SHRI. NADEEM UR REHMAN vs THE STATE OF KARNATAKA
- Court
- Karnataka High Court
- 1 -
R
Reserved on : 19.08.2026
Pronounced on : 16.10.2026
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 16 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 10711 OF 2026
BETWEEN:
SHRI NADEEM UR REHMAN
AGED ABOUT 51 YEARS
S/O ABDUL SUBAN
RESIDING AT NO. 736,
TH ST
4 CROSS, 1 MAIN,
S.S. NAGARA BANNIMANTAP
MYSURU – 570 015.
…PETITIONER
(BY SRI PALLAVA R., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY N.R. TRAFFIC P.S.
AT:ASHOKA ROAD
LASHKAR MOHALLA
MYSURU – 570 021
REPRESENTED BY LEARNED S.P.P
HIGH COURT OF KARNATAKA
BENGALURU – 560 001.
Digitally
signed by
CHAYA S A
Location:
High Court
of
Karnataka
- 2 -
2. SHRI ANNEGOWDA
AGED ABOUT 69 YEARS
S/O LATE NANJEGOWDA
RESIDING AT NO. 59
CHANDRAMOULESHWARA
TEMPLE STREET,
SIDDALINGAPURA VILLAGE,
MYSURU TALUK
MYSURU DISTRICT – 570 003.
…RESPONDENTS
(BY SRI B.N.JAGADEESHA, SPP-I A/W
SMT.RASHMI PATEL, HCGP FOR R-1)
THIS CRL.P IS FILED U/S 482 CR.PC PRAYING TO QUASH THE
CHARGE SHEET SUBMITTED BY THE N.R. TRAFFIC P.S., MYSURU
ST
THE 1 RESPONDENT HEREIN AS AGAINST THE
PETITIONER/ACCUSED NO. 02 HEREIN ONLY INSOFAR AS IT IS
SUBMITTED FOR THE OFFENCE P/U/S 304 PART II OF IPC, 1860 IN
RELATION TO CRIME NO.89/2020 REGISTERED BY THEM ON THE
FILE OF II ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU
IN S.C.NO.270/2021 WHICH IS GIVEN HEREIN AT ANNEXURE-A.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 19.08.2026, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
- 3 -
CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/accused No.2 is before the Court calling in
question proceedings in S.C.No.270 of 2021 registered for offence
punishable under Section 304 Part-II of the IPC.
2. Facts, in brief, germane, are as follows: -
2.1. The case of the prosecution, shorn of unnecessary
details, is that on 10-12-2020, the minor son of the petitioner, then
aged about 14 years and a juvenile in conflict with law, allegedly
took for a drive a motor car which had been entrusted to the
petitioner by his employer. The drive, unfortunately, culminated in
a tragic accident claiming the lives of three persons. On the
strength of a complaint lodged by the kith and kin of the deceased,
a crime comes to be registered in Crime No.89 of 2020, initially for
offences punishable under Sections 279, 304A and 337 of the IPC
and Sections 134A, 134B and 187 of the Motor Vehicles Act, 1988
(hereinafter referred to as ‘the Act’ for short).
- 4 -
2.2. In the course of investigation, permission was sought
from the II Additional District and Sessions Judge, Mysuru, to
incorporate the offence punishable under Section 304 Part-II of the
IPC. Permission being accorded, Section 304 Part-II enters the
array of offences alleged in the crime. Investigation thereafter
proceeds and culminates in the filing of a charge sheet, in which the
petitioner is arraigned as accused No.2 for the offence punishable
under Section 304 Part-II of the IPC, apart from offences under
Sections 5(1), 180 and 199A of the Act.
2.3. The petitioner, on being so arraigned, files an application
seeking discharge in S.C.No.270 of 2021 before the concerned
Sessions Court. The fulcrum of the plea for discharge was that,
even if the entire charge-sheet material were to be accepted as it
stood, the ingredients necessary to constitute an offence under
Section 304 Part-II of the IPC were conspicuously absent. The
concerned Court, upon hearing the parties, declines to accept the
plea and dismisses the application. It is this rejection that drives
the petitioner to this Court. The challenge, however, is deliberately
confined: the petitioner does not seek obliteration of the entire
- 5 -
prosecution, but restricts his prayer to effacement of the offence
punishable under Section 304 Part-II of the IPC.
3. Heard Sri Pallava R., learned counsel appearing for the
petitioner, and Sri B.N. Jagadeesha, learned State Public
Prosecutor-I appearing for respondent No.1.
4. Sri Pallava R., learned counsel appearing for the petitioner,
would contend with considerable vehemence that the unfortunate
accident, grave though its consequences undoubtedly are, cannot
by itself clothe the petitioner with criminal liability for culpable
homicide not amounting to murder. His submission is that the
minor son of the petitioner, without the petitioner’s knowledge or
consent, took the car and drove it in a rash and negligent manner,
resulting in the fatal accident. Even assuming the prosecution
material to be true in its entirety, it is contended, the essential
ingredient of knowledge that the act was likely to cause death -
indispensable for attracting Section 304 Part-II of the IPC - is
wholly wanting qua the petitioner. At its highest, the material may
make out an offence founded upon rashness or negligence; it
cannot be elevated into one of culpable homicide, merely because
- 6 -
the consequences of the accident were tragic. Learned counsel
would submit that he does not press the challenge insofar as the
other offences are concerned and confines the petition exclusively
to the obliteration of the offence under Section 304 Part-II of the
IPC.
5.1. Per contra, Sri B.N. Jagadeesha, learned State Public
Prosecutor-I, would stoutly defend the impugned order. Taking this
Court through the material appended to the petition, the charge-
sheet papers and the reasons rendered by the concerned Sessions
Court while rejecting the application for discharge, he would
contend that the prosecution material presents a picture quite
different from the one projected by the petitioner. According to the
learned State Public Prosecutor, there is material to indicate that it
was the petitioner himself who handed over the keys of the car to
his 14-year-old son and permitted him to take the vehicle for a
drive. If that circumstance is ultimately established, the petitioner
cannot, it is submitted, wash his hands of the consequences, by
portraying the episode as an unauthorised adventure of the minor.
- 7 -
5.2. The learned State Public Prosecutor would further submit
that the phenomenon of minors being permitted to take the wheel
of motor vehicles, with disastrous consequences to innocent road
users, is no longer an isolated occurrence. The law, therefore,
cannot view with indulgence the conduct of a parent or guardian
who knowingly places a motor vehicle in the hands of a child legally
incompetent to drive it. In such circumstances, interference at the
threshold, by effacing the offence under Section 304 Part-II of the
IPC, according to the learned State Public Prosecutor, would
amount to putting a premium upon conduct fraught with
foreseeable and potentially fatal consequences. He would,
therefore, seek dismissal of the petition.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7. Though the afore-narrated facts form part of the record,
the circumstances surrounding the incident merit a somewhat
detailed iteration. The petitioner is the father of a minor boy who,
- 8 -
at the relevant point in time, was barely 14 years of age. On
10-12-2020, the minor is alleged to have taken a Volkswagen Vento
car bearing registration No.KA-09-ME-6681 for a drive. While
proceeding on the Mysuru–Bengaluru Road, the vehicle, allegedly
driven in a rash and negligent manner, crashes into a two-wheeler
bearing registration No.KA-10-H-9100. The collision proves
catastrophic - it claims three lives and leaves one person injured.
