{"id":113238,"date":"1976-02-03T00:00:00","date_gmt":"1976-02-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-gujarat-a-vs-haidarali-kalubhai-on-3-february-1976"},"modified":"2018-07-16T04:24:19","modified_gmt":"2018-07-15T22:54:19","slug":"state-of-gujarat-a-vs-haidarali-kalubhai-on-3-february-1976","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-gujarat-a-vs-haidarali-kalubhai-on-3-february-1976","title":{"rendered":"State Of Gujarat A vs Haidarali Kalubhai on 3 February, 1976"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Gujarat A vs Haidarali Kalubhai on 3 February, 1976<\/div>\n
Equivalent citations: 1976 AIR 1012, \t\t 1976 SCR (3) 303<\/div>\n
Author: P Goswami<\/div>\n
Bench: Goswami, P.K.<\/div>\n
           PETITIONER:\nSTATE OF GUJARAT A\n\n\tVs.\n\nRESPONDENT:\nHAIDARALI KALUBHAI\n\nDATE OF JUDGMENT03\/02\/1976\n\nBENCH:\nGOSWAMI, P.K.\nBENCH:\nGOSWAMI, P.K.\nSHINGAL, P.N.\n\nCITATION:\n 1976 AIR 1012\t\t  1976 SCR  (3) 303\n 1976 SCC  (1) 889\n\n\nACT:\nIndian\tPenal\tCode-Section  304A-Ingredients\t of-Loss  of\ncontrol over  the speeding  truck causing  the fatal  injury\nfalls under s. 304A.\n\n\n\nHEADNOTE:\n     On August\t23, 1969,  the respondent  accused came in a\ntractor and  stopped it\t on the\t highway. Seeing  the parked\ntruck GTF 904 which he used to drive previously, the accused\nused the  key of  his tractor to start the same and drove it\nwith the  head lights on in full speed. The conductor of the\ntruck owner  was also  in the  tractor\tat  that  time.\t The\ntractor while  being driven  by the  field and\twhile he was\ntrying to  turn towards\t the kutcha road hit against the cot\nin which  the village  Sarpanch who  was resting  on it\t and\ntaking with  three policemen.  The policemen jumped from the\ncot and\t sustained injuries,  while  the  Sarpanch  who\t was\nthrown away  by the  impact of\tthe tractor to a distance of\nabout ten  feet from the cot, had grievous injuries to which\nhe succumbed  later. Since  there  was\tenmity\tbetween\t the\ndeceased and  the accused  over the Panchayat elections, the\nprosecution put\t up a case of deliberate and willful driving\nof the vehicle towards the cot with the intention of causing\ndeath of the deceased Sarpanch. The Sessions Judge convicted\nthe accused (i) under s. 304 Part IT, I.P.C. for causing the\ndeath of  the Sarpanch and (ii) under s. 326 and 323, I.P.C.\nfor causing  injuries to the two other persons and sentenced\nhim for\t rigorous imprisonment for seven years and two years\nrespectively for  the said  offences. On  appeal to the High\nCourt the  conviction was  altered to one under s. 304A only\nand the\t respondent was\t sentenced to  rigorous imprisonment\nfor 18 months and to a fine of Rs. 500\/-.\n     Dismissing the  State's appeal  by special\t leave,\t the\nCourt,\n^\n     HELD .  (1) Section  304A carves out a specific offence\nwhere death  is caused\tby doing a rash or negligent act and\nthat act  does not amount to culpable homicide under s. 299,\nI.P.C. or  murder under\t s. 300 I.P.C. Each case will depend\non the\tparticular facts  established against  the  accused.\n[305A-B]\n     (2)  Section   304A,  by  its  own\t definition  totally\nexcludes the  ingredients of  s. 299 or s. 300, I.P.C. Doing\nan act\twith the  intent to  kill a person or knowledge that\ndoing of  an act  is likely  to cause  a person's  death are\ningredients of the offence of culpable homicide. When intent\nor knowledge  is the  direct motivating\t force\tof  the\t act\ncomplained of,\ts. 304A\t has to make room for the graver and\nmore serious charge of culpable homicide. [306 GH, 307A]\n     (3) In  the instant  case, the  tangential track of the\nspeeding truck\tcoming in  contact with\t the corner  of\t the\nsteel cot  throwing it\tover  the  wooden  cot\tand  thereby\nthrowing tho deceased out of it resulting in fatal injuries,\nwould not  reveal the  accused's intention or any deliberate\nact with  the requisite knowledge for an offence of culpable\nhomicide. The facts and circumstances disclosed in this case\nfit in more reasonably with the theory of loss of control by\nthe accused  of the  vehicle in\t high speed trying to take a\nturn for  the kutcha  road. The\t case falls  under s.  304A,\nI.P.C. and not under 3. 304 Part 11, I.P.C. [307-A-C]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No 188
