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Judgment
By way of the present petition filed under Section 482 of the Code of Criminal Procedure, 1973, read with Articles 226 and 227 of the Constitution of India, the petitioner seeks a limited prayer challenging the invocation and inclusion of Section 304 of the Indian Penal Code, 1860 (IPC) in FIR No.11214031220016 of 2022, registered with Mahuva Police Station, District Surat Rural, on 03.01.2022, for offences punishable under Sections 279 and 304 of the IPC and Sections 134, 177 and 184 of the Motor Vehicles Act, 1988.
Facts as narrated in the FIR are as follows:
“I am appearing in person to record and state the facts of my complaint as follows: I reside with my family at the above-mentioned address and earn a livelihood for myself and my family by working as a driver at the Bardoli S.T. Depot. My family consists of myself, my wife Manisha, my father, my mother Jamnaben, and my two children—my elder daughter Riddhi (aged 11 years) and my younger son Pavankumar (aged 7 years, the deceased in this case). Today, being my day off, I did not go to work and was present at home. Both my children study in Dungri village; my elder daughter Riddhi (11) studies at the main school in Dungri and left for school on our bicycle around 10:00 AM. My younger son Pavankumar (7) attends the lower primary section school in Dungri, so my relative, Savanbhai, went to drop him off at school on his motorcycle. Thereafter, at around 5:30 PM in the evening, my brother Rajubhai Parbhubhai Chaudhari came to my home and informed me that after school hours, my elder daughter Riddhi (11) had picked up her younger brother Pavankumar (7) from his primary school section, and they were returning home together on the bicycle. At that time, opposite the house of Mukeshbhai Piljibhai Chaudhari located at Jhab Faliyu on the Kareliya–Buhari road, the driver of a silver-colored Brezza four-wheeler bearing registration number GJ-26-N-9998—despite being aware that the surrounding area consists of a school and residential zone with frequent movement of schoolchildren and local residents—drove his vehicle at full speed and in a rash manner, colliding with the bicycle carrying my children. Upon learning about this incident, I immediately rushed to the scene, where local residents had already gathered. My son had sustained severe injuries to his head; therefore, I brought him to the Karcheliya Government Hospital in a private vehicle, where the doctor on duty examined him and declared that he had passed away before medical treatment could be administered. Therefore, the driver (whose name and details are unknown to me) of the silver-colored Brezza four-wheeler bearing registration number GJ-26-N-9998 drove his vehicle at excessive speed and in a negligent manner—knowing full well that the area surrounds a school and residential zone with regular movement of children and residents—striking my children as they returned home from school on a bicycle. This resulted in severe bodily and head injuries to my son, Pavankumar Alpeshbhai Chaudhari, who was riding on the back, causing his death. I hereby file this formal complaint against the driver of the said four-wheeler to initiate legal proceedings in accordance with the law. The above details represent the true facts of my complaint.”
Learned Advocate Ms. Kruti M. Shah for the petitioner submitted that even if the prosecution case is taken at face value, no prima facie case under Section 304 IPC is made out and has made following submissions:
There was neither any intention to cause death nor any knowledge that the driving was likely to cause death. At most, the alleged act constitutes rash and negligent driving punishable under Section 304A IPC.
There was no direct collision between the two vehicles; the school bag of the deceased merely came into contact with the side mirror of the petitioner's vehicle, following which the car went off the road and was damaged in an effort to avoid the accident.
The accident occurred approximately 1.5 kilometers away from the school premises, rendering the allegation of driving dangerously in an immediate school zone unsustainable.
There is no allegation or material on record to suggest that the petitioner was driving under the influence of liquor or in a drunken condition.
Section 304 IPC has been invoked solely to make the offence graver and non-bailable.
To support these contentions, learned advocate Ms. Shah for the petitioner relied on following judgments:
Dalapatbhai Rameshbhai Vasava v. State of Gujarat, 2020 (0) AIJEL-HC 242195.
Naresh Giri v. State of Madhya Pradesh, (2008) 11 SCC 76 / 2007 (0) AIJEL-SC 40051.
State of Gujarat v. Haidarali Kalubhai, (1976) 1 SCC 889 / 1976 (0) AIJEL-SC 27692.
Yunusbhai Anwarbhai Karodia v. State of Gujarat, 2018 (0) AIJEL-HC 238752.
Per contra, the learned Additional Public Prosecutor Mr. Rohan Shah for the State and the learned Advocate for the complainant Mr. Divyang A. Ramani opposed the petition on the following grounds:
The High Court, while exercising jurisdiction under Section 482 Cr.P.C., cannot conduct a "mini-trial" or weigh disputed factual matters at the threshold stage.
The panchnama reflects that the spokes/fan of the rear wheel of the bicycle were damaged, and the petitioner’s Brezza car suffered substantial damage and turned turtle after the accident.
