Vijayan vs State of Kerala

Padmanabhan, J.—Sole accused is the Appellant. The police charge and Court charge against him were u/s 304 of the Indian Penal Code. But he was convicted u/s 304A and 323 of the Indian Penal Code. Sentences awarded are rigorous imprisonment for one year and three months respectively.

Deceased, aged 75, and the Appellant were owners of adjacent paddy fields. They had some boundary dispute, which is the motive alleged. The case is that on 23rd October 1987, at about 6.30 a.m. while the deceased was in the varamba, he was forcibly pushed by the Appellant resulting in the former falling into the paddy field and having an instantaneous death. It is also alleged that the deceased was a heart patient and this fact known to the Appellant, accelerated the death.

P.Ws. 1 and 2 are occurrence witnesses. They are the son and daughter-in-law of the deceased. Their evidence regarding motive and the incident was accepted by the trial Court. I have no reason to disagree. The fact that the deceased had an instantaneous death is also proved by their evidence and the medical evidence of P.W. 5, supported by Ext. P-(sic) post-mortem certificate issued by him. Medical evidence is that cause of death is heart attack. The doctor did not support, the prosecution case that the push and fall accelerated death or heart attack. So also, the prosecution failed in establishing that the deceased was a heart patient or it was known to the Appellant.

There was no charge for murder. Therefore, the question of intention of causing such bodily injury, as the offender knows to be likely to cause death of the person on account of his peculiar physical condition coming under the second clause of Section 300 of the Indian Penal Code, does not arise for consideration. The charge was only that culpable homicide not amounting to murder, defined in Section 299 and made punishable u/s 304, was committed. Intention of causing death or such bodily injury, as is likely to cause death, does not arise under the circumstances of the case. Then the only question is whether death was caused by doing an act with the knowledge that he is likely, by such act, to cause death or not. If the Appellant was unaware of the fact that the deceased was a heart patient (even if the prosecution case that the deceased was a heart patient is true), he cannot be fixed with the knowledge that the push and fall are likely to cause death. Therefore, conviction u/s 304 of the Indian Penal Code is out of question. Rightly, he was not convicted for that offence. Conviction was only u/s 304A.

Section 304A penalises only causing of death by doing any rash or negligent act not amounting to culpable homicide. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, but without the intention to cause injury or knowledge that injury will be caused. It is only breaking a positive duty to be careful. Criminality in the case of a rashness lies only in running the risk of doing an act with recklessness and indifference to consequences, a conduct which involves unjustified risk. A rash act is primarily an overhasty act and is opposed to a deliberate act. Negligence is the genus, of which rashness is the species. In rashness, there may be the consciousness that the mischievous or illegal consequences may follow, but the act is done with the hope that they will not. In negligence, even that consciousness is absent. Negligence is acting without awareness that harmful or mischievous consequences will follow, but, in circumstances which show that if the actor exercised caution incumbent upon him, he would have had the awareness of the consequences of the act. Negligence is conduct which wilfully falls below the standard for protection of others against unreasonable risk of harm. It is breach of duty imposed by law.

Learned trial Judge has not properly understood the distinction between killing by rash or negligent act and culpable homicide not amounting to murder. That is why, when the charge was only u/s 304, he convicted the accused u/s 304A. Section 304A cannot apply when intention to cause death or knowledge that the act done will likely or in all probability cause death is there. Section 304A applies only in cases where death is caused without any such intention or knowledge by what is described as a rash or negligent act. When there is voluntary commission of an offence against a person, Section 304A has no application. This is clear from the words "not amounting to culpable homicide". Requirement of Section 304A is that the rash or negligent act without mens rea was the proximate and efficient cause of death. In other words, there must be proof that the rash or negligent act'' was the causa causans. It is not enough if it is the causa sine qua non, without which the result would not occur. What is involved in this case is a positive overt act done with mens rea against a particular Individual. It is not a rash or negligent act. Causa causans, which is the proximate and efficient cause, is the last link in the chain of causation, whereas causa sine qua non, which is necessary for culpable homicide, is the cause without which the result cannot occur.

Conviction for an offence u/s 304A cannot be justified for the further reason that there was no charge. This is not a case coming u/s 215 of the Code of Criminal Procedure, which involves error in stating either the offence or the particulars which has not misled the accused or did not occasion failure of justice. The matter cannot come u/s 222 of the Code of Criminal Procedure also. Offences under Sections 304 and 304A are independent offences. Section 304A is not a minor offence constituting only some of the several particulars necessary for constituting the offence u/s 304. On the other hand, the particulars of the offence u/s 304 will exclude the offence u/s 304A. When a person is charge sheeted and tried for having committed culpable homicide alone, he could be convicted for an offence punishable u/s 323 or 324 without charge for these offences because some of the several particulars necessary to constitute culpable homicide are enough to constitute Section 323 or 324. But that is not the case with Section 304A. In a charge u/s 304, the accused is not called upon to answer any rash or negligent act done without mens rea, which resulted in death. Therefore, conviction u/s 304A must go for that reason also, in addition to the fact that no rash or negligent act is involved.

Contention that from the proved facts an offence u/s 323 is not disclosed cannot stand Hurt, as defined in Section 319, is causing bodily pain, disease or infirmity. It cannot be said that the voluntary act of, pushing from the varamba and the fall into the paddy field; which was known to be the result, will not cause pain or infirmity. The offence committed by the Appellant squarely falls u/s 323 of the Indian Penal Code Conviction for that offence must stand - Sentence awarded is not unreasonable.

Criminal appeal is partly allowed. Conviction of the Appellant, for the offence punishable u/s 304A of the Indian Penal Code, and the sentence of rigorous imprisonment for one year are vacated, and the Appellant is acquitted of that offence. Conviction, for the offence u/s 323 of the Indian Penal Code, and the sentence of rigorous imprisonment for three months are confirmed and the appeal is dismissed to that extent.