8. The second respondent is the complainant. The tragedy
that befell the family is indeed profound. Complainant is the father
of deceased Usha, the father-in-law of her deceased husband and
the grandfather of the two children travelling with them, one of
whom also succumbed to the accident while the other sustained
injuries. Thus, in one calamitous occurrence, three members of the
family lost their lives and another suffered injuries. It is in the
aftermath of this unfortunate incident that the second respondent
sets the criminal law in motion by registering the complaint on
10-12-2020. The complaint, which forms the genesis of the
proceedings now under consideration, reads as follows:
- 9 -
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The complaint narrates, in vivid and painful detail, the manner in
which the accident unfolded and the devastating consequence it
visited upon the complainant and his family. What began as a drive
by a 14-year-old boy ended in a catastrophe, virtually wiping out a
family and leaving the complainant to bear the immeasurable grief
of losing his daughter, son-in-law and grandchild in one fell swoop.
The enormity of the tragedy is undeniable; but the gravity of the
consequence, by itself, cannot determine the gravity of the offence.
Criminal liability must necessarily be tested on the ingredients of
the offence alleged and the material that supports them.
- 11 -
9. On the complaint so registered, Crime No.89 of 2020
initially comes to be registered for offences punishable under
Sections 279, 304A and 337 of the IPC and Sections 134(a), 134(b)
and 187 of the Act. Section 304 Part-II of the IPC, which brings
with it the graver allegation of culpable homicide not amounting to
murder, enters the crime at a later stage. The Police thereafter
conduct investigation and file their final report/charge sheet,
arraigning the petitioner as accused No.2. It is the addition of
Section 304 Part-II qua the petitioner that forms the kernel of the
controversy in the case at hand. The summary of the charge sheet,
as obtaining under Column No.17 reads as follows:
“17. Brief facts of the case
-12 2 . . .
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The filing of the charge sheet brings the petitioner before the
concerned Sessions Court with an application seeking discharge,
though his challenge is confined to the graver offence punishable
under Section 304 Part-II of the IPC. His plea, in essence, is that
even if the entire charge sheet material is accepted at its face
value, it does not disclose the ingredients necessary to fasten upon
him the offence of culpable homicide not amounting to murder
under Section 304 Part-II of the IPC. The prayer in the application
under Section 227 of the Cr.P.C., reads as follows:
- 13 -
“Hence A2 deserves to be discharged from offences under
Section 304 of IPC, Section 5 r/w 180 and 199A of M.V. Act.
For the above said reasons, it is humbly prayed that this
Hon’ble Court be pleased to discharge the A2 from offences
under Section 304 of IPC and Section 5 r/w 180 and Section
199A of M.V. Act in the interest of justice.”
The concerned Court rejects the discharge application on the score
that there is no ground made out seeking his discharge.
10. The issue now would be, whether the petitioner can be
tried for offence punishable under Section 304 Part-II of the IPC.
Section 304 Part-II of the IPC reads as follows:
“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.”
The ingredients of Section 304 Part-II of the IPC are well
delineated. The act complained of must be accompanied by the
- 14 -
knowledge that it is likely to cause death, albeit , without any
intention either to cause death or to cause such bodily injury as is
likely to result in death. Knowledge, therefore, forms the fulcrum of
the offence under Part-II; absence of such knowledge, the provision
cannot be pressed into service merely because the consequence of
the act has been fatal.
11. The interpretation of Section 304 Part-II of the IPC need
not detain this Court for long, nor is it necessary to embark upon an
elaborate excursion into its jurisprudential contours, as the
provision and its ingredients have received authoritative exposition
at the hands of the Apex Court on more than one occasion.
JUDICIAL LANDSCAPE :
11.1. The Apex Court in YUVRAJ LAXMILAL KANTHER v.
1
STATE OF MAHARASHTRA has held as follows:
“…. …. ….
12. We have noted above that the appellants have been
charged for committing offence under Section 304 Part II IPC
read with Section 34 IPC. Since Section 34 IPC covers common
intention, the substantive charge against the appellants is under
Section 304 Part II IPC which reads as under:
1
2025 SCC OnLine SC 520
- 15 -
Punishment for culpable homicide not amounting to
murder -
Whoever commits culpable homicide not amounting
to murder shall be punished 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.
12.1. The ingredients constituting an offence under
Section 304 Part II IPC are as follows:
(i) he must commit culpable homicide not
amounting to murder;
(ii) the act must be done with the knowledge that
it is likely to cause death;
(iii) but such act is done without any intention to
cause death or to cause such bodily injury as
is likely to cause death.
12.2. Therefore, the first important expression is
‘culpable homicide not amounting to murder’. Culpable
homicide is defined in Section 299 IPC. It says that
whoever causes death by doing an act with the intention
of causing death or with the intention of causing such
bodily injury as is likely to cause death or with the
knowledge that he is likely by such act to cause death,
commits the offence of culpable homicide.
12.3. All culpable homicides are murders except in the
cases excepted under Section 300 IPC. Thus, except the cases
specifically exempted under Section 300 IPC, all other acts
within the meaning of Section 299 IPC would amount to
committing the offence of culpable homicide. However, what is
important to note is that for committing the offence of culpable
homicide, a positive act must be done by the doer with the
- 16 -
intention that such act would cause death or cause such bodily
injury as is likely to cause death or he having the knowledge
that by such an act, death may be caused. What, therefore, is
significant is that the doer of the act must have the intention of
causing death or the intention of causing such bodily injury as is
likely to cause death or has the knowledge that by doing such
an act he is likely to cause death. Therefore, to commit the
offence of culpable homicide, intention or knowledge is of crucial
importance.
12.4. Coming back to Section 304 Part II IPC, we
find that the said section would be attracted if anyone
commits culpable homicide not amounting to murder 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.
Therefore, the requirement of Section 304 Part II IPC is
that the doer must have the knowledge that the act
performed is likely to cause death or to cause such bodily
injury as is likely to cause death but without any
intention to cause death. Thus, the basic ingredient of
Section 304 Part II IPC is presence of knowledge and
absence of intention. The doer must have the knowledge
that the act performed by him would likely cause death
etc but there should not be any intention to cause death.”
The Apex Court holds that the accused were not persons physically
performing the ultimate act which resulted in death. The allegations
were essentially that they failed to provide safety equipment to
employees working in a dangerous situation. The Apex Court holds
that there was no prima facie case under Section 304 Part-II as
there was no material establishing requisite knowledge.
- 17 -
11.2. The Apex Court, a little earlier, in SHANTIBHAI J.
2
VAGHELA v. STATE OF GUJARAT interpreting Section 304 Part-
II holds that commission of offence of culpable homicide would
require some positive act on the part of the accused as
distinguished from silence, inaction or a mere lapse. To attract the
ingredients of the said offence, something more positive than a
mere omission, lapse or negligence must be alleged against the
accused. The Apex Court has held as follows:
“…. …. ….
25. Commission of the offence of culpable homicide
would require some positive act on the part of the
accused as distinguished from silence, inaction or a mere
lapse. Allegations of not carrying out a prompt search of
the missing children; of delay in the lodging of formal
complaint with the police and failure to take adequate
measures to guard the access from the ashram to the
river, which are the principal allegations made in the FIR,
cannot make out a case of culpable homicide not
amounting to murder punishable under Section 304 IPC.
To attract the ingredients of the said offence something
more positive than a mere omission, lapse or negligence
on the part of the named accused will have to be present.