\nof 1971.\n<\/p>\n
     Appeal by\tspecial leave  from the\t judgment and  order
\ndated the  29-9-1970 of\t the Gujarat  High Court in Criminal
\nAppeal No. 410<\/span>
\n304<\/span>
\n     D. Mookherjee, S. K. Dholakia and M. N. Shroff, for the
\nappellant.\n<\/p>\n
     K. J.  Shethna and\t Vimal Dave  and Miss Kailash Mehta,
\nfor the respondent.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     GOSWAMl,  J.-The\taccused\t  Haidarali   Kalubhai\t was
\nconvicted by  the Sessions Judge, Mehsana, under section 304
\nPart II,  Indian Penal\tCode, and  was sentenced to rigorous
\nimprisonment for seven years for causing death of Mahomadali
\nKasamali. He  was also\tconvicted under sections 326 and 323
\nI.P.C. and  sentenced to rigorous imprisonment for two years
\nand to three months respectively in connection with injuries
\nto two other persons. On appeal to the High Court conviction
\nwas altered  to one  under section 304 A.I.P.C. Only and the
\naccused was  sentenced to rigorous imprisonment for eighteen
\nmonths and  to a  fine of  Rs. 500\/-,  in  default  rigorous
\nimprisonment for six months.\n<\/p>\n
     Briefly the facts are as Follows:-\n<\/p>\n
     It was  usual for the deceased Mahomadali Kasamali, who
\nwas the sarpanch of village Nandasan, to spend some hours of
\nthe night  from 8.00  P.M. to 11.P.M. near the Hotel Shanker
\nVijay which  is situated  by the  side of  the highway\tfrom
\nMehsana to  Ahmedabad. There is a big open space in front of
\nthe hotel  towards the\tnorth and a kutcha road branches off
\nfrom the  highway towards  Dangarwa.  This  kutcha  road  is
\nalmost in the centre of the open space in front of the hotel
\nmeasuring about\t 80  feet.  It\tis  said  that\tthe  portion
\nimmediately in\tfront of  the hotel is about two feet higher
\nin elevation  from the\tkutcha road. On August 23, 1969, the
\naccused came  in a  tractor and\t stopped  the  same  on\t the
\nhighway. He  saw truck\tNo.  G.T.F.  904  which\t Was  parked
\nopposite to  the aforesaid  hotel of  Vasudev (P.W.  7). The
\nowner of  the truck  had gone  to the  village\tleaving\t his
\nconductor Usman\t Imamali (P.W.\t11) in the truck. It is said
\nthat the  accused used\tto drive  this\ttruck  earlier\twith
\npermission of  the truck-owner. This time he used the key of
\nhis tractor  to start the truck and he drove the same by the
\nopen field  in front  of the  hotel. He drove the truck with
\nthe head  lights on  in full speed straight on the steel cot
\non which  The deceased\twas resting with the result that the
\ntruck dashed  against the  cot and  the deceased  was thrown
\naway to\t a distance  of about  ten feet\t from the  cot. Head
\nConstable Revajit  (PW 3)  was sitting\ton the same cot with
\nthe deceased  and he was also thrown away. There was another
\nwooden cot  nearby where  Constable Dalpat  Singh (PW 4) and
\nVavdinmiya (PW\t5) were sitting. The Head Constable with the
\nother Constable came to meet the Sarpanch in connection with
\nthe investigation  of a certain case. Since there was enmity
\nbetween the accused and the deceased on account of Panchayat
\nelections the prosecution case is that the accused willfully
\nand deliberately  drove the vehicle towards the cot with the
\nintention of  causing death  to the A deceased Sarpanch. The
\naccused was  originally charged\t under section\t302 IPC\t and
\nunder section  326 and\t323 IPC\t with the  result  mentioned
\nabove. Hence  this appeal  by the  State  by  special  leave
\nagainst the judgment of the High Court.\n<\/p>\n
     The question  that arises\tfor consideration is whether
\nthe facts  that `are  established against the accused fulfil
\nthe ingredients of section 304
\n305<\/span>
\nPart II as submitted by Mr. Debabrata Mukherjee on behalf of
\nthe  State. According to the learned counsel this is a clear
\ncase under  section 304 Part II and conviction under section
