PETITIONER:
STATE OF GUJARAT A
Vs.
RESPONDENT:
HAIDARALI KALUBHAI
DATE OF JUDGMENT03/02/1976
BENCH:
GOSWAMI, P.K.
BENCH:
GOSWAMI, P.K.
SHINGAL, P.N.
CITATION:
1976 AIR 1012 1976 SCR (3) 303
1976 SCC (1) 889
ACT:
Indian Penal Code-Section 304A-Ingredients of-Loss of
control over the speeding truck causing the fatal injury
falls under s. 304A.
HEADNOTE:
On August 23, 1969, the respondent accused came in a
tractor and stopped it on the highway. Seeing the parked
truck GTF 904 which he used to drive previously, the accused
used the key of his tractor to start the same and drove it
with the head lights on in full speed. The conductor of the
truck owner was also in the tractor at that time. The
tractor while being driven by the field and while he was
trying to turn towards the kutcha road hit against the cot
in which the village Sarpanch who was resting on it and
taking with three policemen. The policemen jumped from the
cot and sustained injuries, while the Sarpanch who was
thrown away by the impact of the tractor to a distance of
about ten feet from the cot, had grievous injuries to which
he succumbed later. Since there was enmity between the
deceased and the accused over the Panchayat elections, the
prosecution put up a case of deliberate and willful driving
of the vehicle towards the cot with the intention of causing
death of the deceased Sarpanch. The Sessions Judge convicted
the accused (i) under s. 304 Part IT, I.P.C. for causing the
death of the Sarpanch and (ii) under s. 326 and 323, I.P.C.
for causing injuries to the two other persons and sentenced
him for rigorous imprisonment for seven years and two years
respectively for the said offences. On appeal to the High
Court the conviction was altered to one under s. 304A only
and the respondent was sentenced to rigorous imprisonment
for 18 months and to a fine of Rs. 500/-.
Dismissing the State's appeal by special leave, the
Court,
^
HELD . (1) 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 s. 299,
I.P.C. or murder under s. 300 I.P.C. Each case will depend
on the particular facts established against the accused.
[305A-B]
(2) Section 304A, by its own definition totally
excludes the ingredients of s. 299 or s. 300, I.P.C. Doing
an act with the intent to kill a person or knowledge that
doing of an act is likely to cause a person's death are
ingredients of the offence of culpable homicide. When intent
or knowledge is the direct motivating force of the act
complained of, s. 304A has to make room for the graver and
more serious charge of culpable homicide. [306 GH, 307A]
(3) In the instant case, the tangential track of the
speeding truck coming in contact with the corner of the
steel cot throwing it over the wooden cot and thereby
throwing tho deceased out of it resulting in fatal injuries,
would not reveal the accused's intention or any deliberate
act with the requisite knowledge for an offence of culpable
homicide. The facts and circumstances disclosed in this case
fit in more reasonably with the theory of loss of control by
the accused of the vehicle in high speed trying to take a
turn for the kutcha road. The case falls under s. 304A,
I.P.C. and not under 3. 304 Part 11, I.P.C. [307-A-C]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No 188
of 1971.
Appeal by special leave from the judgment and order
dated the 29-9-1970 of the Gujarat High Court in Criminal
Appeal No. 410
304
D. Mookherjee, S. K. Dholakia and M. N. Shroff, for the
appellant.
K. J. Shethna and Vimal Dave and Miss Kailash Mehta,
for the respondent.
The Judgment of the Court was delivered by
GOSWAMl, J.-The accused Haidarali Kalubhai was
convicted by the Sessions Judge, Mehsana, under section 304
Part II, Indian Penal Code, and was sentenced to rigorous
imprisonment for seven years for causing death of Mahomadali
Kasamali. He was also convicted under sections 326 and 323
I.P.C. and sentenced to rigorous imprisonment for two years
and to three months respectively in connection with injuries
to two other persons. On appeal to the High Court conviction
was altered to one under section 304 A.I.P.C. Only and the
accused was sentenced to rigorous imprisonment for eighteen
months and to a fine of Rs. 500/-, in default rigorous
imprisonment for six months.
Briefly the facts are as Follows:-
It was usual for the deceased Mahomadali Kasamali, who
was the sarpanch of village Nandasan, to spend some hours of
the night from 8.00 P.M. to 11.P.M. near the Hotel Shanker
Vijay which is situated by the side of the highway from
Mehsana to Ahmedabad. There is a big open space in front of
the hotel towards the north and a kutcha road branches off
from the highway towards Dangarwa. This kutcha road is
almost in the centre of the open space in front of the hotel
measuring about 80 feet. It is said that the portion
immediately in front of the hotel is about two feet higher
in elevation from the kutcha road. On August 23, 1969, the
accused came in a tractor and stopped the same on the
highway. He saw truck No. G.T.F. 904 which Was parked
opposite to the aforesaid hotel of Vasudev (P.W. 7). The
owner of the truck had gone to the village leaving his
conductor Usman Imamali (P.W. 11) in the truck. It is said
that the accused used to drive this truck earlier with
permission of the truck-owner. This time he used the key of
his tractor to start the truck and he drove the same by the
open field in front of the hotel. He drove the truck with
the head lights on in full speed straight on the steel cot
on which The deceased was resting with the result that the
truck dashed against the cot and the deceased was thrown
away to a distance of about ten feet from the cot. Head
Constable Revajit (PW 3) was sitting on the same cot with
the deceased and he was also thrown away. There was another
wooden cot nearby where Constable Dalpat Singh (PW 4) and
Vavdinmiya (PW 5) were sitting. The Head Constable with the
other Constable came to meet the Sarpanch in connection with
the investigation of a certain case. Since there was enmity
between the accused and the deceased on account of Panchayat
elections the prosecution case is that the accused willfully
and deliberately drove the vehicle towards the cot with the
intention of causing death to the A deceased Sarpanch. The
accused was originally charged under section 302 IPC and
under section 326 and 323 IPC with the result mentioned
above. Hence this appeal by the State by special leave
against the judgment of the High Court.
