Kamta Prasad @ Pappu vs State of U.P.and another

Shashi Kant Gupta, J.—This application under section 482 Cr.P.C. has been filed by the applicant for quashing the impugned order dated 14.7.2008 passed by Additional Session Judge (Court. No. 5) Banda, framing charges against the applicant under section 304/324 I.P.C. In Session Trial No. 106 of 2008 State of U.P. v. Kamta Prasad @ Pappu.

The brief facts in nut shell are as follows:

First information report dated 27.1.2008 had been lodged against the applicant alleging that while the Tilak Ceremony of Shiromani Kahar was going on, one Rajaram and Kamta Prasad @ Pappu (applicant) were also present and the applicant was under the influence of liquor, opened fire negligently by a Country made Pistol, which hit Rajaram and Kamta Prasad standing nearby Rajaram ultimately succumbed to his injuries and the driver Kamta Prasad was admitted in the District Hospital. The registration of first information report was followed by a chargesheet and the Investigating Officer took statement of various witnesses. Learned Magistrate after taking cognizance of the matter committed the case to session. The Additional District and Sessions Judge, Banda by order dated 14.7.2008 has framed charges under section 304/324 IPC against the applicant and proceeded for trial. Hence, the present application.

It is submitted by learned Counsel for the applicant that the impugned order dated 14.7.2008 framing the charges under section, 304324 IPC are totally illegal, arbitrary, unjust and against the material evidence on record and has been framed without proper appreciation of material on record.

It is further contended that the first information report, statement of informant, chargesheet and other material on record does not disclose any commission of offence under section 304 IPC.

On the other hand learned A.G.A. has supported the impugned order passed by the Court below and has submitted that the order is just and in accordance with law. The ingredients of section 304 are fully applicable in the present case.

Heard the Counsel for the applicant and the learned A.G.A. for opposite parties.

Before deciding the rival contentions raised by the Counsel for the parties it will be useful to refer to the provisions of section 304A and 299, IPC which runs as under:

"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." "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."

The definition of the aforesaid section 304A I.P.C. makes it clear that there should not be any element of any motive or intention and the rash or negligent act should not amount to culpable homicide.

In the instant case there is no allegation that the fire was opened with the intention of causing death or causing such bodily injury as was likely to cause death.

Learned Counsel for the applicant in this connection cited the case of Mrs. Meera Puri v. The State of Nagaland 1971 Crl. LJ. 539 In this case the accused was alleged to have opened fire by means of a rifle with the knowledge that the children and others were around. The bullet hit a child and killed him. On these facts accused was held not guilty of culpable homicide but was found guilty under section 304A IPC.

In the present case the persons injured during the Tilak ceremony were standing near by and the facts of the present case are similar to the facts of Mrs. Meera Pun''s case (supra).

None of the materials available on record suggest that the applicant opened fire with the intention of causing injury to any one in Tilak Ceremony. It appears to be an accidental firing causing death. The definition of the 304A IPC makes it clear that there should not be any intention to cause death. Prima facie there is no allegation either in the FIR or in the statement under section 161 Cr.P.C. that fire was opened with the intention of causing death or likely to cause death. The facts gathered during the course of investigation went consistent to attract the provisions of section 304A, I.P.C as is evident from the material on record. Therefore, there is no intention of commission of crime covered under section 299 IPC and it could best be offence punishable under section 304A I.P.C. Though the tamancha was unlicensed and it would merely make an offence under the provisions of Arms Act. Whether, tamancha was licensed or not will not affect the merit of the case.

Learned Additional District Judge, has erred, in holding that from the alleged facts, case under section 304 IPC is made out and the Court below committed manifest error of law in framing charges under section 304 I.P.C.

In view of the above this application is allowed and the order dated 14.7.2008 passed by Additional Session Judge (Court No. 5) is set aside. The learned Additional District Judge will frame afresh charges in the light of the aforesaid observations. The applicant shall appear before learned Additional District Judge on the date fixed.