Salinder Kumar vs State of Punjab

Ranjit Singh, J.—Petitioner, who is charged with an off6nceVnder Section 304, I.P.C. has filed this revision petition against the order framing the charge pleading that no offence under the section charged is made out and at the most offence u/s 304A, I.P.C. would be revealed.

The FIR in this case is lodged by one Ashok Kumar alleging that he along with his brother Hem Raj were returning in their Maruti Car bearing registration No. PB 19-0405 after attending to their business at Kapil Palace. Hem Raj was sitting in the car being driven by the complainant. In the vicinity of ITI chock, Barnala, L.P. Truck was noticed coming with a high speed. The complainant applied brakes to stop his car, but truck driver brought his truck to a halt while driving it in dangerous and negligent manner. The complainant got down from the car and exchanged words with the truck driver complaining that complainant was about to lose his life because of his rash driving. Truck driver, however, retorted back saying that he was not bothered and would drive the truck in similar manner. Nephew of the complainant was also seen coming on his Hero Honda Motor Cycle. Truck driver drove the truck while muttering something when the complainant followed him in their car. The driver while driving the truck at a high speed and in a rash and negligent manner intentionally hit the Motor Cycle driven by the nephew of the complainant. As a result, the Motor Cycle was dragged to a pit on the side of the road. The truck then hit the electric pole which broke. The complainant along with his brother came out of the car and attended to their nephew. Injured was shifted to Civil Hospital, Barnala where he breathed his last. A case was registered against the truck driver, whose identity and name was learnt and noted by the complainant at the site of accident FIR No. 82 dated 15-3-2006 for offences under Sections 304/325, I.P.C. was registered at Police Station Kotwali, Barnala. On completion of investigation, the petitioner is charged with an offence u/s 304, I.P.C. for committing culpable homicide not amounting to murder by causing death of Kapil and also for voluntarily causing grievous hurt to Indesh Kumar for an offence u/s 325, I.P.C. The petitioner has filed the present revision pleading that no offence under Sections 304 and 325, , I.P.C. would be made out against him considering the facts of the case.

Notice in this case was issued and the counsel are heard.

Mr. T.S. Sangha, the counsel appearing for the petitioner would say that this is a case of accident, where no intention or knowledge can be attributed to the petitioner for causing death of Kapil or injury to Indesh Kumar, who statedly was occupant of the truck to attract the provisions of Sections 304 and 325, I.P.C. respectively. The counsel says that the order framing the charge would call for interference as the offences under Sections 304A and 337, I.P.C. alone are revealed in this case.

State counsel, on the other hand, would urge that the facts, as revealed, would justify framing of a charge u/s 304, I.P.C. as the petitioner has acted in a manner that he can be attributed with the knowledge to cause death revealing an offence u/s 304, I.P.C.

The facts, as mentioned in the FIR, are noticed in detail above. This may not appear to be a case of only rash or negligent driving. Exact view in this regard would ultimately be formed on the basis of evidence that will be led by the prosecution during the course of trial. At this stage, the Court is not required to enter into meticulous consideration of the evidence and material and it is to see if prima-facie case is made out against the accused. Any interference by this Court while inherent or revisional jurisdiction may not be called for when material on record that too prima facie constitute an offence charged. From the statement of the complainant and other material, it cannot be said that it would only reveal an offence of rash and negligent driving. A case of reckless and utterly callous conduct, as such, may attract the offence u/s 304, I.P.C. This Court in the case titled Court on its own motion v. State of Punjab and Ors. 2005 (4) RCR 673 while considering the similar issue came to hold that:

We are, therefore, of the opinion that in cases covered by the News items and in similar matters not necessarily arising out of motor accidents which are the result of utter callousness, that come to our notice with disturbing regularity and are a matter of deep concern, a prosecution for an offence punishable only u/s 304A of the Indian Penal Code may not be in order, and the circumstances may warrant more vigorous action. We, therefore, issue a direction to Courts subordinate to this Court to ensure that in cases of extreme negligence and rashness and only where the evidence and circumstances so warrant, a charge u/s 304 or 302 of the Indian Penal Code adequate to the circumstances of the case be framed along with an alternative charge u/s 304A of the Code. The matter is disposed of accordingly.

In this case, the Court noticed the definition of culpable homicide and murder with special reference to Clause 4thly of Section 300, which provides that 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, then it would be an offence of culpable homicide. In Court on its own motion''s case (supra), the Division Bench also noticed that it would be the nature of the act that would determine the gravity and nature of the offence.