Such statements are conspicuously absent in the FIR
filed in the present case.”
2
(2012) 13 SCC 231
- 18 -
11.3. The Apex Court, again, in ALISTER ANTHONY
3
PAREIRA v. STATE OF MAHARASHTRA has held as follows:
“…. …. ….
40. The question is whether indictment of an
accused under Section 304 Part II and Section 338 IPC
can coexist in a case of single rash or negligent act. We
think it can. We do not think that the two charges are
mutually destructive. If the act is done with the
knowledge of the dangerous consequences which are
likely to follow and if death is caused, then not only that
the punishment is for the act but also for the resulting
homicide and a case may fall within Section 299 or
Section 300 depending upon the mental state of the
accused viz. as to whether the act was done with one
kind of knowledge or the other or the intention.
Knowledge is awareness on the part of the person
concerned of the consequences of his act of omission or
commission indicating his state of mind. There may be
knowledge of likely consequences without any intention.
Criminal culpability is determined by referring to what a
person with reasonable prudence would have known.
41. Rash or negligent driving on a public road with the
knowledge of the dangerous character and the likely effect of
the act and resulting in death may fall in the category of
culpable homicide not amounting to murder. A person, doing an
act of rash or negligent driving, if aware of a risk that a
particular consequence is likely to result and that result occurs,
may be held guilty not only of the act but also of the result. As
a matter of law—in view of the provisions of IPC—the cases
which fall within the last clause of Section 299 but not within
clause “Fourthly” of Section 300 may cover the cases of rash or
negligent act done with the knowledge of the likelihood of its
dangerous consequences and may entail punishment under
Section 304 Part II IPC. Section 304-A IPC takes out of its ambit
3
(2012) 2 SCC 648
- 19 -
the cases of death of any person by doing any rash or negligent
act amounting to culpable homicide of either description.
42. A person, responsible for a reckless or rash or
negligent act that causes death which he had knowledge as a
reasonable man that such act was dangerous enough to lead to
some untoward thing and the death was likely to be caused,
may be attributed with the knowledge of the consequence and
may be fastened with culpability of homicide not amounting to
murder and punishable under Section 304 Part II IPC. There is
no incongruity, if simultaneously with the offence under Section
304 Part II, a person who has done an act so rashly or
negligently endangering human life or the personal safety of the
others and causes grievous hurt to any person is tried for the
offence under Section 338 IPC.
43. In view of the above, in our opinion there is no
impediment in law for an offender being charged for the offence
under Section 304 Part II IPC and also under Sections 337 and
338 IPC. The two charges under Section 304 Part II IPC and
Section 338 IPC can legally coexist in a case of single rash or
negligent act where a rash or negligent act is done with the
knowledge of likelihood of its dangerous consequences.
44. By charging the appellant for the offence under
Section 304 Part II IPC and Section 338 IPC—which is legally
permissible—no prejudice has been caused to him. The
appellant was made fully aware of the charges against him and
there is no failure of justice. We are, therefore, unable to accept
the submission of Mr U.U. Lalit that by charging the appellant
for the offences under Section 304 Part II IPC and Section 338
IPC for a rash or negligent act resulting in injuries to eight
persons and at the same time committed with the knowledge
resulting in death of seven persons, the appellant has been
asked to face a legally impermissible course.
45. In Prabhakaran v. State of Kerala [(2007) 14 SCC
269: (2009) 1 SCC (Cri) 873] this Court was concerned with the
appeal filed by a convict who was found guilty of the offence
punishable under Section 304 Part II IPC. In that case, the bus
driven by the convict ran over a boy aged 10 years. The
prosecution case was that the bus was being driven by the
appellant therein at enormous speed and although the
- 20 -
passengers had cautioned the driver to stop as they had seen
children crossing the road in a queue, the driver ran over the
student on his head. It was alleged that the driver had real
intention to cause death of persons to whom harm may be
caused on the bus hitting them. He was charged with offence
punishable under Section 302 IPC. The trial court found that no
intention had been proved in the case but at the same time the
accused acted with the knowledge that it was likely to cause
death, and, therefore, convicted the accused of culpable
homicide not amounting to murder punishable under Section
304 Part II IPC and sentenced him to undergo rigorous
imprisonment for five years and pay a fine of Rs 15,000 with a
default sentence of imprisonment for three years. The High
Court dismissed the appeal and the matter reached this Court.
46. While observing that Section 304-A speaks of causing
death by negligence and applies to rash and negligent acts and
does not apply to cases where there is an intention to cause
death or knowledge that the act will in all probability cause
death and that Section 304-A only applies to cases in which
without any such intention or knowledge death is caused by a
rash and negligent act, on the factual scenario of the case, it
was held in Prabhakaran case [(2007) 14 SCC 269 : (2009) 1
SCC (Cri) 873] that the appropriate conviction would be under
Section 304-A IPC and not Section 304 Part II IPC. Prabhakaran
[(2007) 14 SCC 269 : (2009) 1 SCC (Cri) 873] does not say in
absolute terms that in no case of an automobile accident that
results in death of a person due to rash and negligent act of the
driver, the conviction can be maintained for the offence under
Section 304 Part II IPC even if such act (rash or negligent) was
done with the knowledge that by such act of his, death was
likely to be caused. Prabhakaran [(2007) 14 SCC 269: (2009) 1
SCC (Cri) 873] turned on its own facts.
47. Each case obviously has to be decided on its
own facts. In a case where negligence or rashness is the
cause of death and nothing more, Section 304-A may be
attracted but where the rash or negligent act is preceded
with the knowledge that such act is likely to cause death,
Section 304 Part II IPC may be attracted and if such a
rash and negligent act is preceded by real intention on
the part of the wrongdoer to cause death, offence may be
punishable under Section 302 IPC.
- 21 -
… … …
78. We have also carefully considered the evidence let in
by the prosecution—the substance of which has been referred to
above—and we find no justifiable ground to take a view
different from that of the High Court. We agree with the
conclusions of the High Court and have no hesitation in holding
that the evidence and materials on record prove beyond
reasonable doubt that the appellant can be attributed with
knowledge that his act of driving the vehicle at a high speed in a
rash or negligent manner was dangerous enough and he knew
that one result would very likely be that people who were asleep
on the pavement may be hit, should the vehicle go out of
control.
79. There is a presumption that a man knows the natural
and likely consequences of his acts. Moreover, an act does not
become involuntary act simply because its consequences were
unforeseen. The cases of negligence or of rashness or
dangerous driving do not eliminate the act being voluntary. In
the present case, the essential ingredients of Section 304 Part II
IPC have been successfully established by the prosecution
against the appellant. The infirmities pointed out by Mr U.U.
Lalit, learned Senior Counsel for the appellant, which have been
noticed above are not substantial and in no way affect the
legality of the trial and the conviction of the appellant under
Section 304 Part II IPC. We uphold the view of the High Court
being consistent with the evidence on record and law.”
The Apex Court interpreting Section 304 Part-II holding it to be
distinguished from Section 304A and 338 of the IPC did not choose
to interfere with the offence alleged under Section 304 Part-II for
the reason that the accused was a driver himself.
- 22 -
4
11.4. The Apex Court in STATE v. SANJEEV NANDA holds
as follows:
“…. …. ….
“39. For our own benefit it is appropriate to
reproduce Section 304 IPC, which reads thus:
“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.”