\n304A is unsustainable.\n<\/p>\n
     Section 304A  carves out a specific offence where death
\nis caused by doing a rash or negligent act and that act does
\nnot amount  to culpable\t homicide under\t section 299  IPC or
\nmurder under section 300 IPC. If a person willfully drives a
\nmotor vehicle  into the\t midst of a crowd and thereby causes
\ndeath to some person, it will not be a case of mere rash and
\nnegligent driving  and\tthe  act  will\tamount\tto  culpable
\nhomicide.  Each\t  case\twill,  therefore,  depend  upon\t the
\nparticular facts established against the accused.\n<\/p>\n
     The prosecution  in this  case wanted  to\testablish  a
\nmotive for  committing the  offence against the Sarpanch. It
\nwas sought  to be  established that there was enmity between
\nthe Sarpanch  and the accused ` and his relations on account
\nof Panchayat  elections. Some  evidence was  led in order to
\nprove that  the\t accused  and  his  relations  were  gunning
\nagainst the  Sarpanch  for  some  time\tafter  the  latter’s
\nelection as  Sarpanch. Even an anonymous letter was received
\nby the\tSarpanch threatening  his life which was handed over
\nto the\tpolice by  the Sarpanch.  Both the Sessions Judge as
\nwell  as   the\tHigh  Court  did  not  accept  the  evidence
\nappertaining to\t motive. Mr.  Mukherjee, therefore,  rightly
\nand very  fairly did not address us with regard to that part
\nof the\tcase. Even  so, the learned counsel submits that the
\nact per\t se and\t the manner  in which the vehicle was driven
\nclearly brought the case under section 304 Part II IPC.\n<\/p>\n
     The following  facts are established. The accused drove
\nthe truck  at  great  speed  with  lights  on.\tHe  had\t the
\nconductor with\thim in\tthe truck.  Some time before driving
\nthe truck  the accused\thad seen the Constables talking with
\nthe Sarpanch  at the  spot in question. There is no evidence
\nthat the  accused had  a licence  to drive  the\t truck.\t It,
\nhowever appears\t from  it.  70,\t which\tis  a  complaint  in
\ncriminal case  No. 160\tof 1969\t dated January 17, 1969 that
\nthe accused  “had no licence…. while driving his truck No.
\nGTF 704.”  While the  two Constables jumped from the cot and
\nescaped the  deceased could  not do  so in  spite  of  being
\nalerted by  the Head  Constable as he was in a Lying posture
\non the cot. It appears from the map of the scene Ext. 9 that
\nthe truck while being driven by the field was trying to turn
\ntowards the kutcha road at a point near the cot shown in the
\nmap. This  would go  to show  that the accused was unable to
\ncontrol the vehicle in high speed while taking a turn to get
\ninto the kutcha road from the open field and in this process
\nhit the\t cot throwing  the deceased  out of  the cot  by the
\nimpact resulting  in injuries  which ultimately\t led to\t his
\ndeath.\tEven  the  Constables,\twho  jumped  from  the\tcot,
\nreceived injuries. There was no direct impact of the persons
\nwith the vehicle in speed.\n<\/p>\n
     The  accused   in\this  statement\tunder  section\t342,
\nCriminal Procedure Code, stated as follows:-\n<\/p>\n
     “I took  the truck\t in reverse  first and as there were
\n     other trucks  lying round\tabout, I  took out  my truck
\n     from the available way.\n<\/p><\/blockquote>\n
306<\/span><\/p>\n
     The accilator (sic) stuck down and hence the truck went
\n     in full  speed and did not remain in control. One truck
\n     was coming\t from opposite\tside with  full light. While
\n     driving with  (sic) this  way, I  heard some noise, and
\n     the conductor  Usman told\tme that the truck had struck
\n     with something  then I  heard some\t shouts and realised
\n     that some\tpersons were  injured but I did not stop the
\n     truck through  fear of assault .. truck through fear of
\n     assault  …..   I\t presented   myself  at\t the  Police
\n     Station”.<\/p><\/blockquote>\n
     Now this  version is  supported by\t Usman (PW  11) who,
\nhowever, has  been declared  hostile by\t the prosecution. He
\nwas cross-examined  by the prosecution in order to show that
