C.A. VAIDIALINGAM, J.
1. In this appeal, by special leave, on behalf of the appellant-accused, Mr H.C. Gupta, learned counsel, attacks the judgment and order of the Jammu and Kashmir High Court, dated April 5, 1968, in criminal Second Appeal No. 1 of 1967, confirming the appellant's conviction as well as the sentence imposed on him, for an offence under Section 304-A of the IPC corresponding to Section 304-A of the Indian Penal Code.
2. The case of the prosecution was as follows:
On July 24, 1959, Balbadar, a constable had gone in search of the appellant to serve a warrant on him. On the way he met another constable Mohd. Umar. Both of them met the accused, who was driving a truck loaded with sleepers. The accused was asked to stop the truck and receive the warrant. The accused refused to stop and increased the speed of the truck. Balbadar got on the foot-board of the truck through the window and Mohd. Umar got on the top of the truck, which was loaded with sleepers. Both these constables repeatedly asked the appellant to stop the truck. The appellant paid no heed to their request and started driving the truck at a very fast speed. Balbadar sensing danger jumped out of the truck and saved his life. The appellant deliberately drove the truck towards a ditch and at the nick of time jumped out of it. The truck fell in the ditch, as a result of which Mohd. Umar was crushed and met with his death.
3. The appellant pleaded not guilty to the charge. The trial Magistrate, the learned Sessions Judge on appeal as well as the High Court of Jammu and Kashmir in second appeal, have concurrently found the case of the prosecution to be true. They have also come to the conclusion, accepting the evidence of Balbadar, that the accused appellant deliberately drove the truck fast and took it towards a ditch, so that it might fall into the ditch and caused the death of Mohd. Umar and Balbadar. The further findings are that the appellant was wise enough to save his life by jumping out and that Balbadar, one of the constables, also luckily jumped out of the truck and saved his life, whereas Mohd. Umar, who was seated on the top of the truck, met with his death. The plea of the accused that the falling of truck in the ditch was an accident, was not accepted by any of the courts. On these findings the appellant was convicted for the offence under Section 304-A and sentenced to undergo rigorous imprisonment for two years. The appellant's conviction has been confirmed by both the Sessions Judge and the High Court.
4. Before this Court, the contention that has been taken for the first time is that the appellant should have been really tried for an offence under Section 304 RPC, and not under Section 304-A, as has been illegally done. This contention is founded really on an observation of the High Court in its judgment that the proper course for the trial court would have been to frame a charge under Section 304 RPC, against the appellant. Based upon this observation, the counsel contended that according to the High Court, the trial of the appellant and his conviction for an offence under Section 304-A are illegal and, therefore, the entire proceedings should have been quashed. We are not inclined to agree with this contention of the learned counsel. A perusal of the judgment of the High Court clearly shows that it has agreed with all the findings concurrently recorded against the appellant by the trial court as well as by the learned Sessions Judge on appeal. It is no doubt true that after rejecting the contentions urged on behalf of the appellant and confirming the conviction and sentence after agreeing with the conclusions arrived by the courts below, there is the observation by the High Court, that the proper course for the trial court would have been to frame a charge under Section 304 RPC. The High Court has not stated that the trial of the appellant for an offence under Section 304-A is illegal. On the other hand, it is to be noted that the High Court confirmed the conviction of the appellant for the offence under Section 304-A. If really the High Court, as is contended before us, was of the opinion that the trial is illegal as the appellant should have been tried not for an offence under Section 304-A but for an offence under Section 304, we would have expected the High Court to quash the proceedings. As we are of the view that the High Court has not recorded any finding that the trial conducted against the appellant is illegal for any reason, we do not think that there is any merit in the contention taken before us.
5. Learned counsel no doubt cited before us certain decisions of the High Courts wherein the legality of a conviction for an offence different from the one for which an accused was tried has been considered. We are not faced with any such problem in this case and, therefore, we do not propose to refer to those decisions. As pointed out by us earlier, in the case before us, the appellant was squarely charged for the offence under Section 304-A, RPC, and it was for that offence that he has been convicted.
6. The appeal fails and is dismissed. The appellant will surrender his bail forthwith.