A critical and microscopic analysis thereof shows that
once knowledge that it is likely to cause death is
established but without any intention to cause death,
then jail sentence may be for a term which may extend to
10 years or with fine or with both.
40. Now, we have to consider if it is a fit case where
conviction should be altered to Section 304 Part II IPC and
sentence awarded should be enhanced.
41. We are of the considered view that looking to the
nature and manner in which the accident had taken place, it can
safely be held that the respondent had no intention to cause
4
(2012) 8 SCC 450
- 23 -
death but certainly had the knowledge that his act may result in
death.
42. Thus, looking to the matter from all angles, we have
no doubt in our mind that knowledge can still be attributed to
accused Sanjeev that his act might cause such bodily injuries
which may, in ordinary course of nature, be sufficient to cause
death but certainly he did not have any intention to cause
death. He was not driving the vehicle with that intention. There
is nothing to prove that he knew that a group of persons was
standing on the road he was going to pass through. If that be
so, there cannot be an intention to cause death or such bodily
injury as is likely to cause death. Thus, in our opinion, he had
committed an offence under Section 304 Part II IPC. We
accordingly hold so.
… … …
104. First we will examine the scope of Section 304-A
IPC which reads as follows:
“ 304-A. 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.”
On reading the abovementioned provision, the
following requirements must be satisfied before applying
this section:
( i ) Death must have been caused by the accused;
( ii ) Death caused by rash or negligent act;
( iii ) Rash and negligent act must not amount to
culpable homicide.
Section 304-A 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 not amounting to murder under
Section 299 or murder under Section 300. Section 304-A
excludes all the ingredients of Section 299 or Section 300.
105. The abovementioned section came up for
consideration in HaidaraliKalubhai [(1976) 1 SCC 889 : 1976
- 24 -
SCC (Cri) 211] wherein this Court held as follows: (SCC p. 891,
para 4)
“ 4 . Section 304-A 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 IPC or murder under Section 300 IPC.
If a person wilfully drives a motor vehicle in the midst of
a crowd and thereby causes death to some persons, 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.”
106. Before elaborating and examining the above
principle laid down by this Court in Haidarali case [(1976) 1 SCC
889 : 1976 SCC (Cri) 211] , we will refer to Sections 299, 300
and 304 IPC:
Section 299
A person commits culpable homicide if the act by
which the death is caused is done
*
( c ) with the knowledge that he is likely to cause
death.
Section 300
Except in the cases hereinafter excepted,
culpable homicide is murder, if the act by which the
death is caused is done
*
Fourthly .— with the knowledge that it is so
imminently dangerous that it must, in all probability,
cause death or such bodily injury as is likely to cause
death, and commits such act without any excuse for
incurring the risk of causing death or such injury as
aforesaid.
“ 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,
- 25 -
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.”
107. Section 299 IPC defines culpable homicide as
an act of causing death ( i ) with the intention of causing
death; ( ii ) with the intention of causing some bodily
injury as is likely to cause death; and ( iii ) with the
knowledge that such act is likely to cause death. The first
and second clauses of the section refer to intention apart
from knowledge and the third clause refers to knowledge
apart from intention. “Intention” and “knowledge”
postulate the existence of positive mental attitude. The
expression “knowledge” referred to in Section 299 and
Section 300 is the personal knowledge of the person who
does the act. To make out an offence punishable under
Section 304 Part II IPC, the prosecution has to prove the
death of the person in question and such death was
caused by the act of the accused and that he knew such
act of his is likely to cause death.
108. Section 304-A, as already indicated, 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
not amounting to murder under Section 299 or murder under
Section 300. The scope of the abovementioned provisions came
up for consideration before this Court in Naresh Giri v. State of
M.P. [(2008) 1 SCC 791 : (2008) 1 SCC (Cri) 324] wherein this
Court held as follows: (SCC p. 794, para 7)
“ 7 . Section 304-A IPC applies to cases where
there is no intention to cause death and no knowledge
that the act done in all probability will cause death. The
provision is directed at offences outside the range of
Sections 299 and 300 IPC. Section 304-A applies only to
such acts which are rash and negligent and are directly
- 26 -
the cause of death of another person. Negligence and
rashness are essential elements under Section 304-A.”
109. In a recent judgment, in Alister Anthony Pareira
[(2012) 2 SCC 648 : (2012) 1 SCC (Cri) 953 : (2012) 1 SCC
(Civ) 848] , this Court after surveying a large number of
judgments on the scope of Sections 304-A and 304 Part II IPC,
came to the conclusion that in a case of drunken driving
resulting in the death of seven persons and causing injury to
eight persons, the scope of Sections 299, 300 and 304 Parts I
and II IPC stated to be as follows: (SCC p. 665, para 47)
“ 47 . Each case obviously has to be decided on its
own facts. In a case where negligence or rashness is the
cause of death and nothing more, Section 304-A may be
attracted but where the rash or negligent act is
preceded with the knowledge that such act is likely to
cause death, Section 304 Part II IPC may be attracted
and if such a rash and negligent act is preceded by real
intention on the part of the wrongdoer to cause death,
offence may be punishable under Section 302 IPC.”
110. On facts, the Court concluded as follows: ( Alister
Anthony Pareira case [(2012) 2 SCC 648: (2012) 1 SCC (Cri)
953: (2012) 1 SCC (Civ) 848] , SCC p. 679, para 97)
“ 97 . The facts and circumstances of the case
which have been proved by the prosecution in bringing
home the guilt of the accused under Section 304 Part II
IPC undoubtedly show a despicable aggravated offence
warranting punishment proportionate to the crime.
Seven precious human lives were lost by the act of the
accused. For an offence like this which has been proved
against the appellant, sentence of three years awarded
by the High Court is too meagre and not adequate but
since no appeal has been preferred by the State, we
refrain from considering the matter for enhancement. By
letting the appellant away on the sentence already
undergone i.e. two months in a case like this, in our
view, would be travesty of justice and highly unjust,
unfair, improper and disproportionate to the gravity of
crime. It is true that the appellant has paid
compensation of Rs 8,50,000 but no amount of
compensation could relieve the families of victims from
- 27 -
the constant agony. As a matter of fact, the High Court
had been quite considerate and lenient in awarding to
the appellant sentence of three years for an offence
under Section 304 Part II IPC where seven persons were
killed.”
111. In Jagriti Devi v. State of H.P. [(2009) 14 SCC
771 : (2010) 2 SCC (Cri) 245] a Bench of this Court held
that it is trite law that Section 304 Part II comes into
play when the death is caused by doing an act with
knowledge that it is likely to cause death but there is no
intention on the part of the accused either to cause death
or to cause such bodily injury as is likely to cause death.
112. In one of the earlier decisions of this Court in State
of A.P. v. RayavarapuPunnayya [(1976) 4 SCC 382: 1976 SCC
(Cri) 659] , this Court succinctly examined the distinction
between Section 299 and Section 300 IPC and in para 12 of the
judgment held as follows: (SCC p. 386)
“ 12 . In the scheme of the Penal Code, ‘culpable
homicide’ is genus and ‘murder’ its specie. All ‘murder’ is
‘culpable homicide’ but not vice versa. Speaking
generally, ‘culpable homicide’ sans ‘special
characteristics of murder’, is ‘culpable homicide not
amounting to murder’. For the purpose of fixing
punishment, proportionate to the gravity of this generic
offence, the Code practically recognises three degrees of
culpable homicide. The first is, what may be called,
‘culpable homicide of the first degree’. This is the
gravest form of culpable homicide, which is defined in
Section 300 as ‘murder’. The second may be termed as
‘culpable homicide of the second degree’. This is
punishable under the first part of Section 304. Then,
there is ‘culpable homicide of the third degree’. This is
the lowest type of culpable homicide and the
punishment provided for it is, also, the lowest among
the punishments provided for the three grades. Culpable
homicide of this degree is punishable under the second
part of Section 304.”
