Delhi District Court
State vs . Naveen Jain on 20 January, 2010
:1:
THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - 1,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI.
SC No. 87/2009
FIR No.134/2009
PS : KESHAV PURAM
U/s. 279/338/304/308 IPC
STATE
VERSUS
NAVEEN JAIN
ORDER ON CHARGE
1.The charge sheet discloses fact that Smt. Sukhdevi gave statement to the police that on 27-28/5/09 that due to hot weather she along with her husband Lalaram and son Guddu aged 12 years were sleeping on Subzi Mandi Road, Kanhaiya Nagar which goes towards Ashok Vihar at the pavement. There were other jhuggi dewellers namely Deepak, Chanderpal, Harender and Jitender were also sleeping on the pavement. The reason for sleeping on pavement was that during night the weather was very hot and mosquitoes were bitting due to which she got up in the STATE VS. NAVEEN JAIN FIR NO. 134/2009 :2: midnight and using the hand fan. Suddenly, one Maruti car of silver colour came from the side of Ashok Vihar road, road which was driven by the driver at very high speed in dangerous manner and driven on the body of the persons who were sleeping on the pavement. Thereafter, car dragged for about twenty steps and struck against angle iron. On seeing this accident, crowd gathered there and driver was taken out from the car. The driver was under the influence of liquor. He was given beatings by the public. On inquiry, the name of driver came to know as Naveen Jain son of Raj Kumar Jain, Maruti Car was having registration no. DL 8C K 9754.
2. On this complaint, police registered case U/s 279/304 IPC. Accused Naveen was arrested and his car was seized. His driving licence was seized. The Crime Team visited the spot and prepared the Crime Team Report. In the accident, Guddu aged 12, Deepak aged 8 years and Chanderpal aged 50 years died. Lalaram and Harender received grevious injuries. After investigation, police filed challan for trial of offence U/s 279/338/304/308 IPC.
STATE VS. NAVEEN JAIN FIR NO. 134/2009 :3:
3. I have heard learned APP on behalf of State and Sh. Veer Prakash with Sh. Pankaj Jain, counsel for the accused.
4. The most crucial aspect in the present fact and circumstances of the case is that whether police charged the accused rightly for the commission of offence under Section 279/308/304 IPC or whether Section 279/304A/338 IPC would be attracted.
5. It would be essential to reproduce Sections 299/300/304A which 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.
Explanation 1. - A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
STATE VS. NAVEEN JAIN FIR NO. 134/2009 :4: Explanation 2. - Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented.
Explanation 3. - The causing of the death of a child in the mother's womb is not homicide. Bit it may amount to culpable homicide to cause the death of a living child, if any part of that child may not have breathed or been completely born.
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 towhom the harm is caused, or 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 STATE VS. NAVEEN JAIN FIR NO. 134/2009 :5: 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.
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 provisos -
Firstly - 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 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.
STATE VS. NAVEEN JAIN FIR NO. 134/2009 :6: Exception 2. - Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence or person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3. - Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4. - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation. - It is immaterial in such cases which party offers the provocation or commits the first assault.
STATE VS. NAVEEN JAIN FIR NO. 134/2009 :7: Exception 5. - Culpable homicide is not murder when the person who sedeath is caused,being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
304A. 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."
6. The provision of Section 304-A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. This provision is thus directed at offences outside the range of Sections 299 and 300 IPC and obviously contemplates those cases where neither intention or knowledge enters. On the other hand, Section 299 of IPC deals with those cases in which death of victim is caused by the accused with the intention to cause death or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that the act is likely to cause death. In the scheme of Indian Penal Code, culpable homicide is the genus and murder is its STATE VS. NAVEEN JAIN FIR NO. 134/2009 :8: species. All murders are culpable homicide but not vice- versa. The Indian Penal Code practically recognizes three degrees of culpable homicide; the first may be termed as culpable homicide of the first degree; this is the gravest form of culpable homicide which is defined under Section 300 as "murder".
