent driving, revisionist could not have been convicted and sentenced for the offence under Section 427 I. P. C. Shri Niwas was also not justified in crossing the railway lines after the closure of the gate. Obviously it was a case of contributory negligent. In the circumstances of the case this revision should be allowed in part. Conviction and sentence of the revisionist under Section 427 I. P. C. should be set aside. It should be further pointed out that when both the minor and major offences are committed in the same transaction, sentence should be passed only for major offence. Hence the sentence of the revisionist under Section 279 I. P. C. should also be set aside. So far as offence under Section 304-A, I. P. C. is concerned, sentence already undergone and fine of Rs. 2000. 00 should serve the ends of justice.
(3.) HENCE in the result I set aside the conviction and sentence of the revisionist for offence under Section 427 I. P. C. His sentence for offence under Section 279 I. P. C. is also set aside. His sentence under Section 304-A I. P. C. is modified. He is sentenced to the period already undergone and fine of Rs. 2000. 00. The revisionist is on bail. His bail bonds are cancelled and sureties are discharged. He need not surrender. If the revisionist has not deposited fine as yet, he should deposit the same within six weeks. Revision partly allowed. .;