Negligence does not meet the culpable homicide threshold; trial court must determine appropriate charges.

O R D E R

The final report filed by the Inspector of Police, Peramangalam in Crime No.1866/2016 of Peramangalam Police Station, insofar as it relates to the incorporation of the offence under Section 304 I.P.C, is under challenge in this petition filed under Section 482 Cr.P.C by the accused in that case. The aforesaid case is now said to be pending before the Additional Sessions Court-I, Thrissur as S.C No.962/2017.

2. The prosecution case is that the petitioner caused the death of three persons due to the rash and negligent driving of a car through Thrissur-Kunnamkulam State Highway at about 6:15 a.m on 08.10.2016. It is alleged that the vehicle driven by the petitioner rammed into a bus waiting shed where the deceased persons were standing, and caused serious injuries to the deceased persons and others who were there. Accordingly, the investigating agency filed the final report alleging the commission of offence under Sections 279, 337, 338, 304 and 427 I.P.C against the petitioner.

3. In the present petition, the petitioner would contend that the offence under Section 304 I.P.C is not attracted in the facts and circumstances of the case. According to the petitioner, the investigating agency wrongly incorporated the offence under Section 304 I.P.C instead of Section 304A I.P.C, which is the relevant penal provision which would come into play in view of the nature of the allegations levelled against him by the prosecution.

4. Heard the learned counsel for the petitioner, and the learned Public Prosecutor representing the State of Kerala.

5. It is true that the essential ingredient of negligence which would constitute the offence under Sections 279, 337 and 338 I.P.C cannot be reconciled with the mental element of culpability required to constitute the offence of culpable homicide defined under Section 299 I.P.C. To constitute culpable homicide, the offender should have committed the act under any of the following three situations:

i) With the intention of causing death.

ii) With the intention of causing such bodily injury as is likely to cause death.

iii) With the knowledge that, by such an act, the offender is likely to cause death.

6. The knowledge which the offender should have at the time of doing the act mentioned in Clause (iii) above should be of such a degree that by all counts of probability he would have expected death of other persons as the consequence of his act. Normally, the mental state of the offender committing the offences under Sections 279, 337 and 338 I.P.C would be of such a nature that he may not be expecting the untoward consequences which had ensued due to the commission of the offending act. When viewed in the above perspective, it is a matter to be looked into by the Trial Court at the stage of framing of charges as to whether the facts revealed from the prosecution records would bring out the essential ingredients of culpable homicide punishable under Section 304 I.P.C. If, after analysing the prosecution records and after having heard the Public Prosecutor and the defence counsel, the Trial Court finds that the likelihood of death of other persons as a consequence of the offending act was never there in the knowledge of the offender, the proper provision of law under which the offender could be charged would be Section 304A I.P.C. At any rate, it is a matter to be dealt with by the Trial Court at the stage of framing of charges.

7. In the case on hand, the Additional Sessions Judge concerned is yet to frame charges in this case. Since the case has been taken on to files as a Sessions Case, it is incumbent upon the learned Additional Sessions Judge to proceed under Section 250 (2) of the Bharatiya Nag