Relying upon the above noted judgment, Mr. Sangha points out that this Court, while holding that charge u/s 304, I.P.C. could be framed having regard to the facts in a particular case, has further viewed that alternative charge u/s 304A, I.P.C. may also be framed. Section 221 of the Code of Criminal Procedure provides that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will-constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed one of the said offences. Thus, the question of framing charge in the alternative can arise when there is no doubt about the facts, which can be proved but doubt is as to what offences will be constituted on those facts. Section 222, Cr.P.C. would entitle the court to convict an accused with minor offence if proved, though not charged. However, if two offences involve different elements and different question of facts, one offence cannot be said to be minor to the other. In case where a man is charged with an offence which is entirely different from the offence proved, then he cannot be convicted of it unless he is charged for it. A minor offence u/s 222, Cr. P. C. cannot be independent of the main offence or an offence carrying lesser punishment alone but it has to be a part of the main offence. Where injury is caused by shooting but there is no proof of intention to kill, then conviction u/s 307, I.P.C. was altered to Section 337, I.P.C. though there is no charge for it. See Rajendra Singh and Another Vs. State of Uttar Pradesh, . Normally such offences have to be cognate offence to the offence charged. Though Section 221(2) of Cr.P.C. may leave a discretion with the Court to convict a person of an offence which he is shown to have committed, though not charged, but still preferring of an alternative charge where different ingredients of the offence may be attracted would be necessary to avoid any prejudice to the accused in such a case. A course of preferring an alternative charge in cases, like present one has also been advocated by the Division Bench of this Court in Court on Its Own Motion''s case (supra). Mr. Sangha has also referred to the case of State of Gujarat Vs. Haidarali Kalubhai, to say that 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 u/s 299 or murder u/s 300, I.P.C. It is noticed in this case, if a person wilfully drives a motor vehicle into the midst of a crowd and thereby causes death of 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 intent to kill a person or knowledge that doing of an act was likely to cause a person''s death are ingredients of the offence of culpable homicide. It was further held in this case that when intent or knowledge as described above is the direct motivating force of the act complained of Section 304A has to make room for the graver and more serious charge of culpable homicide. Thus, it can be stated that offence u/s 304A, I.P.C. would exclude the ingredients of offence of culpable homicide or murder and if one is to be found guilty of an offence of rash or negligent act, he must be put to notice in this regard u/s 304A, I.P.C. in the alternative, when he is being charged for an offence u/s 304, I.P.C. for culpable homicide not amounting to murder. Reference, in this regard, is also made to the case of Madan Raj Bhandari Vs. State of Rajasthan, where the Hon''ble Supreme Court found that when an accused was asked to defend himself against the charge on which he was tried, then conviction for abetting to cause that offence was not proper as the accused was likely to be prejudiced by the charge on the basis of which he was tried.

In view of the factual position in this case and the law, as discussed above, this appears to be a proper case where a charge u/s 304A may need to be preferred in an alternative to the charge u/s 304, I.P.C., as has been advocated in Court on Its Own Motion''s case (supra), and also to avoid any prejudice being caused to the petitioner.

The action of the Court in framing the charge against the petitioner u/s 325, I.P.C. for having caused injury to Indesh Kumar cannot be justified having regard to the facts of this case. Indesh Kumar was occupant of the truck alongwith the petitioner and has received the injuries on account of this incident/accident where the truck after hitting the Motor Cycle, had gone and struck against the pole. No allegation of any intention or knowledge on the part of the petitioner can be made to attract the offence u/s 325, I.P.C. This Section punishes voluntarily causing grievous hurt with blunt weapon, which is not made out in the present case. The petitioner, however, cannot escape responsibility of doing rash or negligent act, which has resulted in injuries to Indesh Kumar. The offence u/s 337, I.P.C. would sound appropriately attracted in this case. A charge under said Section, as such, is revealed, rather than the one framed by the trial Court u/s 325, I.P.C.

9.1 The present revision is partly allowed. The trial Court would frame a charge u/s 304A, I.P.C. in alternative to a first charge framed u/s 304, I.P.C. The charge framed against the petitioner u/s 325, I.P.C. cannot be sustained and is accordingly set aside. However, the facts and the allegations would certainly attract an offence u/s 337, I.P.C. and, thus, a charge under the said Section be accordingly framed against the petitioner by the trial Court for having caused injury to Indesh Kumar by doing an act, which is rash and negligent.