Referring to para 14 of that judgment, the Court opined that the
difference between clause ( b ) of Section 299 and clause (3) of
Section 300 is one of the degree of probability of death resulting
from the intended bodily injury. The word “likely” in clause ( b )
- 28 -
of Section 299 conveys the sense of “probable” as distinguished
from a mere possibility. The words “bodily injury … sufficient in
the ordinary course of nature to cause death” mean that death
will be the “most probable” result of the injury having regard to
the ordinary course of nature.
113. Ultimately, the Court concluded as follows:
( RayavarapuPunnayya case [(1976) 4 SCC 382: 1976 SCC (Cri)
659], SCC pp. 388-89, para 21)
“ 21 . From the above conspectus, it emerges that
whenever a court is confronted with the question
whether the offence is ‘murder’ or ‘culpable homicide not
amounting to murder’, on the facts of a case, it will be
convenient for it to approach the problem in three
stages. The question to be considered at the first stage
would be, whether the accused has done an act by doing
which he has caused the death of another. Proof of such
causal connection between the act of the accused and
the death, leads to the second stage for considering
whether that act of the accused amounts to ‘culpable
homicide’ as defined in Section 299. If the answer to
this question is prima facie found in the affirmative, the
stage for considering the operation of Section 300 of the
Penal Code, is reached. This is the stage at which the
court should determine whether the facts proved by the
prosecution bring the case within the ambit of any of the
four clauses of the definition of ‘murder’ contained in
Section 300. If the answer to this question is in the
negative the offence would be ‘culpable homicide not
amounting to murder’, punishable under the first or the
second part of Section 304, depending, respectively, on
whether the second or the third clause of Section 299 is
applicable. If this question is found in the positive, but
the case comes, within any of the exceptions
enumerated in Section 300, the offence would still be
‘culpable homicide not amounting to murder’, punishable
under the first part of Section 304 of the Penal Code.”
114. The principle mentioned by this Court in Alister
Anthony Pareira [(2012) 2 SCC 648 : (2012) 1 SCC (Cri) 953 :
(2012) 1 SCC (Civ) 848] indicates that the person must be
presumed to have had the knowledge that, his act of driving the
vehicle without a licence in a high speed after consuming liquor
beyond the permissible limit, is likely or sufficient in the
- 29 -
ordinary course of nature to cause death of the pedestrians on
the road. In our view, Alister Anthony Pareira [(2012) 2 SCC
648: (2012) 1 SCC (Cri) 953: (2012) 1 SCC (Civ) 848]
judgment calls for no reconsideration. Assuming that Shri Ram
Jethmalani is right in contending that while he was driving the
vehicle in a drunken state, he had no intention or knowledge
that his action was likely to cause death of six human beings, in
our view, at least, immediately after having hit so many human
beings and the bodies scattered around, he had the knowledge
that his action was likely to cause death of so many human
beings, lying on the road unattended. To say, still he had no
knowledge about his action is too childish which no reasonable
man can accept as worthy of consideration. So far as this case
is concerned, it has been brought out in evidence that the
accused was in an inebriated state, after consuming excessive
alcohol, he was driving the vehicle without licence, in a rash and
negligent manner in a high speed which resulted in the death of
six persons. The accused had sufficient knowledge that his
action was likely to cause death and such an action
would, in the facts and circumstances of this case, fall
under Section 304 Part II IPC and the trial court has
rightly held so and the High Court has committed an error
in converting the offence to Section 304-A IPC.”
Here again Sanjeev Nanda, the accused was the driver himself.
11.5. The Apex Court, earlier, in JAGRITI DEVI v. STATE
5
OF HIMACHAL PRADESH has held as follows:
“…. …. ….
34. That being the position, we are of the
considered view that the present case cannot be said to
be a case under Section 302 IPC but it is a case falling
under Section 304 Part II IPC. It is trite law that Section
304 Part II comes into play when the death is caused by
5
(2009) 14 SCC 771
- 30 -
doing an act with knowledge that it is likely to cause
death but there is no intention on the part of the accused
either to cause death or to cause such bodily injury as is
likely to cause death.”
11.6. The High Court of Delhi in MASTER M v. STATE OF
6
NCT OF DELHI holds as follows:
“…. …. ….
41. Since the principal submission of the Petitioner
is that, even accepting the prosecution case in its
entirety, the essential ingredient of “ knowledge ” as
contemplated under Section 299 IPC is not made out, it
would be apposite to understand the relevant legal
provisions of the IPC, which are reproduced as under:
“Section 304 : Punishment for culpable
homicide not amounting to murder.—Whoever,
commits culpable homicide not amounting to
murder shall be punished with (imprisonment of
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.
Section 304A : Causing death by
negligence.— Whoever causes the death of any person
by doing any rash or negligence 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.
6
2026 SCC OnLine Del.1713
- 31 -
Section 299 : Culpable homicide.— Whoever
causes death by doing an act with the intention of
causing death, or with the intention of causing such
bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause
death , commits the offence of culpable homicide.”
42. A bare perusal of the above sections reflects
that the distinction between Section 304 Part II and
Section 304A IPC lies in the mental element
accompanying the act. While Section 304A contemplates
death caused by rash or negligent conduct , Section 304
Part II is attracted where the act is done with the
knowledge that it is likely to cause death , though without
any intention to cause death. “ Knowledge ” in this context
denotes an awareness of the likelihood of fatal
consequences arising from the act committed. Such
knowledge is ordinarily inferred from the nature of the
act, the surrounding circumstances, and the degree of
risk inherent in the conduct.
43. The Supreme Court, in Mahadev Prasad Kaushik
(supra), while highlighting the distinction between
Section 299, 304 A and 304 IPC, opined as under:
“20. The question then is as regards
issuance of summons under Section 304 IPC.
Section 304 reads thus:
“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.”
- 32 -
A plain reading of the above section makes
it clear that it is in two parts. The first part of the
section is generally referred to as Section 304 Part
I, whereas the second part as Section 304 Part II.
The first part applies where the accused causes
bodily injury to the victim with intention to cause
death; or with intention to cause such bodily injury
as is likely to cause death. Part II, on the other
hand, comes into play when death is caused by
doing an act with 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.
21. The makers of the Code observed:
“The most important consideration upon a
trial for this offence is the intention or knowledge
with which the act which caused death, was done.
The intention to cause death or the knowledge
that death will probably be caused, is essential
and is that to which the law principally looks. And
it is of the utmost importance that those who may
be entrusted with judicial powers should clearly
understand that no conviction ought to take place,
unless such intention or knowledge can from the
evidence be concluded to have really existed.”
The makers further stated:
“It may be asked how can the existence of
the requisite intention or knowledge be proved,
seeing that these are internal and invisible acts of
the mind? They can be ascertained only from
external and visible acts. Observation and
experience enable us to judge of the connection
between men's conduct and their intentions. We
know that a sane man does not usually commit
certain acts heedlessly or unintentionally and
generally we have no difficulty in inferring from
his conduct what was his real intention upon any
given occasion.”
