'Roads Ordinarily Deserted At Night, Likelihood Of Causing Death By Accident Less': Kerala HC Modifies Charge Against Biker From 304 IPC To 304A IPC

Justice N. Nagaresh observed that knowledge and intention of causing an accident or death could not be presumed in this case and thus the accused would have to be tried for offence under Section 304 A of IPC.

“The petitioner was riding the motorcycle during night hours and at about 1.45 am when ordinarily roads will be deserted...There is no allegation that the petitioner had any intention to cause death of the deceased. The petitioner's offence would clearly fall within the ambit of Section 304A IPC. In the circumstances, I am of the view that the petitioner ought to have been charged under Section 304A IPC instead of Section 304 IPC. The rejection of the application for discharge as far as Section 304 IPC is concerned is therefore unsustainable.”

Court heavily relied on Alister Anthony Pareira v. State of Maharashtra (2012) where dealing with the scope of Section 304 IPC, the Apex Court held that the question whether the accused had the knowledge that he would cause death of others while driving a motorcycle ought to be decided on the basis of facts of the case.

In the present case the Court observed,

"The question is whether the petitioner had knowledge that he is likely to cause death by riding the motorcycle in rash and negligent manner. It is to be noted that the petitioner was driving the motorcycle during midnight time at 1.45 am. The roads will be ordinarily deserted during that time and therefore the likelihood of causing death by accident is far less. The petitioner was not driving the motorcycle during day time or during busy hours."

Section 304 IPC provides punishment for culpable homicide not amounting to murder. Section 304A IPC provides for punishment for causing death by negligence.

The Revision Petitioner had approached the Court aggrieved by the dismissal of his application under Section 227 of CrPC for discharge under Section 304 IPC.

The prosecution alleged that the petitioner, while driving a motorcycle recklessly and negligently at high speed, collided with a police constable on night patrol duty, resulting in the constable's death

The petitioner was allegedly charged under Sections 279 and 304 of IPC. He filed an application arguing that there was no reason to charge him under Section 304 IPC, which was dismissed by the Additional Sessions Court.

The Counsel for the revision petitioner Advocates Tom Jose, Sunny Joseph and K.T.Sebastian submitted that even if rash and negligent driving resulted in death, it would only attract an offence under Section 304A and not under Section 304 IPC. They argued that the charges should be reduced to Section 304A or Section 279 as there is no evidence of intention to cause death. They cited the need for circumstantial evidence to establish knowledge.

On the other hand, Public Prosecutor M.P. Prasanth opposed the revision petition, emphasizing that reckless and negligent driving led to the constable's death. He cited the presumption regarding knowledge as per the Supreme Court's judgment in Alister Anthony Pareira v. State of Maharashtra.

The Court found that the Additional Sessions Court rejected the application for discharge stating that a prudent man never drives a vehicle at a high speed especially at night. Sessions Court further said whether the incident would attract culpable homicide not amounting to murder was a question of fact and can be determined only during the trial.

The Court noted that the charges against the petitioner should be under Section 304A, which covers death resulting from rash and negligent acts, rather than Section 304, which requires knowledge or intent to cause death.

“Section 304A IPC provides that 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. There is no doubt that on the facts of the case, offence under Section 304A IPC will be attracted.”

The Court stated that to attract an offence under Section 304 IPC, there must be an intention to cause death or an intention of causing bodily injury as was likely to cause death or knowledge that he was likely to cause death by such act. It found that in the facts of the case, there was no allegation that the revision petitioner had any intention to cause an accident or death.

Accordingly, the Court noted that the charges against the petitioner should be under Section 304A, rather than Section 304 IPC, which requires knowledge or intent to cause death.

Citation: 2023 LiveLaw (Ker) 519

Case title: Finil Biju V State of Kerala

Case number: Crl.R.P. No.136/2023

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