7. The Second may be termed as culpable homicide of the second degree, which is punishable under Ist Part of Section 304 and then there is culpable homicide of the third degree which can be termed as lowest type of "culpable homicide" and punishment for this is provided under the IInd Part of Section 304. It needs to be noticed that there is a firm distinction between the classes of cases contemplated by two parts of Section 304 IPC. The Ist Part of Section 304 postulates a more serious class of offences where the court can infer that there is clear intention to cause death, whereas, the IInd Part of Section 304 contemplates a slightly lesser class of offence where there is a "knowledge" that the act is likely to cause death, but the "intention" is completely missing.
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8. Thus, in Part-I of Section 304 the mental element or mens rea is "intention" whereas, in Part-II of Section 304 the mens rea is "knowledge". In a case where the accused could have known that the death was likely to be caused but he did not intend to cause death, it was held that the accused could only be convicted under the third clause of Section 299, i.e., for "culpable homicide" punishable in Part-II of Section 304 but neither under Section 302 nor Part-I of Section 304 IPC. "Knowledge" thus cannot be equated with an "intention" and as compared to "knowledge", "intention" requires something more than mere foresight of the consequences, mainly the purposeful doing of a thing to achieve a particular end. In a case where there is no evidence to show any "knowledge" of the likelihood of causing death on the part of the accused, the IInd part of Section 304 IPC will be apply.
206. For attracting Section 304-A, the first requirement is to rule out "culpable homicide". The Section applies to acts which are not crime in themselves bur rather punishable by reason of death having been caused, due to rash or negligent act. Section 304-A thus applies where there is neither STATE VS. NAVEEN JAIN FIR NO. 134/2009 :10: "intention" to cause death, nor "knowledge" that the act done in all probability would cause death. When the "intention" or "knowledge" is the direct motivation of an act complained of, Section 304-A has to make room for the graver and more serious charge of "culpable homicide". The words used in Section 304-A "not amounting to culpable homicide" in the Section are very significant and therefore, it must be understood that the cases of intentional or knowingly inflicted acts of crime, directly and willfully, are excluded.
9. In the light of above discussion, it follows that if an act is done with knowledge but without intention, then it would fall under Section 304 Part-II. The act done with knowledge and result being of the kind where the doer had reason to believe that the act would result into an offence, the knowledge would be attributable to the offender. 'Knowledge' is an expression of wide implication and is proficient of varied interpretation in the context of the facts and circumstances of a given case. While doing an act, STATE VS. NAVEEN JAIN FIR NO. 134/2009 :11: knowledge of consequence would be attributable to the accused, if it falls within the normal behaviour of the person of common prudence.
10. It would be worthwhile to have a glance on the meaning of word "knowledge". The Concise Oxford English Dictionary; 10th Edition published by Oxford University Press gives meaning of "knowledge" as information and skills acquired through experience or education; the sum of what is known; true justified belief as opposed to opinion; awareness or familiarity gained by experience. The Chambers Dictionary; Ist Edition published by Chambers Harrap Publishers Ltd. defines 'knowledge' as that which is known; information; instruction; enlightenment; learning; practical skill; assured belief; acquaintance; cognizance. The Black's Law Dictionary, 6th Edition explains the word 'knowledge' in different contexts and it would be helpful to have a glance at them with an object to find most appropriate meaning which can be given to satisfy the requirements of Section 304 Part (II) of IPC.
