JUDGMENT R.P. Dholaria, J. 1. The present appeal is preferred by the appellant - original accused against the judgment and order dated 31.3.2014 passed by learned Judge, District Court, Tapi at Vyara in Sessions Case No. 32 of 2013. 2. The complaint came to be lodged against the accused for the offences under sections 279, 337, 338 of Indian Penal Code and Section 134 read with section 177 of the Motor Vehicles Act. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined witnesses and also produced documentary evidences. 3.2 At the end of the trial, after recording the statement of the accused under section 313 of the Criminal Procedure Code, 1973 and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 4. Being aggrieved by the same, the appellant have preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant - original accused have mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such. 6. Mr. Sudhanshu Patel, learned advocate for appellant - original accused has taken this Court through the entire Record and Proceedings, read over the evidence of material witnesses and argued that the complainant who was eye witness and who accompanied in the cabin in which the accused was driving the truck had not at all supported the case of the prosecution and disowned his own complaint. He submitted that other witnesses have also deposed that they were travelling in the truck and therefore, driver who was plying the truck sitting in the cabin which was not within their view had not deposed as regards to the nature of driving. He submitted that other witnesses have also deposed that they were travelling in the truck and therefore, driver who was plying the truck sitting in the cabin which was not within their view had not deposed as regards to the nature of driving. He submitted that most of the witnesses have ruled out theory and allegation that the accused was driving while talking on mobile phone. According to his submission, no case is made out so as to hold the appellant guilty for the offence under section 304 either Part-I or Part-II of IPC. He further submitted that evidence of other witnesses is also not credit worthy as they have not clearly identified the present appellant accused and even their evidence is not clearly linking the accused with the crime in question and therefore, entire judgment of learned trial Court is based upon the presumptions and surmises. 7. On the other-hand, Ms. Punani, learned APP has supported the judgment rendered by learned trial Court so far as it relates to conviction of the appellant - original accused. She submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused. She submitted that finding recorded by learned trial Court is based upon the concrete and clinching evidence and therefore, punishment inflicted upon the accused does not call for any interference. 8. This Court has heard Mr. Sudhanshu Patel, learned advocate for the appellant - accused and Ms. Punani, learned APP for the State. 9. This Court has also gone through the Record and Proceedings. Perused the impugned judgment and oral as well as documentary evidence on record. 10. As per the prosecution version, on 10.4.2013 at about 16.00 hours, the accused was driving truck No. MH 15 B 1392 for transporting labourers who were working in Bardoli Sugar Factory and while the truck was proceeding upon the road leading from Songadh to Ota road, at that time, the accused lost control over driving and turned turtle and truck went into ditch of the road, due to which, 7 persons succumbed to the injuries and 17 persons sustained grievous injuries over their persons and thereby committed the offence as alleged against him. 11. 11. PW 13 - Okharam Vaghubhai Malusare-complainant was in charge of Labour Contract at the relevant time who availed the services of the labourers from the State of Maharashtra and employed them at Bardoli in the State of Gujarat. On the day of incident, he boarded the truck wherein the present appellant was driving. Though in the deposition, the witness disowned his complaint and went to the extent that he did not even know the name of the driver, but he identified the accused in the Court. 12. PW 7 - Yuvraj Vasu Patel - victim has deposed that the present appellant was driving the truck and while the truck left Songadh, at that time, truck was not in speed and it got turtled. The witness admitted that he was travelling in the back side of the truck and he could not notice, as to how the incident occurred. 13. PW 8 - Dungariyabhai Kalubhai Suryavanshi also deposed that the present appellant was solely driving the truck and truck got turtled in left side or road. 14. PW 9 - Bhamatiya Atmaram Bhavre also deposed that the present appellant was driving truck while talking on mobile phone, due to which, truck got turtled. However, in the cross examination, the witness has admitted that he did not mention before the police that while talking on mobile phone, the driver was driving the truck. 15. PW 10 - Dalkiyabhai Dahliyabhai Bhavre also deposed that the present appellant was driving truck in hectic speed. 16. PW 11 - Banshibhai Bhimrav Pawar deposed that the present appellant was driving truck and he identified the accused. 17. PW 12 - Rameshbhai Dagdubhai Sonvane deposed that the present appellant was driving the truck and he committed accident. 