\nhe made\t a wrong  statement in the examination-in-chief when
\nhe stated  that the  accused drove the truck with the key of
\nthe truck  whereas he  had stated before the police that the
\naccused came  on his  tractor and started the truck with his
\nkey. He\t was also  cross-examined about\t a truck coming from
\nthe opposite  side with full light that he had not stated to
\nthe police to that effect.\n<\/p>\n
     We do not think that the omission to mention before the
\npolice\tabout\tanother\t truck\t coming\t from  the  opposite
\ndirection can  be a  contradiction  within  the\t meaning  of
\nsection 162,  Criminal Procedure  Code. We  also do not give
\nmuch importance\t as to\twhether the  accused drove the truck
\nwith his  key or  with the  key of the tractor. That has not
\nmuch relevance in view of the fact that the accused admitted
\nto have\t driven the  truck. Besides,  it is  admitted by the
\nprosecution witnesses  (PWs’ 2 and 6) that the conductor (PW
\n11 )  was in the truck when the accused drove the same. PW11
\nis, therefore,\ta natural  witness and\twe do  not find\t any
\nreason to  disbelieve him  when he  stated that\t a truck was
\ncoming from  the opposite  direction with  full\t lights\t on.
\nBesides, the  owner of\tthe truck having not found the truck
\nin the\tplace where  he had parked had already telephoned to
\nthe Police  Station about  someone taking  away\t the  truck.
\nPW11, who is an employee of the truck owner, was, therefore,
\nnot even  obliged to  speak in\tfavour of  the accused.\t The
\nfacts disclosed\t in the\t prosecution evidence, therefore, do
\nnot make  out a\t case of any wilful or deliberate act on the
\npart of\t the accused  in order\tto cause  the death  of\t the
\nSarpanch by  driving the  truck in  the way he did. Besides,
\nthe presence  of the  Head Constable  and another  Constable
\nwith the deceased whom the accused had himself seen prior to
\nhis driving  the truck\twould run  counter to  a  theory  of
\nwilful and  deliberate act  on the  part of  the accused  to
\ncause the  death not  only of  the Sarpanch  but necessarily
\nalso of the Constables.\n<\/p>\n
     Section 304A by its own definition totally excludes the
\ningredients of\tsection 299 or section 300 IPC. Doing an act
\nwith the  intent to kill a person or knowledge that doing of
\nan act\twas likely to cause a person’s death are ingredients
\nof  the\t  offence  of  culpable\t homicide.  When  intent  or
\nknowledge as  described above is the direct motivating force
\nof the act complained of, section 304 A has to make room for
\nthe graver
\n307<\/span>
\nand more  serious charge  of culpable  homicide.  Does\tthis
\nhappen in A this case ?\n<\/p>\n
     The tangential  track of  the speeding  truck coming in
\ncontact with  the corner  of the  steel cot throwing it over
\nthe wooden  cot and  thereby throwing the deceased out of it
\nresulting in  fatal injuries  would not\t reveal the  accused
\nintention or any deliberate act with the requisite knowledge
\nfor  an\t  offence  of\tculpable  homicide.  The  facts\t and
\ncircumstances disclosed\t in this case fit in more reasonably
\nwith the  theory of  loss of  control by  the accused of the
\nvehicle in  high speed\ttrying to take a turn for the kutcha
\nroad.\n<\/p>\n
     There is,\ttherefore, no  error committed\tby the\tHigh
\nCourt in  holding that\tthe falls under section 304A IPC and
\nnot under  304\tPart  II  IPC.\tThe  appeal  is\t accordingly
\ndismissed. C
\nS.R.\t\t\t\t\t   Appeal dismissed.\n<\/p>\n
308<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Gujarat A vs Haidarali Kalubhai on 3 February, 1976 Equivalent citations: 1976 AIR 1012, 1976 SCR (3) 303 Author: P Goswami Bench: Goswami, P.K. 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-113238","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Gujarat A vs Haidarali Kalubhai on 3 February, 1976 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-gujarat-a-vs-haidarali-kalubhai-on-3-february-1976\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Gujarat A vs Haidarali Kalubhai on 3 February, 1976 - 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