As per the statement of the deceased's mother (based on information provided by the surviving daughter, Riddhi), the Brezza car was driven at an excessive speed, something got stuck in the car, and the child was dragged under the wheel of the car, leading to his death.
The accused driver fled the scene immediately after the collision without rendering medical assistance.
Therefore, it was urged that whether the petitioner possessed "knowledge" under Section 304 IPC is a matter of trial.
Having consideration the rival submissions advanced by learned advocates for the respective parties, carefully scrutinized the contents of the FIR and papers of charge sheet and thoroughly analysed the principles of law established in the cases cited at the Bar.
At the outset, it is necessary to address the contention raised by the learned Additional Public Prosecutor and the learned advocate for the complainant regarding the maintainability of this petition. It was vehemently argued that this Court, while exercising inherent jurisdiction under Section 482 of the Cr.P.C. or extraordinary jurisdiction under Articles 226/227 of the Constitution of India, ought not to undertake a "mini-trial" or weigh disputed questions of fact at the threshold.
While there is no quarrel with the settled proposition that the High Court cannot appreciate or weigh evidence as a trial court would, it is equally an undisputed legal principle that if the uncontroverted allegations made in the FIR and the material collected during investigation, accepted at face value, do not disclose the essential legal ingredients of a grave offence like Section 304 IPC, permitting the inclusion of such an offence constitutes a flagrant abuse of the process of court. The Court cannot remain a silent spectator when a routine motor accident case arising out of alleged rashness or negligence is converted into an offence of culpable homicide without the requisite mens rea. Therefore, examining whether the basic ingredients of Section 304 IPC are prima facie made out from the charge-sheet material does not amount to a mini-trial, but is a mandatory duty cast upon this Court to prevent injustice.
To ascertain whether Section 304 IPC could be validly invoked in the present case, it is essential to analyze the statutory line of demarcation between Culpable Homicide not Amounting to Murder (Section 304 IPC) and Causing Death by Negligence (Section 304A IPC):
Section 304 IPC requires the presence of either an intention to cause death/bodily injury likely to cause death (Part I) or the knowledge that the act performed is so imminently dangerous that it is likely to cause death (Part II). Such "knowledge" is not a vague or abstract concept; it denotes a direct, conscious state of mind where the offender is fully aware of the certainty or overwhelming probability of fatal consequences arising directly from his act.
Section 304A IPC, on the other hand, explicitly applies to cases where death is caused by doing any rash or negligent act without the intention to cause death and without the knowledge that the act is likely to cause death. Rashness implies doing an act with recklessness or indifference to consequences, whereas negligence denotes a breach of duty to take care.
The crucial distinguishing factor between Section 304 IPC and
Section 304A IPC is the mental state (mens rea) of the accused. Culpable homicide requires that "knowledge" or "intent" must be the motivating force driving the act. In ordinary road accident cases involving motor vehicles, unless there are extra-ordinary, deliberate, or aggravating circumstances (such as intentionally ramming a vehicle to commit murder, or driving while heavily intoxicated with clear awareness of inability to control the vehicle), the mental element remains confined to rashness or negligence, which falls strictly within the four corners of Section 304A IPC.
The legal position governing the application of Section 304 IPC versus Section 304A IPC in vehicular accidents has been authoritatively laid down and consistently reiterated in the four judgments relied upon by the petitioner:
In Yunusbhai Karodia (supra), this High Court exhaustively analysed the distinction between Section 304 Part II and Section 304A IPC. The Court observed that Section 304A IPC was specifically carved out by the legislature to cover cases where death results from a rash or negligent act devoid of intention or knowledge. The Court held that to attract Section 304 IPC in a driving case, the prosecution must show that the accused was conscious of taking a known risk where injury or death was the most probable outcome, yet proceeded with complete disregard. Mere high speed, failure to apply brakes, or loss of control on a public road, without specific evidence of intentional or knowing hazard, remains within the realm of Section 304A IPC. Under Section 304A IPC the essence of criminal liability is culpable rashness or negligence and not any rashness or negligence. The Court accordingly quashed the charge under Section 304 IPC.
In Naresh Giri (supra), the Hon'ble Supreme Court dealt with an incident where a train engine struck a bus at an unmanned railway crossing, resulting in multiple fatalities. The trial court had framed charges under Section 304 IPC. Reversing the decision, the Apex Court held that every rash or negligent act that results in death cannot be automatically elevated to culpable homicide. The Supreme Court ruled that where the element of intention or knowledge is absent, the offence falls squarely under Section 304A IPC, and framing a charge under Section 304 IPC is legally unsustainable.
