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[Citation : 2011(4) RLW 3065 (Raj.)]
(Rajasthan High Court)
Jaipur Bench
Abdul Kalam Musalman & Ors. Vs. State of Raj. (Chauhan, J.)
HON'BLE R.S. CHAUHAN, J.
Abdul Kalam Musalman & Ors.
Versus
State of Rajasthan
S.B. Criminal Revision Petition No.1276 of 2010, decided on 10.12.2010
¼d½ n.M lafgrk] /kkjk 299] 304 ,oa 304-d lifBr na-iz-la-] 1973] /kkjk 228 & ^^mrkoykiu** ,oa ^^ykijokgh** & /kkjk 304 ,oa 304-d esa vUrj & vk'k; ,oa Kku & Hkk-na-la- dh /kkjk 304 esa —R;ksa ds ifj.kkeksa ds ckjs esa tkudkjh & drkZ ;g vk'kk djrk gS fd ifj.kke ugha gksaxs & vfHkfu/kkZfjr & /kkjk 304 ,oa 304-d ds Kku dk rRo rks lk>k gksrk gS ysfdu ^^Kku** dk foLrkj ,oa ifjf/k bldh iz—fr esa fHkUu fHkUu gksrh gS & —R; Kku ls fd;k x;k ysfdu mlds ifj.kkeksa dh mis{kk djrs gq, fd;k x;k] vr% ;g ekeyk ^^mrkoysiu** 'kCn dh ifjHkk"kk ds rgr vkrk gS & izkFkhZ dks /kkjk 304-d ds rgr vijk/k gsrq vkjksfir fd;k tk ldrk gS rFkk mls Hkk-na-la- dh /kkjk 304 ds rgr vkjksfir ugha fd;k tk ldrkA ¼in la- 19½
(b) Cr.P.C., 1973, Sec. 228 and Sec. 216 — Framing of charge — Modification in the charges — Powers of trial Court to subsequently modify the charge or to punish the accused for lesser crime is not true — The accused has to be informed to exact case which he likely to face, and which he is required to meet out — Held — Charges have to be framed carefully, they cannot be framed vaguely — Trial Court has to consider the parameters of the provisions of law and to see under which section the offence is committed. (Para 20)
Petition partly allowed.
¼[k½ na-iz-la-] 1973] /kkjk 228 ,oa /kkjk 216 & vkjksi fojfpr djuk & vkjksiksa esa mikUrj.k & i'pkr~orhZ vkjksi mikUrfjr djus ;k de vijk/k gsrq nf.Mr djus dh fopkj.k U;k;ky; dh 'kfä lgh ugha gS & vfHk;qä dks Bhd mlh ekeys ds ckjs esa lwfpr djuk gksrk gS fd ftldk mls lkeuk djus dh lEHkkouk gksrh gS rFkk ftldk mls eqdkcyk djuk vko';d gksrk gS & vfHkfu/kkZfjr & vkjksi lko/kkuhiwoZd fojfpr djus gksrs gS] mUgsa vLi"V :i ls fojfpr ugha fd;k tk ldrk & fopkj.k U;k;ky; dks fof/k ds izko/kkuksa ds ekin.Mksa ij fopkj djuk gksrk gS vkSj ;g Hkh lqfuf'pr djuk gksrk gS fd vijk/k fdl /kkjk ds rgr fd;k x;k gSA ¼in la-20½
;kfpdk va'kr% Lohdkj dhA
2. The brief facts of the case are that on 28.08.2010, a FIR, FIR No.144/2010, was registered at Police Station Dooni, District Tonk for offences under Section 304 IPC, read with Section 4/21 of M.M.D.R. Act against the accused petitioners. After registration the of FIR, the investigation commenced. After investigation and after arresting the accused persons, a charge-sheet was filed before the learned C.J. (J.D.) & J.M. Deoli, District Tonk under Section 304 Part-I, 120 IPC and 4/21 of M.M.D.R. Act. Thereafter , the matter was transferred to learned Additional Sessions Judge, Fast Track, Tonk. Vide order dated 26.11.2010, the learned Judge framed the charges, as aforementioned, against the petitioners. Hence, this petition before this Court.
3. The learned counsel has vehemently contended that it is a case where according to the complainant certain provisions of the M.M.D.R., Act were not followed. Secondly, there is a clear-cut distinction between Sections 304 and 304A IPC. Section 304 IPC deals with punishment for culpable homicide. Section 299 defines the term “culpable homicide”. Culpable homicide entails the existence of “intention and knowledge”, whereas Section 304A speaks of death by “rashness and negligence”. In criminal jurisprudence, there is a wide difference between “intention and knowledge”, on the one hand, and “rash and negligence”, on the other hand. Although rashness contains an element of knowledge, but in rashness despite having the knowledge of the consequences, the act is still done. At worse, even if knowledge were to be attributed to the petitioners, they may have had the knowledge of the consequences, but they have ignored the consequences. Therefore, the case falls under the category of “rashness”. Hence, they would be liable under Section 304A and not under Section 304 IPC. Thirdly, illustration “C” of Section 299 IPC clearly describes when “an act does not amount to culpable homicide”. According to the said illustration, if a person intends to do a particular act, while doing that act, unfortunately a death is caused, he cannot be held liable for culpable homicide. In the present case, the intention of the petitioners was not to kill the labourers. Their intention, in fact, was to carry out the mining operation. Unfortunately, while carrying out the mining operation, few labourers lost their lives. Since the intention was to carry out mining operation, and not to cause the death of the labourers, clearly the present case falls under illustration “c” of Section 299 IPC. Therefore, the act allegedly done by the petitioners does “not amount to culpable homicide”. Since the act does not amount to culpable homicide, it cannot fall within Section 304 IPC. Thus, it is clearly covered by Section 304A IPC and not by Section 304 IPC.
4. On the other hand, Mr. Javed Chaudhary, the learned Public Prosecutor, has strenuously contended that at the time of framing of the charges, the learned Judge should have framed the more grave charge of Section 304 IPC. If during the course of trial, the learned Judge comes to the conclusion that the charge should be reframed, under Section 216 Cr.P.C. he has the power, to reframe the charge. Moreover, he can always convict the accused persons for lesser offence.
5. Heard the learned counsel for the parties and perused the impugned order.
This case raises an interesting legal issue with regard to the distinction between Section 304 IPC and Section 304A IPC.
Section 304 IPC is as under :
Section 304. Punishment for culpable homicide not amounting to murder –
Whoever commits culpab
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