Dismissed

Sri Kolla Bhovi v. State by Tarikere Police Station

Karnataka HC21 Mar 2023CRL.RP/1030/2014

Case brief

AI extract

What is this about?

High Court of Karnataka dismissed a criminal revision petition challenging an order dismissing an application for discharge. The Court upheld that the evidence prima facie revealed rash and negligent driving with knowledge likely to cause death, attracting Section 304 Part II of IPC.

What did the court decide?

Revision petition under Section 397 Cr.P.C. dismissed; order dated 23.09.2014 confirmed.

Sri Kolla Bhovi Vs State by Tarikere Police Station — Motor Accident Claims | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF MARCH, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE RAMACHANDRA D.HUDDAR CRIMINAL REVISION PETITION No.1030/2014

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BETWEEN :

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Sri Kolla Bhovi S/o Sanna Kolla Bhovi, Aged about 39 years, R/at Bhavikere, Tarikere Taluk, Chikmgalur District - 576 301.

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… Petitioner

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(By Sri K.Prasannashetty, Advocate)

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AND :

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State by Tarikere Police Station, Tarikere, Represented by Special Public Prosecutor, High Court of Karnataka, Bangalore - 560 001.

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… Respondent

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(By Sri V.V.Vinayaka, HCGP)

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This Criminal Revision Petition is filed under Section 397 of Code of Criminal Procedure praying to set aside the order dated 23.09.2014 passed by the learned Principal District and Sessions Judge, Chikkamagalur, in Sessions Case No.8/2014 and discharge the petitioner for the offence punishable under Section 304-II of IPC.

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This Criminal Revision Petition having been heard and reserved on 17.02.2023, coming on for pronouncement of orders, this day, the Court made the following :

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O R D E R

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Revision petitioner-accused has preferred this revision under Section 397 of Code of Criminal Procedure (for short ‘Cr.P.C’) challenging the order dated 23.09.2014 passed by the Principal District and Sessions Judge, Chikmagalur in Sessions Case No.8/2014, dismissing his application seeking discharge for the offence punishable under Section 304 Part II of Indian Penal Code (for short ‘IPC’).

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Brief and relevant of facts of the case are as under :

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That on Ummer Sab S/o Khalandar Sab lodged a compliant on 20.01.2013 before Tarikere Town Police Station alleging, that on 20.01.2013, by loading the vegetable in his Mahidra Maximo motor vehicle bearing Reg.No.KA-18/A-8799 was moving towards Shimogga along with Gangadharappa on Kadur-Birur road at about 7.30 p.m. When he was so moving within the jurisdiction of Bettadahalli Village at about

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8.30 p.m., the driver of a lorry bearing Reg.No.KA-04/A8166 by driving his lorry in high speed and in a rash and negligent manner came from behind and dashed against the Mahindra Maximo vehicle from behind. Because of this impact, the inamate of the Mahindra Maximo Gangadharappa sustained head injury and the vehicle of the complainant was damaged. It is alleged that, the said driver of the lorry did not stop the lorry. Complainant followed the said lorry along with one Jafar for about two kilometers. When he was so following near Ajjampur Cross near Shaneshwar Temple, the said lorry driver was driving the lorry in high speed and in a rash and negligent manner dashed against the tractor bearing Reg.No.KA-28-T/6380 which was coming from opposite direction. Because of this accident, the tractor engine was completely damaged and the driver of the tractor sustained injuries on his person. The injured were shifted to the hospital. With these allegations, a complaint came to be filed which was registered in Crime No.14/2013 of Tarikere Town Police Station and criminal law was set in motion.

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The Investigating Officer conducted the

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investigation and after completion of the investigation filed the charge-sheet against the accused persons for the offences punishable under Sections 279, 337, 304 Part II of IPC and Sections 134(a) and (b) read with Section 181 of Motor Vehicles Act.

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As the offences are triable by the Sessions Court, the jurisdictional Magistrate committed the case to the Sessions Court for trial. The said case was made over to the I Additional Sessions Judge, Chikkamagaluru. Accused was in custody at that time.

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The Jurisdictional Magistrate had complied the provisions Section 207 of Cr.P.C by supplying the copies of the police papers to the accused.