In Haidarali Kalubhai (supra), the Apex Court examined a case where a motor vehicle was driven at high speed into an open field and hit a cot on which a person was sleeping, causing death. The High Court had altered the conviction from Section 304 Part II to Section 304A IPC. Affirming the alteration, the Supreme Court held that loss of control by the accused of the vehicle in high speed trying to take a run from the kutcha road would no reveal he accused intention or any deliberate act with the requisite knowledge of an offence of culpable homicide under Section 304 Part II IPC unless there is evidence that the driver wilfully drove onto the victim with knowledge of causing death.
In Dalapatbhai Vasava (supra), this High Court considered a similar situation where a motor vehicle was involved in a fatal collision and turned turtle. The Court after referring to the case of State of Karnataka V/s. Satish (1998) 8 SCC 493 held that merely because truck was being driven at a high speed does not bespeak of either negligence or rashness by itself. High speed is a relative term and criminality is not to be presumed subject of course to some statutory exceptions. In absence of any material on record, no presumption of rashness or negligence could be drawn by invoking the maxim ras ispa locutar.
Thus, from the above referred judgments and various judgments of Hon’ble Supreme Court it can be said that Section 304A carves out cases where death is caused by doing a rash or negligent act which does not amount to culpable homicide within the meaning of Section 299 or culpable homicide amounting to murder under Section 300 IPC. Section 304A excludes all ingredients of Section 299 as also of Section 300. Where intention or knowledge is the 'motivating force' of the act complained of, Section 304A will have to make room for graver and more serious charge of culpable homicide amounting to murder or not amounting to murder as the facts disclose. Section 304A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability would cause death. The gravamen of Section 304A is rash or negligent act. Where negligence or recklessness on the part of the doer exists without any intention or knowledge to kill, prima facie Section 304 of IPC has no application. Intent or knowledge to kill a person is to be inferred from the facts of each case. Driving a speeding vehicle and hitting a person or object does not satisfy the ingredients to infer intent or knowledge to kill, as long as the driver did not willfully drive the vehicle onto the victim. In the absence of such a willful act driven by knowledge or intent, the case falls squarely under Section 304A IPC and not under Section 304 Part II IPC.
There are degrees of negligence and rashness, and in order to amount to criminal rashness or criminal negligence, one must find that rashness has been of such a degree as to amount to taking hazard knowing that hazard was of such degree that injury was most likely to be occasioned thereby. Criminality lies in running the risk or doing such act with recklessness and indifference to the consequences. Criminal negligence is gross and culpable neglect, that is to say, a failure to exercise that care and failure to take that precaution which, having regard to the circumstances, it was the imperative duty of the individual to take. When a vehicle is in a moving condition at a certain speed, mere high speed or the fact that the vehicle slipped or turned turtle is not sufficient by itself to connect the accused with the graver crime of culpable homicide. Relying solely on the maxim of 'res ipsa loquitur' without bringing specific ingredients regarding intention or knowledge onto the record cannot sustain a conviction or charge for an offence graver than rash and negligent driving under Section 304A IPC.
Section 304A does not require that the driver had knowledge or intention that his act would likely cause death. Liability attaches where death occurs as the direct and proximate result of a negligent or rash act. Therefore, even without conscious knowledge that high-speed driving could result in death, criminal liability is possible if there is negligence. Merely driving at high speed does not automatically constitute rash or negligent driving. Evidence must show that the speed created a foreseeable risk and that the driver failed to exercise reasonable care under the circumstances. Dangerous overtaking or zig-zag driving, driving under hazardous conditions or while overloading a vehicle, failure to control the vehicle leading directly to an accident or eyewitness and mechanical evidence corroborating loss of control or recklessness are just few examples. Section 304A requires that the negligent act be the immediate and efficient cause of death—not merely one of several contributing factors. Courts distinguish between mere acceleration and acts demonstrating gross deviation from standard care (for example, hitting a pedestrian while failing to observe traffic). High speed without evidence of loss of control, reckless maneuvers, or other hazardous conduct does not suffice to prove rashness or negligence. The prosecution must prove the act caused death beyond reasonable doubt conversely, when high speed is combined with other negligent behaviour, it may meet the threshold for Section 304A (for example, driving a heavy truck in an overloaded or erratic manner leading to a fatality). It cannot be said that excessive speed alone constitutes knowledge or awareness of causing death under Section 304A IPC. Liability arises from a combination of factors showing rashness or negligence that directly results in death. High speed can be one element, but it must be accompanied by circumstantial evidence of loss of control, disregard for safety, or failure to exercise due care. Section 304A is fundamentally an objective standard of negligence, not dependent on the driver’s knowledge of fatal outcome, but excessive speed by itself does not automatically satisfy this standard. Therefore, knowledge of causing death is not an element of 304A, and excessive speed is only relevant when connected with additional negligent acts.
