The court clarified that to establish a charge under Section 304 IPC, knowledge of causing death is essential; if absent, then charges under Section 304A IPC may be considered.

O R D E R

The petitioner is the accused in S.C.No. 866 of 2019 on the files of Additional Sessions Court-V, Ernakulam (for short, 'the trial court'), alleging offence punishable under Section 304 of IPC .

2. The prosecution case in short is that, on 02.09.2018 at about 2.15 p.m., the accused drove the bus bearing registration No.KL-63/B-3593, in a rash and negligent manner knowing that the said act would even result in the death of a person, had hit on the defacto complainant's neighbour, from the back side, who was travelling in a motor cycle, and thereafter he succumbed to the injuries.

3. The petitioner appeared before the trial court. He filed an application under Section 227 of Cr.P.C. for discharge as Crl.M.P.No.2133 of 2021. The trial court dismissed the said application as per the order dated 28.12.2021. This criminal revision petition has been filed challenging the said order.

4. Heard both sides.

5. The learned counsel for the petitioner submitted that a perusal of the entire final report would show that there are no sufficient grounds for proceeding against the petitioner and as such, the trial court ought to have allowed the application for discharge. The learned counsel further submitted that the ingredients of Section 304 of IPC are totally absent and even if the entire allegations in the final report are believed in toto, no offence under of is attracted. The learned Public Prosecutor, on the other hand, submitted that prima facie there are materials available on record to attract the ingredients of of and the trial court rightly rejected the application for discharge as per the impugned order.

6. As stated already, the petitioner was driving a bus and it hit against a motor bike driven by the deceased. Going by the prosecution allegations, the petitioner was driving the bus in a rash and negligent manner, knowing that the said act would even result in the death of a person. CW1, who gave FIS, is an occurrence witness. There is one more occurrence witness who has been cited as CW2. I went through their statements as well as the statements of the remaining witnesses. Those statements or any other documents of the prosecution, do not suggest that the petitioner had the required knowledge that driving the vehicle as alleged by the prosecution, was likely to cause death and therefore, the offence under Section 304 of IPC would not be attracted.

7. It is settled that to frame a charge under Section 304 of IPC , there should be material to satisfy that the accused had knowledge that the injuries likely to be inflicted would cause death. If there was no knowledge, Section 299 of is not attracted. Consequently, a charge for the offence under of cannot be framed. Even going by the prosecution case, there is no allegation that the petitioner was having any intention for causing death of the deceased. Also, there is no allegation in the final report that, the petitioner had the knowledge that his act would likely cause death or bodily injury likely to cause death. In the absence of such intention or knowledge, the offence alleged under of cannot be attributed to the petitioner. However, the statements of the witnesses would suggest that the petitioner was driving the bus in a rash and negligent manner and it hit against the motorbike driven by the deceased causing his death. Therefore, it appears that offence under A of is prima facie attracted.

8. For the reason stated above, I am of the view that the trial court went wrong in framing a charge against the petitioner under Section 304 of IPC . Accordingly, the impugned order is set aside. The petitioner is discharged from the offence under of . The trial court is directed to go throug