The judgment establishes the principle that an accused, with knowledge but without intention to cause death, may be convicted under Section 304 (Part-II) of the Indian Penal Code.

JUDGMENT :

1. I.A. No.4990 of 2022 has been filed for ignoring the surviving defect.

2. In view of the statement made in paragraph 6 of the said I.A., the surviving defect is ignored.

3. Accordingly, I.A. No.4990 of 2022 stands disposed of.

4. Heard Mr. Saurabh Shekhar, learned counsel appearing for the petitioner, Mr. Ravi Kumar Singh, learned counsel for the informant and Mr. Gaurav Raj, learned counsel for the State.

5. This petition has been filed for quashing of order taking cognizance dated 06.07.2021 passed by the learned Judicial Magistrate, 1st Class, Garhwa in Bhawnathpur P.S. Case No.234/2020, whereby, cognizance has been taken under Section 304 (Part-II), 201 read with Section 34 of the Indian Penal Code and under Section 27 of the Arms Act, pending in the court of the learned Judicial Magistrate, 1st Class, Garhwa.

6. The case was lodged alleging therein that on 10.12.2020 at 07:45 a.m., Arvind Kumar Singh (deceased) along with his friend Govind Singh had gone to a marriage at Bhawnathpur on his XUV vehicle along with other friend Awadh Bihari Singh, Vinay Singh who had also accompanied him. When Arvind Kumar Singh did not return from marriage then the informant and his family members tried to find about Arvind Kumar Singh. Thereafter, the informant came to know that in the marriage, guns were fired in the night and one person got injured due to firing and he had been admitted in Sadar Hospital, Daltonganj. It was further alleged that the informant along with Vinit Pratap Singh went to the Hospital to identify the body of the deceased and in the meantime the informant came to know that the vehicle of Arvind Kumar Singh had been parked by somebody in the yard. Then the informant tried to contact Awadh Bihari Singh through phone but he was unable to reach him. The informant alleged that the deceased's friend Awadh Bihari Singh, Vinay Singh and Dhananjay Singh did not inform about the incident and took the deceased (Arvind Kumar Singh) to the hospital and left him there unattended. On the basis of above written report, Bhawnathpur P.S. Case No.234/2020 was registered.

7. Mr. Saurabh Shekhar, learned counsel appearing for the petitioner submits that there was no intention to death. The death is causing by negligence and therefore Section 304-A of the Indian Penal Code is attracted although the learned court has taken cognizance under Section 304 (Part-II) of the Indian Penal Code and being aggrieved with that part only, this petition has been filed. He further submits that the cognizance was required to be taken under Section 304-A of the Indian Penal Code. He also submits that in the postmortem report, the Medical Officer opined that the firearm injury are antimortem in nature cause by firearm, death is due to haemorrhagic shock and as a result of firearm injury. The time of death is 16-24 hours from the time term of postmortem. There is allegation that the petitioner has intentionally fired upon the deceased and Section 304 (Part-II) of the Indian Penal Code was added instead of Section 304-A of the Indian Penal Code. On these grounds, that part of the order is bad in law. He relied upon the judgment passed by the Hon'ble Supreme Court in State through PS Lodhi Colony, New Delhi v. Sanjeev Nanda, [(2012) 8 SCC 450].

8. Paragraph 38 of the said order reads as under:

“38.We may profitably deal with the definition of “reckless” as defined in The Law Lexicon, which reads as under:

“Reckless.—Characterized by the creation of a substantial and unjustifiable risk of harm to others and by a conscious (and sometimes deliberate) disregard for or indifference to that risk; heedless; rash. Reckless conduct is much more than mere negligence: it is a gross deviation from what a reasonable person would do. (Black's Law Dictionary, 7th Edn., 1999)

‘Intention cannot exist without foresight, but foresight can exist without intention. For a man may foresee the possible or even probable consequences of his conduct and yet not desire the