Keeping afore stated principles in mind and turning to the factual matrix and the charge-sheet papers in the present case, a striking and crucial infirmity in the investigation emerges. According to the FIR lodged by the father (Respondent No. 2), his 11-year-old daughter, Riddhi, and his 7-year-old deceased son, Pavankumar, were riding together on the bicycle when the incident occurred. A perusal of the charge-sheet papers reveals that no one has witnessed the actual accident, and the remaining witnesses cited by the prosecution merely rushed to the spot after hearing the sound of the accident impact.
Furthermore, analysing the remaining physical material on record against the parameters laid down in the four cited judgments:
Applying the ratio of the cases refereed by the petitioner the turning turtle of the car demonstrates that the driver lost control while attempting to avoid or negotiate the collision—an act characteristic of high speed and negligence under Section 304A IPC, rather than intentional or knowing running over of a child under Section 304 IPC. This fact has to be seen in light of the fact that deceased was a pillion rider and the bicycle was driven by elder sister – Riddhi who has not suffered any injury, nor is the case of prosecution that she also suffered injuries out of the alleged accident.
Admittedly, there is no medical report, blood sample, or allegation in the charge-sheet indicating that the petitioner was driving under the influence of alcohol or any intoxicant. The absence of intoxication removes another potential factor that could have otherwise indicated gross, conscious disregard of safety attracting penal provisions under Section 304 Part II of I.P.C.
While the prosecution argued that the driver fled the spot without rendering aid, non-compliance with statutory duties post-accident attracts consequences under the Motor Vehicles Act, 1988, but cannot supply the mens rea of "knowledge" required at the time of the collision under Section 304 IPC.
For an act to attract Section 304 Part II I.P.C. in a driving case, the prosecution must prove that the accused was consciously aware of taking a known risk where fatal injury was the most probable outcome, yet proceeded with total indifference. In the present case, the vehicle turned turtle after colliding with the bicycle however, the bicycle is least damaged.
Losing control at high speed demonstrates panic maneuvering or reckless driving (Section 304A IPC), not a conscious, deliberate choice to run over the children under Section 304 I.P.C. "Knowledge" is not a vague or abstract assumption. It requires direct evidence of extraordinary aggravating factors, such as Driving under extreme intoxication with full awareness of inability to control the vehicle or such as intentionally using a vehicle as a weapon or deliberately steering into a crowd or over the victim. Such, evidence prima facie is lacking in the present case.
The informant explicitly avers in the FIR stating that the driver was drove vehicle in "excessive speed" and "in a negligent manner". Under criminal jurisprudence, driving at excessive speed and failing to exercise standard care constitute rash or negligent act under Section 304A IPC.
On a holistic synthesis of the facts and the law. The FIR and charge-sheet material, taken at face value, disclose a tragic motor vehicle accident resulting in the untimely death of a 7-year-old child. However, the essential ingredients of "intention" or "knowledge" required to constitute Culpable Homicide Not Amounting to Murder under Section 304 I.P.C. are completely absent. As held in above referred cases by the petitioner high speed, loss of vehicle control, or severe impact in a road accident fall squarely within the ambit of Section 304A IPC (Causing death by negligence) and cannot be mechanically magnified into Section 304 IPC without considering facts of each case. The failure to record the statement of the direct eyewitness (the deceased's sister) further deprives the prosecution of any factual basis to allege the conscious mental state required under Section 304 I.P.C.
Consequently, invoking and retaining Section 304 I.P.C. against the petitioner is legally unsustainable and constitutes an abuse of the process of law. The petition, therefore, merits acceptance to the extent of quashing Section 304 I.P.C., while permitting the prosecution to proceed under Sections 279 and 304A I.P.C. and the relevant provisions of the Motor Vehicles Act, 1988.
In the light of the detailed judicial reasoning and analysis above, the present application is partly allowed.
The invocation, inclusion, and framing of charges under Section 304 of the Indian Penal Code, 1860 in FIR No.11214031220016 of 2022, registered with Mahuva Police Station, District Surat Rural, and all consequential proceedings arising therefrom, are hereby quashed and set aside.
The Trial Court shall proceed against the petitioner strictly for the offences punishable under Sections 279 and 304A of the Indian Penal Code, 1860, as well as Sections 134, 177, and 184 of the Motor Vehicles Act, 1988, in accordance with law.
It is clarified that the Trial Court shall proceed with the trial for the remaining offences independently on its own merits, based on the evidence adduced during trial, without being influenced by any observations made in this judgment regarding the deletion of Section 304 IPC.
Rule is made absolute to the aforesaid extent. Direct Service is permitted.
ORDER IN CRIMINAL MISCELLANEOUS APPLICATION NO.1 OF 2024
Since the Criminal Misc. Application No.2215 of 2022 is partly allowed, the Criminal Misc. Application for vacating the interim relief does not survive, hence stands disposed of accordingly.