Culpable homicide charges were unfounded due to lack of intent or knowledge; only negligent conduct applicable under Section 304A IPC.

O R D E R

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The revision petitioner is aggrieved by the dismissal of his application for discharge under Section 227 Cr.P.C.

2. The petitioner is the accused in SC No.87/2020.

In the said case, the prosecution alleged that on 03.07.2018 at about 1.45 am, in front of the Private Bus Stand, Nagampadam, Kottayam, the petitioner/accused on account of his rash and negligent driving of motorcycle bearing registration No.KL-05AR-6350, that too at enormous speed, hit against a Police Constable attached to the Kottayam East Police Station, who was engaged in night patrol duty and caused his death. The petitioner was chargesheeted for offences punishable under Sections 279 and 304 IPC .

3. The petitioner filed Crl.M.P.2833/2022 stating that there is absolutely no reason to frame charge against him under Section 304 IPC . Since he had no knowledge that his act would cause the death of the deceased, the charge under will not stand against the petitioner. The Additional Sessions Judge held that the petitioner drove the motorcycle in a rash and negligent manner at high speed at night and hit a Police Officer who was discharging his official duties. A prudent man never drives a vehicle at a high speed especially at night. The knowledge of the accused under Section 299 is a question of fact. It can be ascertained at trial only. The Additional Sessions Judge dismissed the Crl.M.Application for discharge as per order dated 09.01.2023. It is against the said order dated 09.01.2023 that the petitioner has filed the Criminal Revision Petition invoking Sections 397(1) and 401 Cr.P.C.

4. The counsel for the revision petitioner urged that the petitioner did not drive the motorcycle rashly or negligently. Assuming that there is rash and negligent driving, only an offence under Section 279 IPC can be alleged to have been committed by the petitioner. Even if such negligent driving results in death, only an offence under Section 304 A can be alleged. A provides that whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either destruction for which may extend to two years or with fine or with both. When the Indian Penal Code provides for a specific offence and punishment for causing death by doing any rash or negligent act not amounting to culpable homicide, the prosecution is not justified in charging the petitioner under . The petitioner is therefore entitled to get discharge as far as the offence under is concerned.

5. Relying on the judgment of the Apex Court in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja and others [ AIR 1990 SC 1962 ], counsel for the petitioner argued that all that is called upon to consider at the stage of discharge is whether there is sufficient ground to frame the charge and for this limited purpose, the court must weigh the materials on records as well as the documents relied on by the prosecution. In the case of the petitioner, there is no material to show that the petitioner has caused death by doing an act with the intention of causing death or with the intention of causing such bodily injury as he is likely to cause death, or with the knowledge that he is likely by such act to cause death. Therefore, charge under Section

304 IPC is unsustainable.

6. The counsel for the petitioner pointed out that in somewhat similar circumstances the Hon'ble Apex Court in the judgment inMahadev Prasad Kaushik v. State of U.P. and another [AIR 2009 SC 125] has held that no summons could have been issued by the trial court against the appellant for an offence punishable under Section 304 IPC .

7. The counsel for the petitioner also relied on the judgment of this Court inRaju P.M. v. State of Kerala and others [2021 (1) KLD 811] and argued that a mere knowledge that there is a possibility of accident is not the required knowledge contemplated under Section 304 IPC to bring home a case of culpable homicide. In view