22. Before Section 304 can be invoked, the
following ingredients must be satisfied:
- 33 -
(i) the death of the person must have been
caused;
(ii) such death must have been caused by the
act of the accused by causing bodily injury;
(iii) there must be an intention on the part of
the accused:
(a) to cause death; or
(b) to cause such bodily injury which is
likely to cause death (Part I);
(iv) there must be knowledge on the part of the
accused that the bodily injury is such that it is
likely to cause death (Part II).
23. Section 304-A was inserted by the Penal
Code (Amendment) Act, 1870 (Act 27 of 1870) and
reads thus:
“304-A. 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.”
The section deals with homicidal death by
rash or negligent act. It does not create a new
offence. It is directed against the offences outside
the range of Sections 299 and 300 IPC and covers
those cases where death has been caused without
intention or knowledge. The words “not amounting
to culpable homicide” in the provision are
significant and clearly convey that the section
seeks to embrace those cases where there is
neither intention to cause death, nor knowledge
that the act done will in all probability result into
death. It applies to acts which are rash or
negligent and are directly the cause of death of
another person.
24. There is thus distinction between
Section 304 and Section 304-A. Section 304-A
carves out cases where death is caused by doing a
rash or negligent act which does not amount to
culpable homicide not amounting to murder within
the meaning of Section 299 or culpable homicide
- 34 -
amounting to murder under Section 300 IPC. In
other words, Section 304-A excludes all the
ingredients of Section 299 as also of Section 300.
Where intention or knowledge is the “motivating
force” of the act complained of, Section 304-A will
have to make room for the graver and more
serious charge of culpable homicide not amounting
to murder or amounting to murder as the facts
disclose. The section has application to those
cases where there is neither intention to cause
death nor knowledge that the act in all probability
will cause death.
25. In Empress of India v. Idu Beg [1881
SCC OnLine All 103 : ILR (1881) 3 All 776]
Straight, J. made the following pertinent
observations which have been quoted with
approval by various courts including this Court:
(ILR p. 780)
“… criminal rashness is hazarding a
dangerous or wanton act with the knowledge that
it is so, and that it may cause injury, but without
intention to cause injury, or knowledge that it will
probably be caused. The criminality lies in running
the risk of doing such an act with recklessness or
indifference as to the consequences. Criminal
negligence is the gross and culpable neglect or
failure to exercise that reasonable and proper care
and precaution to guard against injury either to
the public generally or to an individual in
particular, which, having regard to all the
circumstances out of which the charge has arisen,
it was the imperative duty of the accused person
to have adopted.”
26. Though the term “negligence” has not
been defined in the Code, it may be stated that
negligence is the omission to do something which
a reasonable man, guided upon those
considerations which ordinarily regulate the
conduct of human affairs would do, or doing
something which a reasonable and prudent man
would not do.
27. The learned counsel for the appellant-
accused submitted that by no stretch of
- 35 -
imagination, can it be said that the appellant while
administering injections to deceased Buddha Ram
is said to have committed an offence punishable
under Section 304 IPC. It can never be said that
the death of Buddha Ram had been caused by the
appellant by doing the act of giving injections with
intention to cause his death or to cause such
bodily injury as is likely to cause death. Likewise,
it is impossible to think that the purported act has
been done by the appellant-accused with the
knowledge that in all probability, it would result
into the death of Buddha Ram.”
(Emphasis supplied)
44. Hence, the above judgment, crystalized the
conceptual distinction between the mental elements of
intention , knowledge , rashness and negligence in the context of
Sections 299, 304 and 304A IPC. While intention and knowledge
constitute the mental elements for culpable homicide, and
rashness constitutes the mental element for 304 A. It is
important to note that the concept of “ knowledge ” appears both
in the concept of criminal rashness under Section 304A as well
as in Section 304 Part II of the IPC, however, the degree and
nature of such knowledge is fundamentally different . In cases of
criminal rashness , the accused is aware that his act is
dangerous and may cause fatal injury i .e. knowledge that
consequence may follow , yet he proceeds with recklessness or
indifference to consequences. However, for attracting
Section 304 Part II, the knowledge required is of a higher
degree , namely the awareness that the act is likely to
cause death in all probability . Thus, while rashness
involves knowledge of risk of fatal injury coupled with
reckless disregard, Section 304 Part II requires conscious
awareness of the likelihood of death as a probable
consequence of the act. The distinction therefore lies not
merely in the presence of knowledge, but in the degree of
probability of death contemplated by the accused. Hence
only when, intention or knowledge is the motivating
force, the offence would fall within the ambit of Section
304 Part II.
45. Similar view has been echoed by the Supreme Court
in the case of Prabhakaran (supra). The case centres around a
- 36 -
motor vehicle accident caused by the accused bus driver, who
ran his bus over a 10-year-old boy. Initially, considering that
the bus driver had ignored the warnings of the pedestrians and
the passengers cautioning him to not drive the bus recklessly
(thereby implying that he had knowledge that death is likely to
be caused), he was convicted under Section 304 Part II by the
learned trial court as well as the High Court. However, while
allowing the appeal of the accused and convicting him under the
Section 304 A IPC, the Supreme Court not only delineated the
boundary between Sections 304 Part II and 304 A but also
explicated the distinction between criminal rashness and
criminal negligence within the framework of Section 304A. On a
detailed evaluation of the evidence on record, it was held that
there was no evidence to suggest that the accused had the
knowledge that his act was likely to cause death , thereby
excluding the application of Section 304 Part II. It was re-
iterated that criminal rashness connotes an act done with the
consciousness of a risk that evil consequences may follow, yet
with the hope that they will not, whereas criminal negligence
implies a breach of duty to take care, marked by a failure to
exercise reasonable and proper caution expected in the
circumstances. Both concepts fall within the ambit of Section
304A when death is caused without intention or knowledge . The
relevant extract is reproduced as under:
“5. Section 304-A speaks of causing death by
negligence. This section applies to rash and negligent
acts and does not apply to cases where death has been
voluntarily caused. This section obviously does not apply
to cases where there is an intention to cause death or
knowledge that the act will in all probability cause
death. It only applies to cases in which without any such
intention or knowledge death is caused by what is
described as a rash and negligent act.
6. A negligent act is an act done without doing
something which a reasonable man guided upon those
considerations which ordinarily regulate the conduct of
human affairs would do or act which a prudent or
reasonable man would not do in the circumstances
attending it. A rash act is a negligent act done
precipitately. Negligence is the genus, of which rashness
is the species. It has sometimes been observed that in
rashness the action is done precipitately that the
- 37 -
mischievous or illegal consequences may fall, but with a
hope that they will not. Lord Atkin in Andrews v. Director of
Public Prosecutions [[1937] A.C. 576 : [1937] 2 All ER 552] AC
at p. 583 observed as under: (All ER p. 556 C-E)
“Simple lack of care such as will constitute civil liability
is not enough. For purposes of the criminal law there are
degrees of negligence, and a very high degree of negligence is
required to be proved before the felony is established. Probably
of all the epithets that can be applied ‘reckless’ most nearly
covers the case. It is difficult to visualise a case of death
caused by ‘reckless’ driving, in the connotation of that
term in ordinary speech, which would not justify a
conviction for manslaughter, but it is probably not
allembracing, for ‘reckless’ suggests an indifference to
risk, whereas the accused may have appreciated the
risk, and intended to avoid it, and yet shown in the
means adopted to avoid the risk such a high degree of
negligence as would justify a conviction .”
