Madhya Pradesh High Court
Ravi Singh vs The State Of Madhya Pradesh on 6 September, 2019
Equivalent citations: AIRONLINE 2019 MP 973
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
Cr.R. No.4290/2018
(1)
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
JUSTICE S.A.DHARMADHIKARI
Cr.R. No.4290/2018
Ravi Singh
Vs.
State of M.P.
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Shri P.S.Bhadauria, Advocate for the petitioner.
Shri Purushottam Pandey, Government Advocate for
the respondent-State.
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ORDER
6/9/2019 This revision petition, under sections 397 read with 401 of the Cr.P.C., is directed against the order dated 6/8/2018 passed by III Additional Sessions Judge, Bhind in S.T. No.118/18, whereby charge under section 304, IPC has been framed against the petitioner.
2. The facts, in nutshell, are that on 23/2/18, at about 17.15 hours, petitioner was driving I-20 car bearing registration no. MP-07-TC-0015 in a rash and negligent manner and as the Car reached near the house of complainant Dhan Singh Jatav , it dashed against a Hero Honda Motorcycle parked there, as well as, three year old nephew of complainant who was playing there namely Honey Singh, which resulted into his death. The petitioner after alighting from the Car ran away from the spot.
3. FIR was lodged and after completion of investigation, Cr.R. No.4290/2018 (2) charge-sheet was filed. Charge was framed in respect of offence punishable under section 304, IPC.
4. Questioning the correctness of the charge, the instant revision petition has been filed.
5. Learned counsel for the petitioner contends that section 304, IPC has no application to the fact situation in hand. The applicant cannot be held guilty under section 304, IPC as the case does not fall in any of the exceptions as enumerated in section 300, IPC. The petitioner had no intention to kill the nephew of the complainant. It is due to sheer rash and negligent act that the incident has occurred. Therefore, section 304, IPC has no application and at the most it may be a case under section 304-A of IPC.
6. On the other hand, learned Public Prosecutor submitted that the trial Court has rightly framed the charge under section 304, IPC, inasmuch as the petitioner was well aware and had the knowledge that the act done by him, in all probability, will cause death. The petitioner drove the vehicle in rash and negligent manner without proper care and caution which resulted into death of nephew of complainant.
7. Heard, learned counsel for the parties.
8. Before dilating further, it is worthwhile to refer to the provisions of sections 304-A, 299 and 300 of IPC. The same read thus:-
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 Cr.R. No.4290/2018 (3) extend to two years, or with fine, or with both.
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.
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--
(Secondly) --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 to whom the harm is caused, or-- (Thirdly) --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be in- flicted is sufficient in the ordinary course of nature to cause death, or--
(Fourthly) --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:--
(First) --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.
Exception 2.--Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of 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.
Cr.R. No.4290/2018(4)
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 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.
Exception 5.--Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
9. Section 304-A of IPC applies to cases where there is no intention to cause death and no knowledge that the act done, in all probability, would cause death. The provision is attracted to offences outside the range of sections 299 and 300 of IPC. Section 304-A, IPC applies to such acts which are rash and negligent and are directly the cause of death of some person. Negligence and rashness are essential elements under section 304A, IPC. The Apex Court in the case of Prabhakaran Vs. State of Kerala ((2007)14 SCC 269), has held as under:-
"Section 304A speaks of causing death by negligence. This section applies to rash and negligence acts and does not apply to cases where death has been voluntarily caused. This section obviously does not apply to cases where there is an intention to cause death or knowledge that the act will in all probability cause death. It only applies to cases in which without any such intention or knowledge death is caused by what is described as a rash and negligent act"
(Emphasis supplied) Cr.R. No.4290/2018 (5)
10. 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 but rather punishable by reason of death having been caused, due to rash or negligent act. Section 304-A thus applies where there is neither "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.
11. Again, in the case of Naresh Giri v. State of M.P. [(2008) 1 SCC 791], where a train had hit a bus being driven by the appellant at the railway crossing and the bus was badly damaged and two persons died, this Court, while altering the charges from Section 302 IPC to Section 304-A IPC, observed :
"7. Section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A.
8. Section 304-A carves out a specific offence where Cr.R. No.4290/2018 (6) death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When intent or knowledge is the direct motivating force of the act,Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence; a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practise such rashness or negligence which may cause the death of other. The death so caused is not the determining factor.
(Emphasis supplied)
12. From the prosecution story, as discussed above, it can safely be deduced that the appellant did not have the intention to cause death of the deceased. So far as having "knowledge" that the manner in which the vehicle was being driven would in all probability result in death of any person is concerned, the same can not be reasonably inferred from the facts and circumstances of the case. The incident is said to have occurred at about 5.15 pm on a street in front of house of complainant, Cr.R. No.4290/2018 (7) where his three year old nephew was playing. When a toddler is allowed to play on a street by his parents, it can be presumed that it must not have been a busy street and, therefore, the appellant cannot be said to have cruised in a busy street at a dangerously high speed so as to attribute the "knowledge" that in all probability the vehicle would dash against someone and kill him. On the contrary, it can easily be comprehended that three year old children are so fragile that even if they dash against a vehicle driven at a moderate speed or slightly above it, they may succumb to the injuries sustained in the accident. Though this Court has full sympathy with the kith and kin of the young child, yet, appellant's culpability for the offence of culpable homicide is not discernible from the facts and circumstances of the case.
13. However, the act of the appellant squarely falls within the ambit of section 304A of the IPC which deals with deaths caused due to rash or negligent acts. 'Culpable rashness' is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). 'Culpable negligence' is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the Cr.R. No.4290/2018 (8) consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence.
14. In view of the aforesaid, this Court is of the considered view that the trial Court has erred in framing charge under section 304 of the IPC. At the most offence under section 304- A of the IPC is made out. The impugned order framing charge under section 304 of the IPC is, accordingly, set aside. Trial Court is directed to frame the charge afresh and proceed with the trial in accordance with law.
The revision petition stands allowed.
(S.A.Dharmadhikari) Judge (and) ANAND SHRIVASTAV A 2019.09.06 18:22:10 +05'30'