Person Driving Without License Has Knowledge That Act Likely To Cause Death: Kerala HC Refuses To Modify Conviction From S.304 To 304A IPC

The Kerala High Court has held that when there is knowledge to the accused that the act he has done is likely to cause the death of a person and with the said knowledge he does the act and in consequence thereof the person dies, it will fall under Section 304 Part II IPC.

Justice A Badharudeen, while distinguishing between offences falling under Section 304A and Section 304 Part II IPC observed that when intent or knowledge is the direct motivating force of the act, Section 304A of IPC has to make room for the graver and more serious charge of culpable homicide.

 The law is clear on the point that when there is knowledge to the accused that the act he had done is likely to cause death of a person and with the said knowledge he had done the act and in consequence thereof the person died, it will be definitely a case falling under Section 304 Part II of I.P.C.

However, the Senior Public Prosecutor, Advocate Denny Devassy, submitted that the 2nd accused had authorised the 1st accused, who had a deformity on his left hand and who did not possess a valid driving licence, to drive the bus, which resulted in the death of 5 people and serious injuries to 63 persons. Therefore, the knowledge contemplated under Section 304 Part II r/w 34 of IPC is well attracted on the part of both the accused since the witnesses gave evidence to the effect that the high speed of the vehicle had resulted in the accident. 

Answering the question as to whether the offence committed by the accused persons falls under section 304A or 304 Part II IPC, the court opined that it is necessary to look into the ingredients that make up each section. The court relied heavily on the Supreme Court decision in Alister Anthony Pareira v. State of Maharastra, wherein it was observed that: 

Referring to Alister Anthony Pareira v. State of Maharashtra, State Tr. PS Lodhi Colony New Delhi v. Sanjeev Nanda and a number of other Supreme Court decisions, the court observed that it is clear on the point that when there is knowledge to the accused that the act he had done is likely to cause the death of a person and with the said knowledge he had done the act and in consequence thereof the person died, it will fall under Section 304 Part II IPC. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide.

Justice Badharudeen observed that the ingredients to constitute an offence punishable under section 304 part II of IPC are the following:

(i) The act was done by the accused;

(ii) the said act of the accused caused death

(iii) the said act was done with the `knowledge' that it is likely to cause death.

Furthermore, the court also held that the ingredients to constitute an offence under Section 304A of IPC, the ingredients of Section 299 or Section 300 of IPC are totally excluded and the said offence includes rash or negligent act or the said act of the accused if caused death and the said act was done without intention or knowledge likely to cause death.

On oral re-appreciation of the evidence, the court held that the lower court has rightly entered the conviction under section 304 Part II r/w 34 IPC.

While considering the question regarding the proper sentencing the court opined that one of the prime objectives of the criminal law is the imposition of an appropriate, adequate just and proportionate sentence, commensurate with the nature and gravity of the crime and the manner in which the crime is done. The court while reiterating the five principles that have been evolved by the courts in the matter of sentencing, observed that: