JUDGMENT

GOSWAMI, J.:—The accused Haidarali Kalubhai was convicted by the Sessions Judge, Mehsana, under Section 304 Part II, Indian Penal Code, and was sentenced to rigorous imprisonment for seven years for causing death of Mahomadali Kasamali. He was also convicted under Sections 326 and 323, I. P. C. and sentenced to rigorous imprisonment for two years and to three months respectively in connections with injuries to two other persons. On appeal to the High Court conviction was altered to one under Section 304A, I. P. C. only and the accused was sentenced to rigorous imprisonment for eighteen months and to a fine of Rs. 500/-, in default rigorous imprisonment for six moths.

2. Briefly the facts are as follows:-

It was usual for the deceased Mahomadali Kasamali, who was the Sarpanch of village Nandasan, to spend some hours of the might from 8.00 P. M. to 11.00 P. M. near the Hotel Shanker Vijay which is situated by the side of the highway from Mehsana to Ahmedabad. There is a big open space in front of the hotel towards the north and a kutcha road branches off from the highway towards Dangarwa. This Kutcha road is almost in the centre of the open space in front of the hotel measuring about 80 feet. It is said that the portion immediately in front of the hotel is about two feet higher in elevation from the kutcha road. On August 23, 1969, the accused came in a tractor and stopped the same on the highway. He saw truck No. GTF 904 which was parked opposite to the aforesaid hotel to Vasudev (PW 7). The owner of the truck hand gone to the village leaving his conductor Usman Imamali (PW 11) in the truck. It is said that the accused used to drive this truck earlier with permission of the truck-owner. This time he used the key of his tractor to start the truck and he drove the same by the oper field in front of 1014 the hotel. He drove the truck with the head lights on in full speed straight on the steel cot on which the deceased was resting with the result that the truck dashed against the cot and the deceased was thrown away to a distance of about ten feet from the cot. Head Constable Ravajit (PW 3) was sitting on the same cot with the deceased and he was also thrown away. There was another wooden cot nearby where Constable Dalpatsingh (PW 4) and Bavdinmiya (PW 5) were sitting. The Head Constable with the other Constable came to meet the Sarpanch in connection with the investigation of a certain case. Since there was enmity between the accused and the deceased on account of Panchayat elections the prosecution case is that the accused wilfully and deliberately drove the vehicle towards the cot with the intention of causing death to the deceased Sarpanch. The accused was originally charged under Section 302, I. P. C. and under Sections 326 and 323, I. P. C. with the result mentioned above. Hence this appeal by the State by special leave against the judgment of the High Court.

3. The question that arises for consideration is whether the facts that are established against the accused fulfil the ingredients of Section 304 Part II as submitted by Mr. Debabrata Mukherjee on behalf of the State. According to the learned counsel this is a clear case under Section 304 Part II and conviction under Section 304A is unsustainable.

4. Section 304A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299. I. P. C. or murder under Section 300. I. P. C. If a person wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Each case will, therefore, depend upon the particular facts established against the accused.

5. The prosecution in this case wanted to establish a motive for committing the offence against the Sarpanch. It was sought to be established that there was enmity between the Sarpanch and the accused and his