18. PW 21 - Girishbhai M. Patel has recorded the complaint given by Okhabhai and he thereafter carried out panchnama of scene of incident, various other inquest panchnamas, also apprehended the accused on 21.6.2013 and filed the chargesheet. In the cross examination, the witness has admitted that though it revealed during investigation that the accused was driving while talking on mobile phone, but he had not inquired for the mobile and also not collected any evidence as regards to such mobile phone. 19. In the cross examination, the witness has admitted that though it revealed during investigation that the accused was driving while talking on mobile phone, but he had not inquired for the mobile and also not collected any evidence as regards to such mobile phone. 19. On overall evaluation of the aforesaid evidence on record, it clearly transpires that while almost about 27 sugarcane labourers were travelling upon the offending truck which came to be driven by the present appellant which turned turtle, due to which, seven labourers succumbed to the injuries and for about other seventeen labourers received grievous injuries. In order to establish the death as well as grievous injuries, PW 1 to PW 6 the doctors had clearly testified and in support of their oral evidence, voluminous documentary evidence in the nature of PM report, injury certificates and papers pertaining to the treatment are placed on record. 20. On overall scanning of the aforesaid evidence on record, it can be seen that as per the prosecution case, Okharam - PW 13 was in charge as Labour Contractor and he was travelling upon the truck beside the driver - present appellant accused and he had witnessed the entire incident though he had not at all supported the case of the prosecution and other injured witnesses as narrated above were travelling on the back side of the cabin of the truck and therefore, their evidence is also not deceive. In that view of the matter, it would be very hazardous to impute knowledge on the part of the present appellant to cause culpable homicide not amounting to murder by such act of reckless negligence while driving the truck and causing death as well as grievous injuries to several persons, but necessarily when the appellant accused was carrying for about 27 persons in his truck, his negligence can surely be imputed and therefore, the provisions of section 304-A of IPC would be attracted and the offence would be punishable under the said provisions of law. 21. The evidence on record is also not clearly indicating that there was knowledge that at the place of incident while the truck would be passing, then if due care and caution would not be taken, death would likely to be caused. 21. The evidence on record is also not clearly indicating that there was knowledge that at the place of incident while the truck would be passing, then if due care and caution would not be taken, death would likely to be caused. The record and proceedings also indicates that at the place of incident, the road was hilly area and narrow road having 12 feet tar road and shoulder road 3 feet on each side and it was over the bank of canal due to which truck in question got turtled. In that view of the matter, learned trial Court has committed grave error in believing the case punishable under section 304 of IPC and wrongfully convicted the appellant accused as such which deserves to be converted into the offence under section 304-A of IPC. 22. So far as other offences are concerned, on going through the evidence of the complainant - PW 13 so far, he was clearly identified as Labour Contractor and he hired the truck of the appellant and he also got identified him and the same evidence is also emerging out from the evidence of other injured witnesses. In that view of the matter, involvement of the appellant is being clearly established for which the learned trial Court has rightly convicted the appellant under sections 279, 337, 338 of IPC read with sections 134 and 117 of the Motor Vehicles Act which calls for no interference in view of the aforesaid evidence on record. 23. On the aspect of sentence, Mr. Patel, learned advocate for the appellant has pointed out that the present appellant is also coming from lower strata of the society and is socially and economically backward as well as the victims are also belonging to the same strata of the society and while he was driving the vehicle in question, unfortunate accident occurred and some leniency be shown towards him. 24. For the reasons recorded above, the appeal succeeds partly. The impugned judgment and order dated 31.3.2014 passed by learned Judge, District Court, Tapi at Vyara in Sessions Case No. 32 of 2013 is confirmed so far as it relates to conviction under section 279, 337, 338 of IPC as well as section 134 read with section 117 of the Motor Vehicles Act. The conviction recorded under section 304 of IPC is converted into conviction under section 304-A of IPC. The conviction recorded under section 304 of IPC is converted into conviction under section 304-A of IPC. The appellant accused to undergo simple imprisonment for a period of six months in all instead of different sentences as imposed by learned trial Court. Rest of the order of learned trial Court remains unaltered. The appellant accused shall surrender before the concerned jail authority to serve out the rest of the sentence within a period of two months from today. Bail bond, if any, stands cancelled. Record & Proceedings, if any, be sent back to the trial Court concerned forthwith.