The commission of the offence of culpable homicide under Section 304 (II) IPC requires some positive act on the part of the accused, and mere omissions or negligence cannot constitute the offence.

SHALINI PHANSALKAR JOSHI, J.

1. Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel for both the parties.

2. This writ petition is preferred under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, for quashing of the C.R. No. 230 of 2017, qua the petitioners. The said C.R. is registered with Nerul Police Station, against the petitioners and the co-accused at the instance of respondent No.3, for the offences punishable under Sections 279, 337, 338, 304(A), 304 (II) read with section 34 of the Indian Penal Code.

3. As far as the present petitioners are concerned, they have been booked in the said C.R. for the offence punishable under Section 304 (II) read with 34 of the Indian Penal Code only. Petitioner No.1 is the Vice President, petitioner No.2 is the Assistant Vice President, petitioner No.3 is the Senior Manager and Project Head; whereas the petitioner No.4 is also the Officer of Sion Panvel Tollways Private Limited, which has been awarded a contract for construction of Uran Phata Bridge and the maintenance of Uran Panvel Road.

4. The case of prosecution, as set out in the F.I.R. is to the effect that on 04.07.2017, at about 6.45 a.m., respondent No.3 received wireless message that 4 to 5 vehicles had collided with each other near Uran Phata bridge. Hence respondent No.3 immediately rushed to the spot along with his team. There, he saw that two pick up tempos, two trucks and the motorcycle had collided with each other and met with an accident. The drivers of two pick up tempos and the driver of motorcycle had sustained injuries. They were sent for medical treatment immediately. Respondent No.3 made enquiry with injured motor truck driver and the drivers of other vehicles involved in the accident. It was informed to him that the driver of the truck bearing registration No. MH-11/AAI-5458, namely, Santosh Hanmant Rajput, was driving his truck in a very high speed and his truck dashed into pick up tempo bearing registration No. MH45-T/7775, who in turn dashed into pick up tempo in front of him bearing registration No. MH-13/AN-9324; as well as the motorcycle ahead. During enquiry, it was also brought to the notice of respondent No.3 that the tarcoal was laid on the said bridge in the last summer which has made the bridge slippery. Hence due to improper laying of tarcoal during the month of June, when monsoon had commenced, the bridge had become slippery. Therefore, these vehicles, even when they were going at slow speed, they could not control the speed and as a result the vehicles collided with each other and hence the accident has occurred.

5. As on account of injuries sustained in the said accident, tempo driver, namely, Sarfaraj Ilahi Sayyed died and other two drivers, Keshav Ghadage and Pankaj Thukrul sustained serious injuries, respondent No.3 lodged F.I.R. against the truck driver namely, Santosh Rajpur, for the offence punishable under Sections 304(A), 279, 337, 338 of the Indian penal Code and as regards the petitioners, they were implicated for the offence punishable under Section 304 (II) read with 34 of the Indian penal Code.

6. The submission of learned counsel for the petitioner is that the allegations made in the F. I.R., even if taken at their face value, they do not make out the ingredients of the offence punishable under Section 304(II) of IPC. According to him, in order to constitute the offence under Section 304 (II) of IPC, there has to be some positive act done with criminal intent. No such positive act is attributed to the present petitioners, even there is no avernment that they had any knowledge or intention to cause such accident or the death of vehicle driver. In the absence thereof, it is submitted that, the charge under Section 304 (II) IPC, cannot be attracted at all. In support of his submission, learned counsel for petitioners has relied upon the judgment of the Hon'ble Supreme Court in case of Shantibhai J. Vag