7. “7. Section 304-A applies to cases where there is no
intention to cause death and no knowledge that the act
done in all probability will cause death. The provision is
directed at offences outside the range of Sections 299
and 300 IPC. The provision applies only to such acts
which are rash and negligent and are directly cause of
death of another person. Negligence and rashness are
essential elements under Section 304-A. Culpable negligence
lies in the failure to exercise reasonable and proper care and
the extent of its reasonableness will always depend upon the
circumstances of each case. Rashness means doing an act with
the consciousness of a risk that evil consequences will follow
but with the hope that it will not. Negligence is a breach of duty
imposed by law. In criminal cases, the amount and degree of
negligence are determining factors. A question whether the
accused's conduct amounted to culpable rashness or negligence
depends directly on the question as to what is the amount of
care and circumspection which a prudent and reasonable man
would consider it to be sufficient considering all the
circumstances of the case.
Criminal rashness means hazarding a dangerous or
wanton act with the knowledge that it is dangerous or wanton
and the further knowledge that it may cause injury but done
without any intention to cause injury or knowledge that it
would probably be caused.
- 38 -
8. As noted above, ‘rashness’ consists in hazarding
a dangerous or wanton act with the knowledge that it is
so, and that it may cause injury. The criminality lies in
such a case in running the risk of doing such an act with
recklessness or indifference as to the consequences.
Criminal negligence on the other hand, is the gross and
culpable neglect or failure to exercise that reasonable and
proper care and precaution to guard against injury either to the
public generally or to an individual in particular, which, having
regard to all the circumstances out of which the charge has
arisen it was the imperative duty of the accused person to have
adopted.
9. The distinction has been very aptly pointed out by
Holloway, J. in these words:
‘Culpable rashness is acting with the consciousness that
the mischievous and illegal consequences may follow, but
with the hope that they will not, and often with the
belief that the actor has taken sufficient precautions to
prevent their happening. The imputability arises from acting
despite the consciousness (luxuria). Culpable negligence is
acting without the consciousness that the illegal and
mischievous effect will follow, but in circumstances which show
that the actor has not exercised the caution incumbent upon
him, and that if he had he would have had the consciousness.
The imputability arises from the neglect of the civic duty of
circumspection.’ (See Nidamarti Nagabhushanam, In re [7 Mad
HCR 119], Mad HCR pp. 119-20.) Xxx xxx xxx
8. When the factual scenario of the present case is
analysed, it is crystal clear that the appropriate
conviction would be under Section 304-A IPC and not
Section 304 Part II IPC. Conviction is accordingly altered.
The maximum sentence which can be imposed for offence
punishable under Section 304-A is two years with fine or with
both. The custodial sentence, therefore, is reduced to the
maximum i.e. two years.”
(emphasis supplied)
46. Crucially, it was underscored that even a high degree
of rashness or negligence does not elevate the offence to
Section 304 Part II unless it is accompanied by the requisite
knowledge of the likelihood of death , which remains the decisive
distinguishing element. Accordingly, in the absence of such
- 39 -
knowledge, the conviction was altered from Section 304 Part II
to Section 304A IPC.
47. Similar observations have been made in the
judgment passed by a co-ordinate Bench of the High Court of
Rajasthan, in the judgment of Abul Kalam Musalman (supra),
and the judgment passed by the Supreme Court in the case of
Yuvraj Laxmilal Kanther (supra).
48. Hence, the general trend was that most road
accidents resulting in death were prosecuted under
Section 304A IPC unless there was a clear “ intention ” to
cause death or “ knowledge” of death as a consequence,
decipherable from the evidence.
… … …
61. The determination of the existence of mental
elements such as “ intention ” or “ knowledge ”, and whether the
act in question amounts merely to “ rashness” or “ negligence ” or
rises to the level of conscious awareness of a likely fatal
consequence, is essentially fact-specific and can only be
conclusively adjudicated upon appreciation of evidence led by
the parties. At the present stage, the Court is not required to
and cannot record definitive findings on such mental state.
Hence, since the material prima facie discloses the ingredients
of Section 304 Part II IPC, it was appropriate for the learned JJB
to frame notice for the said higher offence, leaving it open to
the Board, upon conclusion of inquiry, to determine whether the
evidence ultimately sustains the said charge or whether the
case falls within the ambit of a lesser offence such as Section
304AIPC. Such an approach obviates the possibility of prejudice
or procedural complications that may arise if the evidence were
later to justify the higher offence.”
11.7. The High Court of Gujarat in TATHYA
7
PRAGNESHBHAI PATEL v. STATE OF GUJARAT has held as
follows:
7
R/Criminal Revision Application No.1396 of 2023 decided on 3-12-2025
- 40 -
“…. …. ….
12. Thus, the case on hand is not merely of rash or negligent
driving but the evidence on record clearly indicates that while
Tathya was driving his vehicle at very high excessive speed and
despite being asked by co-passengers to drive slow, he did not
though it fit to do so and continued to drive at very high
excessive speed resulting into death of nine people and also
injuring other persons. This Court is also mindful of the fact that
owing to the previous accident, that had occurred between
Mahindra Thar and Dumper over Iscon Bridge where police
personnel and general people had gathered, however, it cannot
be said that because of such gathering, Tathya Patel met with
an accident because the factum of Tathya driving his car at
highly excessive speed despite being asked by the co-passenger
to drive slowly had gone to deaf ears. Even in the midst of the
night when there is even a visibility issue coupled with the fact
of driving a car with dark glasses at a high excessive speed,
under such circumstances, it cannot be said that the accused
No. 1 Tathya Patel was driving his car with a hope that the
consequences would not follow.
If the argument for the Ld. Counsel for the Applicant are
considered, then in no case the provisions of Section 304 Part II
of the IPC can be made applicable. What is to be seen is the
facts and circumstances of the each case, manner in which the
accident took place, conduct of the accused before, during and
after the accident and keeping all these aspects read with the
papers of the chargesheet, it cannot be said that this is a pure
and simple case of rash and negligence driving. Thus, it cannot
be stated that the Applicant had a hope and was under the
belief that he had taken sufficient precaution to prevent the
happening. This imputability arises from persisting in excessive
speed despite being asked to drive slowly.
13. Even on perusal of the charge-sheet, what has been
imputed to the accused No. 1 is not merely that he drove at
excessive speed and driving in a negligent manner but if the car
is driven at high and excessive speed and in a manner and
despite having knowledge that this would lead to death was
driven in such a manner which resulted into the death of nine
persons.
- 41 -
14. Thus, the present case falls within last clause of Section 299
of the IPC and not clause fourthly of Section 300 coupled with
the fact of driving the vehicle at an excessive speed with a
knowledge of dangerous consequences, despite having been
asked to drive slow was not given heed by the accused.
Ld. Advocate for the respective parties have referred to
judgment as stated hereinabove. This Court has considering the
principles established in the said judgment. At this stage it
would be opt to consider the judgment in the case of the
Regional Manager and Another Vs. Pawan Kumar Dubey
Reported in 1976 AIR 1766, wherein, it is held as under:-
“…………..It is the rule deducible from the application of
law to the facts and circumstances of a case which
constitutes its ratio decidendi and not some conclusion
based upon facts which may appear to be similar. One
Additional or different fact can make a world of
difference between conclusions in two cases even when
the same principles are applied in each case to similar
facts. ”
In the case of Megh Singh Vs. State of Punjab reported in AIR
2003 SUPREME COURT 3184, it is held as under:-
“Circumstantial flexibility, one additional or different fact
may make a world of difference between conclusions in
two cases or between two accused in the same case.