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11. The Section 304-A IPC mention about "rash" and "negligence", it is clear that even if any rash act is done precipitately with the knowledge that the illegal consequences may follow but with a hope that they will not, still the rashness lies because the offender in such a case runs the risk of doing an act with recklessness or indifference as to its consequences. As would be seen from the above discussion, "negligence" or "rashness" are the essential ingredients of an offence under Section 304 A IPC. Culpable negligence lies in the failure to exercise reasonable and proper care and it will depend upon the facts of each case as to what extent there is culpable neglect or failure to exercise reasonable care a proper exercise of which could have averted the evil consequences. But in criminal rashness, the person is conscious of the fact that he is undertaking the risk of committing a dangerous or hazardous act, but at the same time, he is hopeful that without causing any harm to any person, he will accomplish or undertake such an act. Thus, the element of consciousness is missing in the case of negligence while consciousness is an important ingredient of STATE VS. NAVEEN JAIN FIR NO. 134/2009 :13: rashness.
12. The Apex Court in the case of State of Gujrat Vs. Haidarali Kalubhai, 1976 (1) SCC 889 observed that the impression that every case of accident, if resulting into death would attract criminal liability only under Section 304-A IPC can be dispelled. The observations of the Apex Court are reproduced hereunder :-
"Section 304A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 IPC or murder under Section 300 IPC. If a person willfully drives a motor vehicle into the midst of a crowd and thereby causes death to some persons, it will not be a cause of mere rash and negligent driving and the act will amount to culpable homicide. Each case will, therefore, depend upon the particular facts established against the accused."
13. According to State of Gujrat Vs. Haidarali Kalubhai (supra), if situation so warrants reckless may also covered under Section 300 (4) IPC or it may fall under Part-III of Section 299 IPC and if a particular case does not fall in STATE VS. NAVEEN JAIN FIR NO. 134/2009 :14: either of two situations, then the Court will consider the question as to whether the offence under Section 304-A is made out or not.
14. Our own Hon'ble High Court in the case of Sanjeev Nanda and Ors. Vs. State, 2009 V AD (DELHI) 785 also made observation (obitor dicta), which is reproduced hereunder :-
Para No. 230 - "Merely because an automotive car or scooter is involved would not by itself take the offence outside the scope of Section 304 Part (II) of IPC. The Court would have to examine this in the light of the evidence led by the prosecution, defence, if any, the links provided by the accused himself in his statement under Section 313 and the attendant proven circumstances of the case."
15. In the case of Sanjeev Nanda and Ors. Vs. State (supra), our own Hon'ble High Court considered all the precedents discussed in detail and also applied the principle of law and made the observations reproduced hereinabove.
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16. Now applying the principle of law in the present facts and circumstances of the case bearing in mind that at the stage of charge, Court has to apply mind but see whether prima facie case is made out against the accused or not. In the present facts and circumstances of the case, the accused Naveen Jain on 28.05.2009 at about 1.15 AM in the midnight was driving the Maruti car bearing No. DL 8CK 9754 on a road in front of jhuggis, Kanhaiya Nagar, Subzi Mandi, Tri Nagar. His mental faculties were influenced by the great quantity of liquor, which was consumed by him prior to the driving of the vehicle. In this situation, a prudent man, if drives any vehicle, it has to be in his knowledge that in these circumstances, there bound to be an offence on th road, which may result injuries or death of the person. However in the present case, in the midnight when the traffic was very low, circumstance suggest that he was able to distinguish between road and pavement. Hence, degree of knowledge of the accused is higher than the gross recklessness and this kind of reckless driving is covered by Part-II of Section 304 IPC.
STATE VS. NAVEEN JAIN FIR NO. 134/2009 :16:
17. Hence on the basis of above observations and discussions, the accused had knowledge of his act when he was driving the vehicle in a highly drunkard condition and in these circumstances, there is every likelihood of causing death and injuries, which ultimately resulted into the death of three persons and injuries to three other persons, who were sleeping on the pavement. Hence, prima facie a case under Section 304/308 IPC is made out against accused Naveen Jain.
(SANJAY KUMAR) Announced in the open court Additional Sessions Judge-01 today 20.01.2010. North West, Rohini Courts, Delhi.
STATE VS. NAVEEN JAIN FIR NO. 134/2009