Judgment : The petitioners in all these revisions are facing trial before the Additional District and Sessions Judge FTC V. Chennai in S.C.No.117 of 2009 for offences under Section 304 (ii), 304(A) and 323 IPC. 2. The petitioners filed petitions under Section 227 Cr.P.C. seeking discharge stating that there are no grounds to frame charge under Section 304(ii) and all the petitions were dismissed. Aggrieved by the same, the petitioners have filed these criminal revision petitions. 3. The case of the prosecution in brief is as follows: The first accused to this case is the president of “Hotel Savera” and the second accused is the “Joint Manager”, the third accused is the “Engineer’ of Hotel, the fourth accused is the Assistant Manager (Sparks-Pub) of Hotel, the fifth accused is the Supervisor working under the fifth accused. 4. The hotel management decided to celebrate 2008 New Year Eve and sold tickets for program to be held at 9.p.m. onwards on 31.12.2007. The function was celebrated by covering the swimming pool of the hotel and erecting stage on the swimming pool and thereby permitting the participants to stand on the erected stage. The fifth and sixth accused being the contractor and supervisor respectively constructed the stage over the swimming pool. 5. On 31.12.2007, at about 10.30 p.m., participants around 600 to 700 persons started dancing heavily on the stage. Unable to bear the weight and force, the centre portion of the stage suddenly collapsed and the public dancing on the stage slide and fell in the swimming pool which was full of water. Nearly 60 to 70 persons started drowning. Some of them were rescued with injuries and were taken to the hospital. One such person was declared dead at the hospital. Two more persons admitted at Apollo hospital subsequently, died on 07.01.2008 in-spite of treatment. 6. The prosecution filed a final report against the accused for the offence under Section 304(ii) IPC (3 counts) for the reason that the stage had been constructed over the swimming pool which is not permitted by law. The temporary stage was constructed with the knowledge that the construction of such stage by covering the swimming pool permitting the participants to dance on the stage would result in collapse of the stage and ultimately may cause the death of the participants. The temporary stage was constructed with the knowledge that the construction of such stage by covering the swimming pool permitting the participants to dance on the stage would result in collapse of the stage and ultimately may cause the death of the participants. The Trial Court held that that there is a prima facie material for framing charges under Section 304(ii) IPC holding that the erection of stage over the swimming pool knowing that there is a risk of the stage collapsing causing death or bodily injury to the persons. 7. The learned counsel for the petitioners submitted that certainly there was neither intention nor knowledge on the part of the accused that their act would result in causing death of the deceased. The accused were not directly responsible for the death of the deceased and even as per the prosecution case, the ingredients of the offence under Section 304(ii) IPC are not made out and the same would, at the most, fall only under Section 304(A) IPC. Learned counsel placed reliance on the decision of the Hon’ble Supreme Court reported in (1976) 1SCC 889 = 1976 L.W. (Crl.) 191 in State of Gujarat Vs.Haidarali Kalubhai and reported in 160 (2009) DLT 775 = MANU/DE/1019/2009 in Sanjeev Nanda Vs. The State and Rajiv Gupta Vs. State (Govt. Of NCT of Delhi). 8. Learned Government Advocate (Crl. Side) submitted that the accused should have shown concern for the persons, who visited the hotel; safety measures were not taken by them and so the accused are responsible for the death caused due to the collapse of the stage and fall of victims in the swimming pool. 9. It is now brought to the notice of this Court that in the counter filed by the respondents before the Trial Court, it was admitted by the prosecution that no material was available on record to connect the accused with the offence under Section 304(ii) IPC. The learned Trial Judge also observed in the order that the prosecution admitted that there is no material for framing charge under Section 304(ii) IPC. 10. This Court considered the submissions perused the records. 11. It is observed by the Hon’ble Supreme Court in paragraph 10 and 11 of the decision reported in (1976) 1 SCC 889 in State of Gujarat Vs. Haidarali Kalubhai as follows: “10. 10. This Court considered the submissions perused the records. 11. It is observed by the Hon’ble Supreme Court in paragraph 10 and 11 of the decision reported in (1976) 1 SCC 889 in State of Gujarat Vs. Haidarali Kalubhai as follows: “10. 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 persons death are ingredients of the offence of culpable homicide. When the intent or knowledge as described above is the direct motivating force of the act complaint of, Section 304A has to make room for the graver and more serious charge of culpable homicide. Does this happen in this case? 11. The tangential track of the speeding truck coming in contract 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’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.” 12. It is observed by the Hon’ble Supreme Court in paragraph 18 of the decision reported in (MANU/SC/0199/2004 in Shankar Narayan Bhadolkar V. State of Maharashtra as follows: “18. Coming to the plea of the applicability of Section 304-A, it is to be noted that the said provision relates to death caused by negligence. Section 304. A applies to cases where there is no intention to cause death and no knowledge that the done in all probability will cause death. The provision relates to offences outside the range of Sections 299 and 300 IPC. It applies only to such acts which are rash and negligent and are directly the cause of death of another person. Rashness and negligence are essential elements under Section 304-A. It carves out a specific offences where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder in Section 300 IPC. Rashness and negligence are essential elements under Section 304-A. It carves out a specific offences where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder in Section 300 IPC. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person’s death is culpable homicide. When the intent or knowledge is the direct motivating force of the act. Section 304-A IPC has to make room for the graver and more serious charge of culpable homicide. 