Complainant's son drowned in an accused's swimming pool that had no lifeguard; police charge-sheeted under Section 304A IPC while FIR was under Section 304 IPC. The Court held the act was criminal negligence, not culpable homicide, and refused to direct alteration of charge.
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NC: 2024:KHC:46123 WP No. 6589 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 6589 OF 2023 (GM-RES)
BETWEEN:
SRI VENKATESH S/O SRI CHELUVAIAH AGED ABOUT 43 YEARS RESIDING AT 2ND CROSS GEETHAMANDIRA EXTENSION NEAR PRANAVAMUKHI ANJANEYA SWAMY TEMPLE RAMANAGARA – 562 159.
…PETITIONER
(BY SRI G.M.SRINIVASA REDDY, ADVOCATE)
AND:
Digitally signed by NAGAVENI Location: HIGH COURT OF KARNATAKA
NC: 2024:KHC:46123 WP No. 6589 of 2023
RAMANAGARA DISTRICT – 562 159.
…RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL. SPP)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA R/W SECTION 482 OF CR.P.C PRAYING TO DIRECTING THE RESPONDENT - POLICE TO PROPER INVESTIGATION IN ACCORDANCE WITH LAW VIDE ANNEXURE-D CHARGE SHEET DTD 6.8.2014 FILED BY R5.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner who is the complainant, is before this Court
seeking a direction by issuance of a writ in the nature of mandamus to treat the offence that is charged against the accused to be one for Section 304 of the IPC and not under Section 304A of the IPC as is laid against the accused in Crime No.14 of 2014 registered for offence under Section 304 of the IPC, which comes to be changed to Section 304A of the IPC in the charge sheet.
NC: 2024:KHC:46123 WP No. 6589 of 2023
appearing for the petitioner and Sri B.N. Jagadeesha, learned Additional State Public Prosecutor appearing for the
respondents.
The complainant is the father of one deceased
Yogananda. Yogananda and others go to swim in a swimming pool owned and run by the accused. It is an admitted fact that
there was no lifeguard appointed by the owner/accused to safeguard person who go to the swimming pool. The son of the complainant along with two others seek to swim in the pool where mishap happens, resulting in the death of the son of the complainant. The complainant registers a crime in Crime No.14 of 2014 for offence punishable under Section 304 of the IPC. The police file a charge sheet under Section 304A of the IPC and the matter is pending before the learned Magistrate in C.C.No.1378 of 2014. Nine years thereafter, the complainant is knocking at the doors of this Court seeking alteration of charge from Section 304A to Section 304 of the IPC.
5.The learned Additional State Public Prosecutor would refute the submission in contending that what is invokable in the case at hand is only Section 304A of the IPC and the matter is at the fag-end of the trial. At this stage, the complainant is seeking change of charge. Therefore, the petition should be dismissed.
an admitted fact that the accused owns and runs a swimming pool. Again, it is an admitted fact that there is no lifeguard appointed to take care of the swimmers in the swimming pool. A mishap results in the death of the son of the complainant. Whether it would become an offence under Section 304 or under Section 304A of the IPC is required to be noticed. Section 304 of the IPC reads as follows:
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.”
Section 304 of the IPC punishes a person who commits culpable homicide which would not amount to murder. The ingredients
of Section 304 of the IPC are found in Section 301 of the IPC. It reads as follows:
“301. Culpable homicide by causing death of person other than person whose death was intended. —If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.”
Section 301 of the IPC mandates mens rea and knowledge of a particular act that may result in death of any person. Section
304A of the IPC that is alleged reads as follows:
“ 304-A. Causing death by negligence.— Whoever causes the 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 304A of the IPC deals with a person who causes death of any person by doing any rash or negligent act. The accused in the case at hand is undoubtedly negligent and out of that negligence, death has resulted. This would not amount to culpable homicide or blamable homicide but criminal negligence. The accused have been appropriately charged and the charge under Section 304 of the IPC for the mere asking of the complainant cannot be directed to be invoked. Though it is
NC: 2024:KHC:46123 WP No. 6589 of 2023
settled principle of law that under Section 216 of the Cr.P.C. charge can be altered at any point in time during the trial and even after the judgment is reserved for its pronouncement, but that would not mean that a wrong charge can be directed to be invoked. What is invokable qua the offence is Section 304A of
the IPC in the case at hand and not Section 304 of the IPC.
rejected.
Sd/(M.NAGAPRASANNA)
JUDGE
NVJ
List No.: 2 Sl No.: 28 CT:SS
1 issue framed by the court
Whether the complainant could seek alteration of the charge from Section 304A IPC (causing death by negligence) to Section 304 IPC (culpable homicide not amounting to murder) via writ petition.
5 provisions across 3 enactments
Sri Venkatesh
The Additional Chief Secretary, Department of Home, Vidhana Soudha, Bengaluru
The Superintendent of Police, Ramanagara District
The Deputy Superintendent of Police, Ramanagara Town Police Station
The Circle Inspector of Police, Ramanagara Circle
The Sub-Inspector of Police, Ramanagara Town Police Station
M.Nagaprasanna
As recorded by the court registry
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