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After committal of the case, accused filed an application under Section 227 of Cr.P.C praying to discharge him for the offence punishable under Section 304 Part II of IPC by framing charge for the offences punishable under Sections 279, 337 and 304 of IPC read with Section 134(a)

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and (b) of the Motor Vehicles Act. The learned Public Prosecutor filed objections to the said application.

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The learned I Additional District and Sessions Judge, Chikmagalur vide order dated 23.09.2014, rejected the said application and farmed the charges against the accused person for the offences punishable under Sections 279, 337, 304(2) of IPC and Sections 134(a) and (b) of the Motor Vehicles Act.

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Being aggrieved and dissatisfied by the rejection of his application, now the accused has filed this revision petition challenging the said order on the following grounds :

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i. In addition to narrating the facts of the case so pleaded by the complainant, it is contended that the learned Sessions Judge has failed to appreciate the contentions of the petitioner. The accused was medically examined by the Government Medical Officer and noticed the breath smell of alcohol and slurring of speech and based upon that the learned Judge has come to the conclusion that the accused had consumed alcohol which according to the accused is not

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correct. It was an external opinion of the medical officer.

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ii. Entire charge-sheet is salient about the offence under Section 304 Part II of IPC. The ingredients of the said offence is not attracted.

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iii. The contents of the application and the grounds so made out in his application have not been appreciated by the Sessions Judge.

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There are no grounds to frame the charges for the offences under Section 304 Part II of IPC. Hence, it is prayed to allow the revision petition by allowing his application.

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After filing this petition, notice is issued to the State and learned High Court Government Pleader appeared before the Court by taking notice of this petition. Records of the trial court are secured.

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Heard the arguments and perused the records.

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The point that would arise for my consideration

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are as under :-

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“Whether revision petitioner is justified in seeking his discharge for the offence under Section 304 Part II of IPC as prayed ?

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On reading of the complaint allegations which are not in serious dispute that accused was the driver of a lorry bearing Reg.No.KA-04/A-8166, at the relevant time. It is also not in dispute that the complainant was moving in his Mahindra Maximo vehicle bearing Reg.No.KA-18/A-8799 on 20.01.2013 towards Shimogga, by loading vegetable along with Gangadharappa. It is alleged that, when the said Mahindra Maximo vehicle was moving towards Shimogga at Bettadhalli village at about 8.30 p.m. the driver of the aforesaid vehicle i.e., the accused by driving his lorry in high speed and in a rash and negligent manner, dashed the Mahindra Maximo from behind and caused the accident. Because of this accident, Gangdharappa sustained head injury and subsequently died. The driver of the said lorry did not stop the lorry and again dashed against a tractor bearing Reg.No.KA-28-T-6380 coming from opposite direction wherein the driver of the said tractor also sustained injuries

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on his person. As per the allegations made in the complaint, complainant is an eyewitness to the accidents. Accused was arrested by the police and he was medically examined, wherein the Doctor has opined that the accused has consumed alcohol and he was under the influence of alcohol with slurring speech. The inquest panchanama and post mortem report of deceased Gangadharappa and wound certificate of Abdul Sattar are collected by the Investigating Officer. Gangadharappa died because of accidental injuries so sustained. So also injured Abdul Sattar sustained accidental injuries.

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The scene of offence panchanama as well as sketch show that, the accidents have taken at two places as reflected in the sketches. Photographs are also collected by the Investigating Officer.

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The only grievance of the accused is that at the utmost the provisions of Sections 279, 338, 304A of IPC and Section 134(a) and (b) are attracted and not Section 304 Part II of IPC. Therefore, he moved an application for his

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discharge for the offence under Section 304(2) of IPC, but it was dismissed.

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It is argued by the learned counsel for the revision petitioner that, in respect of the case wherein a person caused death of an other acts are rash and negligent, but there is no intention to cause death and no knowledge that such rash and negligent act will cause death, the accused should be booked for committing offence under Section 304A of IPC. He raised serious doubt that even taking the allegations against the accused as they are, penal provision under Section 304 Part II of IPC cannot be attributed to the accused. Therefore, it is submitted on behalf of the petitioner that, the very dismissal of his application for discharge of the offence under Section 304 Part II of IPC is bad. He further submits that the learned trial Court has committed wrong in dismissing his application.

