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Madhya Pradesh High Court · body

2009 DIGILAW 193 (MP)

Dinesh Sharma @ Sonu v. State of M. P.

2009-02-09

S.S.DWIVEDI

body2009
ORDER Arguments heard finally. 1. The applicant has filed this petition under section 482 of CrPC against the order dated 11.9.2008 passed by Second Additional Session Judge, Bhind in Session Trial No. 85/08, whereby learned Court ordered for framing of the charge under section 304 Part 2 of IPC against the applicant. 2. Brief facts of the case are that on 20.1.2008 at about 1 :30 p.m. in the noon, ahead barrier near Dharamkanta, Lashkar Road, Bhind, the' applicant-accused while driving a bus No. UP 80/J-9029 rashly and negligently had dashed to one Mahavir coming front of the motorcycle. In this incident, Mahavir died due to the injuries sustained by him by the dash of the bus concerned. The matter was reported to the police concerned and police had registered a case under section 304 Part-2 of IPC and after due investigation, charge sheet had been filed. Learned trial Court after appreciation of the documents on record came to the conclusion that prima-facie, charge under section 304 Part-2 of IPC is made out and ordered for framing of the aforesaid charge against the applicant, aggrieved by which, the applicant has filed this petition under section 482 of CrPC. 3. Heard learned counsel for both the parties and perused the impugned order. 4. On perusal of the order it is apparent that the allegation against the applicant is for driving the vehicle concerned rashly and negligently, due to which, one person Mahavir has been dashed while he was coming on a motorcycle and he died in this incident. On perusal of the aforesaid version it is apparent that applicant-accused was not having any intention or knowledge in causing death of Mahavir and in view of that, the act of the accused is an act of driving of the vehicle rashly and negligently which may endanger to a human life of the pedestal concerned and this fact clearly comes in the definition of section 304-A of IPC and the aforesaid act of the accused will not come within the purview of section 304 Part-2 of IPC as held by the trial Court concerned. 5. Learned PP is also not able to justify the aforesaid charge framed against the applicant under section 304 Part-2 of IPC which is an deliberate and intentional act of the accused against the deceased person. 6. 5. Learned PP is also not able to justify the aforesaid charge framed against the applicant under section 304 Part-2 of IPC which is an deliberate and intentional act of the accused against the deceased person. 6. For the ready reference, it will be useful to quote here the provisions of section 304 of IPC : 304. Punishment for culpable homicide not amounting to murder - "Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death." 7. On perusal of aforesaid provision it is apparent that act of the culpable homicide not amounting to murder will only come· in picture when the act of the accused is knowingly an act for which he knows that act may cause death of a person. Whereas for the offence under section 304-A of IPC, the ingredients of that is a person doing any rash and negligent act not amounting to culpable homicide which may endanger to life of any person. 8. In view of the aforesaid differences in between section 304 Part-2 and 304-A of IPC it is apparent that the applicant not knowning previously that deceased Mahavir was coming in front of the bus on a motorcycle so that he drove the vehicle rashly and negligently. This is by chance, the deceased came in front of the vehicle concerned and he was dashed by the bus concerned. In such circumstances, the act of the accused clearly comes punishable under section 304-A of IPC not under section 304 Part-2 of IPC as held by the trial Court. 9. In view of the aforesaid, the order of framing of charge under section 304 Part-2 of IPC against the applicant is erroneous and liable to be set-aside. 10. Resultantly, petition is allowed. 9. In view of the aforesaid, the order of framing of charge under section 304 Part-2 of IPC against the applicant is erroneous and liable to be set-aside. 10. Resultantly, petition is allowed. Impugned order of framing of charge under section 304 Part-2 of IPC passed by the trial Court is setaside and it is directed that the trial Court will give a direction that primafacie case under section 304-A of IPC is made out against the accused, and remand the case for trial under section 304-A of IPC to the Chief Judicial Magistrate concerned. 11. A copy of this order be also sent to the trial Court concerned.