Charges under Sections 279, 338 IPC and 304A IPC established; intent for Section 304 IPC not proven.

ORDER

This Revision is filed against the order dated

25.11.2022 of the Assistant Sessions Judge, Chavakkad in C.M.P. No.24/2021 in S.C. No.554/2019. It is an order passed by the learned Assistant Sessions Judge in an application filed by the petitioner for discharge under Section 227 Cr.P.C. The petitioner was charge sheeted alleging offences punishable under Sections 304 and 338 of the Indian Penal Code . 2. The prosecution case is that, on 26.11.2018, Muhammed Nisam, S/o. Moidu came to the Vadakkekad Police Station and launched a complaint. It is stated that, at 4 pm, he, his brother Noufal, friends Musabir, Asarjan, Asharaf and Rafeek were standing near on the west of the National Highway road near Andathode Panchayath ground. At that time, a pick up van came in over speed from the west. On seeing the vehicle, he, Ashraf and Rafeek ran away. However, the vehicle hit Noufal, Musabir and Aharjan. They sustained severe injuries. Immediately, they were taken to Raja Hospital. Noufal died from the Hospital. Other two were taken to Aswini Hospital. According to the prosecution, the driver of the van after knowing fully well that an accident will take place if the vehicle is driven in such a speed drove the same in high speed. Hence it is alleged that the accused committed the offence under Sections 279 and 304 IPC .

3. During the pendency of the investigation, Musabir also died on 02.05.2018. Aharjan sustained grievous injury. After completing the investigation, a final report was filed under Section 173(2) Cr.P.C. before the Judicial First Class Magistrate Court, Kunnamkulam under Sections 338 and 304 IPC . The case was committed to the Sessions Court and the petitioner appeared before the Sessions Court, and filed an application for discharge. The same was dismissed as per the impugned order. Hence this Criminal Revision Petition is filed.

4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor.

5. It is an admitted fact that the accused, on the one hand, and the victims, including the deceased, were strangers. it is also an admitted fact that it is a road traffic accident. The prosecution alleged that the offence under Section 304 IPC is made out. To attract the offence under , certain ingredients are to be attracted.

Section 304 IPC is extracted hereunder:

“304. Punishment for culpable homicide not amounting to murder.—

Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.”

6. The culpable homicide not amounting to murder will come in certain situation which is clearly mentioned in the Indian Penal Code . In this case, an accident happened. Prima facie there is evidence to show that the action of the accused was rash and negligent. Section 304A IPC reads like this:

“304A. Causing death by negligence.—

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 description for a term which may extend to two years, or with fine, or with both.”

7. I am of the considered opinion that, prima facie the offence under Sec