State of Gujarat A Vs. Haidarali
Kalubhai  INSC 19 (3 February 1976)
CITATION: 1976 AIR 1012 1976 SCR (3) 303 1976
SCC (1) 889
Indian Penal Code-Section 304A-Ingredients
of-Loss of control over the speeding truck causing the fatal injury falls under
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
[305A-B] (2) Section 304A, by its own
definition totally 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 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. The case falls under s.
304A, I.P.C. and not under 3. 304 Part 11, I.P.C. [307-A-C]
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 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
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 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
willful 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 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.