JUDGMENT

Dr. ARIJIT PASAYAT, J.

1.Leave granted.

2.Challenge in this appeal is to the order passed by a learned Single Judge of the Madhya Pradesh High Court dismissing the criminal revision petition filed by the appellant.

3.Background facts in a nutshell are as follows:On 29.8.2004 bus bearing no. MPO 10588 was going from Ahrauli towards Kailaras. While it was near a railway crossing, an accident took place. A train hit the bus at the railway crossing. In the accident the bus which was being driven by the appellant was badly damaged and as a result of the accident several passengers got injured and two persons namely Bhagoli @ Bhagwati and Ankush died. First information report was lodged by Brijmohan Sharma, Constable. After completion of investigation charge sheet was filed. Charges were framed in relation to the offences punishable under Section 302 and alternatively under Section 304, 325 and 323 of the Indian Penal Code, 1860 (in short the 'IPC'). Questioning correctness of the charges framed, the revision petition was filed. It was the stand of the appellant that Section 302 IPC has no application to the facts of the case. The High Court did not accept the plea. It found no substance in the stand taken by the appellant that he had no intention to kill the passengers. High Court was of the view that on the basis of material available, charges were framed and the intention of the appellant has been gathered when the evidence is adduced.

4.Learned counsel for the appellant submitted that the accident took place near the railway crossing which was un-manned. The materials on record show that the engine of the train hit rear portion of the bus. Ultimately it may have been an error of judgment on the part of the appellant and the fact that the engine hit rear portion shows that there was no apparent negligence on the part of the appellant. Therefore, Section 302 has no application and at the most it may be Section 304-A IPC.

5.In response, learned counsel for the respondent submitted that the fact that the passengers were asking the appellant not to cross the railway line shows that there was negligence and appellant was acting in a rash and negligent manner without proper care and caution.

6.Section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done, in all probabilities, will cause death. This provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A.

7.Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person willfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. 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. When the intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence, a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the cri