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It is true that, as per the judgment of the Hon’ble Supreme Court of India in the case of State of Punjab vs.

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Balwinder Sing and others¹ in respect of the case wherein a person caused death of another by acts are rash and negligent, but there is no intention to cause death and no knowledge that such rash and negligent act will cause death then provisions of Section 304A of IPC are attracted.

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But, it is for the prosecution to prove that to bring home the charge under Section 304 Part II of IPC, it has to prove that the death of the person in question-that such death was caused by the act of the accused and he knew that such act is so likely to cause death. Section 304A of IPC may be attracted, but where the rash and negligent act is preceded that the knowledge that such act is likely to cause death, Section 304 Part II of IPC may be attracted and it is stated that, if such rash and negligent act is preceded by the real incident on the part of the wrong doer to cause death, offence will be punishable under Section 302 of IPC.

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A clear distinction with regard to applicability of the penal provisions under Sections 304 and 304A of IPC has

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1 (2012) 2 SCC 182

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been laid down in the case of Alister Anthoni Pareira V.

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State of Maharashtra² .

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In a judgment of Hon’ble Supreme Court of India in State T.R. P.S.Lodhi Colony, New Delhi V. Sanjeev Nanda³ , it is held that -

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“In a case where the accused who was driving a vehicle in high speed dashed against six persons who were standing on the road, mowed them down causing their death and the accused was in inebriated state and he did not stop to give help to the injured person but fled away from the spot, the accused was held liable to be convicted under Section 304 Part II of IPC.”

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Coming to the instant case, it is submitted by the learned Government Advocate that, the spot enquiry was held by the police after the accident. Complainant is an eyewitness. A local person who saw the accident have given their statement about dashing of said lorry of the

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2 (2012) 2 SCC Page 648

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3 2012 Crl.L.J 4174 (Supreme Court)

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accused to the lorry of the complainant from its behind and without stopping the same, the driver of the lorry i.e., the accused did not stop the lorry and by driving the said lorry in rash and negligent manner and in high speed dashed against the tractor coming from the opposite direction. The driver of the said tractor also sustained injures. It is submitted that petitioner accused was the driver of the said lorry had the knowledge that if the lorry is driven at an excessive high speed and in such a dangerous manner, it may cause fatal accident. As a result of such rash and negligent driving, the said lorry dashed against the lorry driven by the complainant form its behind and then against the tractor coming from the opposite direction causing serious injuries to the inmate of the lorry driven by the complainant by name Gangadharappa and caused injuries to the driver of the tractor.

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It is submitted that the unfortunate accident took place in the evening hours on 20.01.2013 at about 8.30 p.m.

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The learned Sessions Judge has rejected the application for discharge. Though there is a prayer for discharge, it is urged before this Court that, the accused was wrongly charged under Section 304 Part II of IPC. But, I am unable to agree with the argument of the Advocate for petitioner that, taking into consideration the entirety of the fact and the chargesheet papers so collected, it prima facie reveal that in the yester night of the incident, the petitioner/accused was on the steering as a driver of the lorry having driven the same in a rash and negligent manner in high speed. The learned Trial Court on appreciation of the prosecution papers have come to the conclusion that the provision of Section 304 Part II of IPC are attracted and not under Section 304(A) of IPC.

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Now this requires to consider as to whether under the facts and circumstances of the case and the materials collected by the Investigating Officer under the penal provision under Section 304 Part II of IPC is justified or it is to be scaled down under Section 304(A) of IPC.

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23. Section 304 of IPC reads thus :-

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”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.”

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On plain reading of Section 304 of IPC, it makes

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it clear that, it is in two parts. The first part of Section is generally refers to as ‘Section 304 Part I’, whereas second part of ‘Section 304 Part II’. The first part applies where the accused causes death to the victim with an intention to cause such bodily injury as is likely to cause death. Part II on the other hand comes into play when death is caused by doing

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an act with a knowledge, that is likely to cause death, but without any intention to cause death or such bodily injury as is likely to cause death.

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The most important consideration upon a trial for this offence is the intention or knowledge with which such the act which caused death was done. The intention to cause death or the knowledge that death will probably be caused, is the essential and is that to which the law principally looks. A question may be posed, that how can be existence of the requisite intention or knowledge be proved, seeing that these are the internal and invisible act of the mind ?. They can be ascertained only from external and visible acts. Observation and experience enable the court to judge the connections between men’s conduct and their intention’s. We know that, a sane man does not usually commit certain act heedlessly or intentionally and generally, we have no difficulty in inferring from his conduct, what was his real intention upon any given occasion.

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To invoke the provisions of Section 304 Part II of

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IPC prosecution has to satisfy the ingredients. i.e. the offender must have knowledge that the bodily injury is likely to cause death.

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Section 304A of IPC was inserted by the Indian Penal Code (amendment) Act, 1870. It reads thus ;

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“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.

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The section deals with the homicidal death by the rash and negligent act. It does not create any offence. It is directed against the offences outside the range under Sections 299 and 300 of IPC and covers those case where death has been caused without intention or knowledge. The words “not amounting to culpable homicide’ in the provisions are significant and clearly convey that the section seeks to embrace this case where there is intention to cause death, nor knowledge that the act done will in all probability result into death. It applies to act which are rash or negligent and are directly the cause of death of another person.

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Thus, there is a distinction between Section 304 and Section 304A of IPC. Where death is caused by doing a rash or negligent act which does not amount to culpable homicide not amounting to murder within the meaning of Section 299 or culpable homicide amounting to murder under Section 300 of IPC. In other words, Section 304A of IPC excludes all the ingredients of Section 299 of IPC as also of Section 300 of IPC.

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Here in this case police have filed charge sheet against the accused for the offences punishable under Sections 279, 337 304 Part II of IPC and Sections 134(a) and (b) and Section 3 read with Section 181 of Motor Vehicles Act and collected sufficient materials so as to attract the provisions of Section 304 Part II of IPC. As discussed above, there cannot be any direct evidence of knowledge of the offender. It can only be ascertained through circumstantial evidence. The test to be adopted by the Court under such circumstances is, a test of prudent person under the same facts and circumstances. A prudent person will not drive a vehicle at a very high speed and in a dangerous manner, which he cannot control because a man of prudence as the full knowledge that there is obvious chance of fatal accident. In the instant case, the lorry is driven at very high speed and in a dangerous manner. It is found from the police report and the contents of the charge-sheet that, on the ill-fated day the offending lorry was being driven at such a high speed in the aforesaid village, without any driving licence by the accused, it had first dashed against the lorry of the complaisant from

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its behind and thereafter collided with a tractor coming from the opposite direction causing death of Gangdharappa and injuries to driver of the tractor. It is petitioner/accused who was driving lorry at utmost high speed in spite of having knowledge that such reckless driving may cause death of any person when the accident took place.

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The learned Sessions Judge having taken into consideration of all these aspects on scanning the entire contents of the charge-sheet have rejected the application for discharging the accused for the offence under Section 304 Part II of IPC. I do not find any factual or legal error being committed by the District and Sessions Judge in rejecting the said application. Already charges have been framed against the accused for the offence under Sections 279, 337, 304 Part II of IPC and Section 134(a) and (b) and Section 3 read with Section 181 of the Motor Vehicles Act. Therefore, there is no merit in this revision. Accordingly, I record my finding on the above point in the negative.

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From the foregoing discussions and the reasons stated thereon, the revision petition filed by the revision petitioner/accused is liable to be dismissed. Resultantly, I pass the following :

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ORDER

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Revision Petition filed by the petitioner under

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Section 397 of Code of Criminal Procedure is dismissed.

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The order dated 23.09.2014 passed by the learned Principal District and Sessions Judge, Chikamaglur in Sessions Case No.8/2014 is hereby confirmed.

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As this case is of the year 2014, the trial court is requested to dispose of this case expeditiously with all its promptitude.

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Office is directed to return the trial court records with a copy of this order, forthwith.