The question that arises for consideration is whether
the facts that `are established against the accused fulfil
the ingredients of section 304
305
Part II as submitted by Mr. Debabrata Mukherjee on behalf of
the State. According to the learned counsel this is a clear
case under section 304 Part II and conviction under section
304A is unsustainable.
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 person, it will not be a case 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.
The prosecution in this case wanted to establish a
motive for committing the offence against the Sarpanch. It
was sought to be established that there was enmity between
the Sarpanch and the accused ` and his relations on account
of Panchayat elections. Some evidence was led in order to
prove that the accused and his relations were gunning
against the Sarpanch for some time after the latter’s
election as Sarpanch. Even an anonymous letter was received
by the Sarpanch threatening his life which was handed over
to the police by the Sarpanch. Both the Sessions Judge as
well as the High Court did not accept the evidence
appertaining to motive. Mr. Mukherjee, therefore, rightly
and very fairly did not address us with regard to that part
of the case. Even so, the learned counsel submits that the
act per se and the manner in which the vehicle was driven
clearly brought the case under section 304 Part II IPC.
The following facts are established. The accused drove
the truck at great speed with lights on. He had the
conductor with him in the truck. Some time before driving
the truck the accused had seen the Constables talking with
the Sarpanch at the spot in question. There is no evidence
that the accused had a licence to drive the truck. It,
however appears from it. 70, which is a complaint in
criminal case No. 160 of 1969 dated January 17, 1969 that
the accused “had no licence…. while driving his truck No.
GTF 704.” While the two Constables jumped from the cot and
escaped the deceased could not do so in spite of being
alerted by the Head Constable as he was in a Lying posture
on the cot. It appears from the map of the scene Ext. 9 that
the truck while being driven by the field was trying to turn
towards the kutcha road at a point near the cot shown in the
map. This would go to show that the accused was unable to
control the vehicle in high speed while taking a turn to get
into the kutcha road from the open field and in this process
hit the cot throwing the deceased out of the cot by the
impact resulting in injuries which ultimately led to his
death. Even the Constables, who jumped from the cot,
received injuries. There was no direct impact of the persons
with the vehicle in speed.
The accused in his statement under section 342,
Criminal Procedure Code, stated as follows:-
“I took the truck in reverse first and as there were
other trucks lying round about, I took out my truck
from the available way.
306
The accilator (sic) stuck down and hence the truck went
in full speed and did not remain in control. One truck
was coming from opposite side with full light. While
driving with (sic) this way, I heard some noise, and
the conductor Usman told me that the truck had struck
with something then I heard some shouts and realised
that some persons were injured but I did not stop the
truck through fear of assault .. truck through fear of
assault ….. I presented myself at the Police
Station”.
Now this version is supported by Usman (PW 11) who,
however, has been declared hostile by the prosecution. He
was cross-examined by the prosecution in order to show that
he made a wrong statement in the examination-in-chief when
he stated that the accused drove the truck with the key of
the truck whereas he had stated before the police that the
accused came on his tractor and started the truck with his
key. He was also cross-examined about a truck coming from
the opposite side with full light that he had not stated to
the police to that effect.
We do not think that the omission to mention before the
police about another truck coming from the opposite
direction can be a contradiction within the meaning of
section 162, Criminal Procedure Code. We also do not give
much importance as to whether the accused drove the truck
with his key or with the key of the tractor. That has not
much relevance in view of the fact that the accused admitted
to have driven the truck. Besides, it is admitted by the
prosecution witnesses (PWs’ 2 and 6) that the conductor (PW
11 ) was in the truck when the accused drove the same. PW11
is, therefore, a natural witness and we do not find any
reason to disbelieve him when he stated that a truck was
coming from the opposite direction with full lights on.
Besides, the owner of the truck having not found the truck
in the place where he had parked had already telephoned to
the Police Station about someone taking away the truck.
PW11, who is an employee of the truck owner, was, therefore,
not even obliged to speak in favour of the accused. The
facts disclosed in the prosecution evidence, therefore, do
not make out a case of any wilful or deliberate act on the
part of the accused in order to cause the death of the
Sarpanch by driving the truck in the way he did. Besides,
the presence of the Head Constable and another Constable
with the deceased whom the accused had himself seen prior to
his driving the truck would run counter to a theory of
wilful and deliberate act on the part of the accused to
cause the death not only of the Sarpanch but necessarily
also of the Constables.
Section 304A by its own definition totally excludes the
ingredients of section 299 or section 300 IPC. Doing an act
with the 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. When intent or
knowledge as described above is the direct motivating force
of the act complained of, section 304 A has to make room for
the graver
307
and more serious charge of culpable homicide. Does this
happen in A this case ?
The tangential track of the speeding truck coming in
contact with the corner of the steel cot throwing it over
the wooden cot and thereby throwing the deceased out of it
resulting in fatal injuries would not reveal the accused
intention or any deliberate act with the requisite knowledge
for an offence of culpable homicide. The facts and
circumstances disclosed in this case fit in more reasonably
with the theory of loss of control by the accused of the
vehicle in high speed trying to take a turn for the kutcha
road.
There is, therefore, no error committed by the High
Court in holding that the falls under section 304A IPC and
not under 304 Part II IPC. The appeal is accordingly
dismissed. C
S.R. Appeal dismissed.
308