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2012 DIGILAW 5 (CHH)

DINESH KUMAR YADAV @ PAPPU v. STATE OF C. G.

2012-01-04

SUNIL KUMAR SINHA

body2012
ORDER 1. This revision is directed against the order dated 9.8.2011 passed in Session Trial No.40/2011 by the Session Judge Kabirdham, whereby charges u/s 304 Part-II IPC have been framed against the applicant. 2. The facts, briefly stated, are as under:- The applicant was a tractor driver. On the fateful day i.e. on 14.5.2011, he was engaged in driving tractor No. CG- 10/D-1128 belonging to one Narayan Chandrakar. The tractor was fitted with a 4 wheeler-trolley. The applicant, on instructions of the owner, had taken the tractor-trolley for loading bricks. Deceased- Rameshwar Chandrakar and Durgesh Pandey loaded the bricks in the trolley. They closed the side dala of the trolley. Thereafter the applicant started the engine of the tractor. He was sitting on the driving seat. He asked the deceased to lift the locker-patti. On this the deceased stood on the angle of the tractor. He was trying to climb on the trolley during which course the applicant stat1ed the tractor by negligently driving it and the deceased slipped from the angle and came under the wheel of the trolley and died. The First Information Report was registered u/s 304 IPC and the charge-sheet was filed. On the evidence of eye-witnesses namely Durgesh Pandey and Ganeshi Ram and on other material available on record, the learned Session Judge framed the following charges, which is challenged by the applicant in this revision : ^^vkjksi i=@& eSa vuqjk/kk [kjs] l= U;k;k/kh’k] dchj/kke ¼do/kkZ½ rqe vfHk;qDr fnus’k ;kno mQZ iIiw vk- /kuhjke ;kno mez 23 lky fuoklh xzke izk.kdaik Fkkuk dq.Mk rglhy iaMfj;k ftyk dchj/kke ij fuEu vkjksi yxkrh g¡w %& ^^vkids )kjk fnukad 15-5-2011 dks VªSDVj dzekad lh-th- 10 Mh- 1128 dks pkyw gkyr esa j[krs gq, xkM+h esa yxs yksgs dh iV~Vh fudky jgs jkes’oj pUnzkdj ds lanHkZ esa bl Kku ds lkFk fd VªSDVj dks vkxs c<+kus ls og Vªkyh esa ncdj ej ldrk gS] Vªkyh dks vkxs c<+k;k ftlls iSj fLyi gks uhps fxjus ls ncdj mldh e`R;qdkfjr dh] tks gR;k dh dksfV esa u vkus okyk vkijkf/kd ekuoo/k gS] tks Hkknfo dh /kkjk 304 ¼Hkkx&2½ ds v/khu n.Muh; gS A vkSj bl U;k;ky; ds fopkj.k {ks=kf/kdkj ds varxZr gS** vr% eSa vkns’k nsrh gwa fd vkidk fopkj.k mDr vkjksi ds fy;s bl U;k;ky; )kjk fd;k tk;s A lgh@& dchj/kke ¼do/kkZ½ ¼Jherh vuqjk/kk [kjs½ l= U;k;k/kh’k dchj/kke** 3. Mr. A.K. Yadav & Mr. Mr. A.K. Yadav & Mr. Virendra Chandrakar, learned counsel appearing on behalf of the applicant, argued that in the above facts and circumstances of the case, prima facie an offence u/s 304 Part-II IPC would not be made out therefore, the charges under the above Section cannot be sustained. They argued that according to the material available in the charge-sheet, the applicant, at the most, would be liable for facing charges u/s 304-A IPC. 4. On the other hand, Mr. R.R. Sinha, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the charges framed by the Session Judge. 5. I have heard learned counsel for the parties at length and have also perused the records of the criminal revision which contains copy of entire charge-sheet. 6. Among the three Sections of IPC i.e. 302, 304 & 304-A, Section 304-A is an offence where the death is caused by doing a rash or negligent act, but such act does not amount to culpable homicide u/s 294 or murder u/s 300 IPC. Doing all act with an intention of causing death or knowledge that doing such an act was likely to cause death is culpable homicide. Therefore, intention or knowledge are the two important elements to bring an act within the ambit of any part of Section 304 IPC. Knowledge of consequences which may result in doing an act is quite different than the intention which denotes that a particular consequence should ensure. For attracting the former part of Section 304, an element of intention is a factor whereas for attracting the later part, an element of knowledge is a factor. The intention is the purposeful doing of a thing to achieve a' particular result, whereas, the knowledge is an awareness which attributes to be well informed that a particular result may happen by doing a thing. Section 304-A relates to causing death by negligence. It provides that whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished in accordance with the provisions of this Section. 7. Therefore, with reference to above, three categories for classification of an offence are very clear. One, culpable homicide amounting to murder; other, culpable homicide not amounting to murder; and last, causing death by doing any rash or negligent act not amounting to culpable homicide. 7. Therefore, with reference to above, three categories for classification of an offence are very clear. One, culpable homicide amounting to murder; other, culpable homicide not amounting to murder; and last, causing death by doing any rash or negligent act not amounting to culpable homicide. For the former two categories culpable homicide is a common factor, whereas for the last category i.e. for an offence punishable u/s 304-A the act must not be amounting to culpable homicide. It is sufficient for Section 304-A that a person has acted in rash or negligent manner and that such act has caused death of any person. Unlike the above offences neither the intention nor the knowledge of the would be death are attributable for an offence u/s 304-A IPC. 8. In the instant case, on the entire material available on record, prima facie, it does not appear that there was intention of the applicant to kill the deceased or the applicant was having knowledge that doing of his such act, i.e. driving the vehicle as above, was likely to cause death of the deceased. Therefore, prima facie, it does not appear that the act of the applicant was falling within the category of culpable homicide not amounting to murder and the charges framed by the learned Session Judge u/s 304 Part-II IPC, thus, cannot be sustained. 9. For the foregoing reasons, the revision is allowed. The order of framing of the charges u/s 304 Part-II IPC and the charges framed under the aforesaid Section are set-aside. The learned Session Judge is directed to frame charges u/s 304-A IPC and to proceed further in accordance with Section 228(1) (a) Cr.P.C. Revision Partly Allowed.