13. Paragraph 205, 221 and 223 of 160(2009) DLT 775=MANU/DU/1019/2009 in Sanjeev Nanda Vs. The State and Rajiv Gupta Vs. Staten (Govt. Of NCT of Delhi) reads as follows: 205. The provision of Section 304-A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. This provision is thus directed at offences outside the range of Sections 299 and 300 IPC and obviously contemplates those cases where neither intention nor knowledge enters. On the other hand, Section 299 of IPC deals with those cases in which death of the victim is caused by the accused with the intention to cause death or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that the act is likely to cause death. In the scheme of Indian Penal Code culpable homicide is the genus and murder is its species. All murders are culpable homicide but not vice-versa. The Indian Penal Code practically recognizes three degrees of culpable homicide; the first may be termed as culpable homicide of the first degree; this is the gravest form of culpable homicide which is defined under Section 300 as ‘murder’. The second may be termed as culpable homicide of the second degree, which is punishable under 1st part of Section 304 and then there is culpable homicide of third degree which can be termed as lower type of culpable’ and punishment for this is provided under the IInd Part of Section 304. It needs to be noticed that there is a firm distinction between the classes of cases contemplated by two parts of Section 304 IPC. It needs to be noticed that there is a firm distinction between the classes of cases contemplated by two parts of Section 304 IPC. The 1st part of Section 304 postulates a more serious class of offences where the Court can infer that there is clear intention to cause death, whereas, the IInd Part of Section contemplates slightly lesser class of offence where there is a ‘knowledge’ that the act is likely to cause death, but the ‘intention’ is completely missing. Thus, in Part-I of Section 304 the mental element or mens rea is ‘intention’ whereas’ in Part-II of Section 304 the mens rea is ‘knowledge’. In a case where the accused could have known that the death was likely to be caused but he did not intend to cause death, it was held that the accused could only be convicted under the third clause of Section 299, i.e., for ‘culpable homicide’ punishable in Part-II of Section 304 but neither under Section 302 nor Part-I of Section 304 IPC. ‘Knowledge’ thus cannot be equated with an ‘intention’ requires something more than mere foresight of the consequences, mainly the purposeful doing of a thing to achieve a particular end. In a case where there is no evidence to show any ‘knowledge’ of the likelihood of causing death on the part of the accused, the IInd part of Section 304 IPC will not apply. 221. This brings me back to determine the question as to whether the accused had knowledge at the time of commission of the offence that his act was likely to cause death of 6 persons and injury to one person. The prosecution, in this regard, urged that the appellant had the knowledge that his act of driving the vehicle at a high speed while he was drunk beyond the permissible limit prescribed under Section 185 MV Act coupled with other circumstantial evidence, placed on record, without taking adequate safeguards and without proper care and caution was likely to cause death. The prosecution, in this regard, urged that the appellant had the knowledge that his act of driving the vehicle at a high speed while he was drunk beyond the permissible limit prescribed under Section 185 MV Act coupled with other circumstantial evidence, placed on record, without taking adequate safeguards and without proper care and caution was likely to cause death. Counsel for the appellant, on the other hand, contended that the appellant was driving the vehicle on a cold wintry morning of January and it was not expected of him to know or visualize that a crowd of seven people would be standing in the middle of the road and according to him, accused will have to be presumed to have driven the vehicle safety till be reached Lodhi Road as he had, by then, endangering anybody’s life. Therefore, knowledge cannot be attributed to him. 223. In the light of the aforesaid, it follows that if an act is done with knowledge but without intention, then it would fall under Section 304 Part (II). The act done with knowledge of the end result being of the kind where the doer had reason to believe that the act would result into an offence, the knowledge would be attributable to the offender. “knowledge” is an expression of wide implication and is proficient of varied interpretation in the context of the facts and circumstances of a given case. While doing an act, knowledge of consequence would be attributable to the accused, if it falls within the normal behaviour of the person of common prudence.” 14. Section 304(A) IPC is as follows: “304-A. Causing death by negligence- Whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both” Section 299 IPC is as follows: Culpable Homicide- “Who ever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” 15. Section 299 IPC includes culpability of mind where in Section 304-A IPC excludes culpability of mind. Mens rea plays major role to distinguish both. Section 299 IPC includes culpability of mind where in Section 304-A IPC excludes culpability of mind. Mens rea plays major role to distinguish both. Knowledge of the person that his act would directly result in causing death is culpability. If the person does not intend even to cause harm but the act resulted in causing death then culpability is absent. Similarly, from the facts available in this case, this Court does not find any material to hold that the accused had requisite knowledge to bring the act of the accused within the ambit of Section 304 (ii) I.P.C. The accused had constructed the stage over the swimming pool. Of course, the accused should have avoided such construction for safety reasons. Though the act of accused is wrongful and though it is possible to expect some bad consequences by their act, it is not possible to say that the accused intended to cause any harm to the victims and further even they could have been on the hope that such disastrous consequences would not result. The facts do not reveal the culpability of the accused. 16. In the result, the facts alleged by the prosecution do not attract the ingredients under Section 304(ii) IPC but prima facie case is made out for framing charge under Section 304(A) IPC. Therefore, the learned Additional Sections Judge, Fast Track Court-V is directed to transfer the case to the concerned Magistrate Court as per Section 228(1)(a) of Cr.P.C. to try the accused for an offence under Section 304-A I.P.C. Criminal Revision Petitions are allowed and ordered accordingly.