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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

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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

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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

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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

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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