In a hit-and-run case, the prosecution must prove that the accused had the knowledge that his act could cause death in order to secure a conviction under Section 304-II IPC.

Indrajit Chatterjee, J.

1. This is an application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 in which the de facto complainant of Taltala P.S. Case No.159 dated 12/05/2010 under Sections 279/338/304-II of the Indian Penal Code has assailed the order passed by the learned 1st Additional District & Sessions Judge, Fast Track Court-1, Calcutta as passed on 14/03/2013 in Sessions Case No. 41 of 2011 wherein the said court was pleased to direct that the accused motor cyclist was to be tried in respect of the offence punishable under Section 279/304A and not under Section 279/304-II of the Indian Penal Code and sent back the case record to the learned Chief Metropolitan Magistrate, Calcutta invoking the jurisdiction under Section under Section 228 (a)(1) of the Code of Criminal Procedure for disposal of the same in accordance with law after framing of charge under Section 279 and 304A of the Indian Penal Code. The de facto complainant has been prejudiced by this order as the learned trial court was not pleased to frame charge against the accused under Section 304-II of the said Code.

2. It is the contention of Mr. Bhattacharya, learned Advocate, appearing on behalf of the petitioner that earlier as per orders dated 22.9.2011 and 14-01-2013, the same court was pleased to frame charge against the accused for the offence punishable under Sections 279/304-II of the Indian Penal Code basing on the same material available before the said court. He further submitted that in the meantime, after the order dated 14/01/2013 was passed, one revisional application was preferred by the accused which was registered as C.R.R. No.332 of 2013 and this court as per order dated 05/02/2013 was pleased to set aside those two orders and directed the learned trial court to reconsider the matter after giving hearing the parties.

3. Mr. Bhattacharya submits by taking me to the statements of the two witnesses namely, Rajesh Kumar Gupta and Tapan Kumar Kar Chowdhury recorded under Section 161 of the Code of Criminal Procedure by the Investigating Officer to convince this court that the motor cyclist was running at a very high speed and knocked down the victim and that is enough ingredient to convince this court that actually there was knowledge on the part of the accused that the act which he was doing was enough to cause death of a human being as contemplated under Section 299 of the Indian Penal Code. He further submitted that actually the motor cyclist was not authorized to come from south to north on the A. J. C. Bose Road and as such, it is not just one hit and run case and the accused had enough knowledge regarding the outcome of the accident.

4. He relied upon one judgement of the Apex Court as reported in (2012)1 SCC (Cri) 953 (Alister Anthony Pareira Vs. State of Maharashtra) to convince this court that there was knowledge on the part of the motor cyclist regarding the outcome of the accident.

5. He also cited one Single Bench decision of the Orissa High Court as reported in 1994 Cri L J 378 (Bhramarbar Prusty and Anr. Vs. State of Orissa) wherein the accused gave a blow to the victim on his head and that was enough to convince the Single Bench of that court to say that it was a case under Section 304-II of the Indian Penal Code.

6. He also cited one decision of this court as reported in 1989 Cri L J 255 (Rajendra Singh Sethia Vs. The State and Ors.) - one case under Sections 420/419/468/471 of the Indian Penal Code wherein the court observed that once the charge has been framed that cannot be altered without recording any evidence.

7. It is submitted by Mr. Keshri, learned Advocate, appearing on behalf of the accused that it is not a case to come under the purview of Section 304-II of the Indian Penal Code and the court rightly directed that the accused is to be tried under Sections 279/304A of the Indian Penal Code. He submitted that earlier the orders passed by the learned trial court cannot be treated to be on record as