Each case depends on its own facts and a close
similarity between one case and another is not enough
because a single significant detail may alter the entire
aspect. It is more pronounced in criminal cases where
the backbone of adjudication is fact based”
In view of the aforesaid principles, this Court has considered the
ratio laid down in the judgment referred to, however, each case
has to be decided on its own facts and the law applicable to
such case is kept in mind while deciding the present Application.
15. Under such circumstances, it cannot be said that this is a
pure and simple case of rash and negligent driving attracting
provisions of Section 304A of the IPC. From the bare reading of
the papers of the charge-sheet, a strong prima facie case of
Section 304 Part 2 is made out. More particularly, when the law
for the purpose of holding accused guilty for the offence
- 42 -
punishable under Section 304 Part 2 of the IPC, it is not
necessary to bring the case of the prosecution within one of the
exceptions of Section 300 of IPC. Thus, if the case on hand is
considered without controverting it, there is strong prima facie
material against the present accused No. 1 to proceed with the
offence under Section 304 Part II of the IPC and Section 308.
Thus, no case is made out for discharging the Applicant – Org.
Accused No. 1 for the offence punishable under Section 304 and
308 of the IPC, however, considering the role attributed to the
Org. Accused No. 2 – Pragnesh Harshadbhai Patel, the
Applicant– Org. Accused No. 2 has sought discharge for the
offence punishable under Section 279,337,338,304 and 308 of
IPC with the aid of Section 107 and also seeking discharge
under the provisions of Section 177, 184 and 134(b) of the MV
Act is concerned.
16. Section 279 of IPC deals with rash driving or riding on a
public way.
Section 337 of IPC deals with causing hurt by act endangering
life or personal safety of others..
Section 338 of IPC deals with causing grievous hurt by act
endangering life or personal safety of others.
Section 304 of IPC deals with punishment for culpable homicide
not amounting to murder.
Section 308 of IPC deals with attempt to commit culpable
homicide.
Whereas Section 107 defines Abetment of a thing.
Section 177 of the MV Act deals with general provision for
punishment of offences.
Section 184 of the MV Act deals with driving dangerously.
Section 134 (b) of the MV Act deals with duty of driver in case
of accident and injury to a person.
17. On perusal of the papers of the charge-sheet, the role
attributed to accused No.2 i.e., the father of Tathya is to
the effect that on receiving the information of the
accident, he reached at the place of incident and started
- 43 -
quarreling with the persons who had gathered there,
used abusive language and also threatened them and
took away his son. Thus, even if the defence of the
accused No. 2 is not taken into consideration, and
considering the facts of the prosecution qua accused No.2
is concerned, at the best provisions of Section 504,
506(2),114 and 118 of IPC are made out, however, no
offence under Section 279, 337,338,304,308 of the IPC
and Section 177,184 and 134(b) of the MV Act are made
out. Thus, Criminal Revision Application No. 1396 of 2023
is allowed in part and Criminal Revision Application No.
1406 of 2023 is dismissed. Org. Accused No. 2, Pragnesh
Harshadbhai Patel stands discharged from the offence
punishable under Section 279, 337,338,304,308 of the
IPC and Section 177,184 and 134(b) of MV Act. The
impugned order passed by the Principal District Judge, at
Ahmedabad Rural in Sessions Case No. 115/2023 dated
21.10.2023 qua Org. Accused No.2 Pragnesh Harshadbhai
Patel stands partly allowed to the aforesaid extent.”
(Emphasis supplied at each instance)
12. On a coalescence of the judgments noticed hereinabove,
the line that separates Section 304 Part-II from Section 304A of the
IPC emerges with considerable clarity. The distinction does not lie
merely in the enormity of the consequence, for death may
unfortunately be the consequence under either provision; the
distinction lies in the mental element that precedes the act .
Section 304A inhabits the realm of rashness and negligence,
whereas Section 304 Part-II enters the graver territory of
culpable homicide, when the act is accompanied by the
- 44 -
conscious knowledge that death is its likely consequence.
Thus, consequence alone cannot metamorphose negligence
into culpable homicide; there must be material
demonstrating the requisite knowledge attributable to the
person whose criminal liability is sought to be fastened.
13. The Apex Court in YUVRAJ LAXMILAL KANTHER
emphasizes that culpable homicide ordinarily requires a positive act
accompanied by the requisite intention or knowledge;
SHANTIBHAI J. VAGHELA fortifies the principle by holding that
mere silence, inaction, lapse or negligence, without something more
positive, would not ordinarily answer the ingredients of culpable
homicide. ALISTER ANTHONY PAREIRA , however, demonstrates
the other end of the spectrum: rash or negligent driving may
graduate into Section 304 Part-II where the person committing the
act possesses knowledge of its dangerous character and of the
likelihood that death would ensue. The decisive enquiry, therefore,
is not merely whether the conduct was rash, reckless or even
grossly negligent, but whether it was accompanied by that higher
degree of awareness which the law denominates as knowledge .
- 45 -
14. STATE v. SANJEEV NANDA carries the principle further
and reiterates that “knowledge” under Section 299 is personal
knowledge attributable to the person who does the act. The
prosecution must therefore establish not merely death, but a causal
nexus between the act of the accused and death, coupled with
knowledge on his part that such act was likely to cause death.
Conversely, where rashness or negligence causes death and
nothing more is discernible, the offence remains within Section
304A. The jurisprudential progression is thus from negligence, to
rashness, to knowledge, and finally to intention , with the
degree of criminal culpability ascending correspondingly.
15. The distinction assumes particular significance in
the case at hand. The petitioner was not behind the wheel;
his 14-year-old son was. Therefore, the knowledge
attributable to the driver cannot, merely by reason of the
relationship of father and son, be transplanted upon the
petitioner. Equally, however, the petitioner cannot seek
discharge merely by asserting that the child clandestinely
took away the vehicle. The charge sheet material, as
- 46 -
noticed, contains statements indicating that the petitioner
himself handed over the keys to his minor son and that this
was not an isolated occurrence but had allegedly happened
on earlier occasions as well. Whether those statements are
ultimately worthy of acceptance is a matter of evidence; at
the stage of discharge, they cannot be wished away by
accepting the defence version as established fact.
16. The matter, therefore, stands on a footing
materially different from a case of mere parental omission or
inadvertence. If a parent consciously places a motor vehicle
in the hands of a 14-year-old child, knowing fully well that
the child is legally incompetent and manifestly unequipped
to drive it upon a public road, the question whether such
conduct carries with it the requisite knowledge of likely fatal
consequences cannot be foreclosed at the threshold. The
alleged positive act is the handing over of the keys and
permitting the minor to drive; the alleged knowledge must
be gathered from that act, its surrounding circumstances
and, importantly, the allegation that such permission had
- 47 -
been granted repeatedly. Whether this crosses the juridical
threshold from gross negligence into culpable homicide is
ultimately a matter that must abide the evidence.
17. The Delhi High Court in MASTER M v. STATE (NCT OF
DELHI) lends considerable support to this approach. It recognizes
that the distinction between Section 304A and Section 304 Part-II
lies not merely in the existence of knowledge, but in its degree
and quality : rashness involves consciousness of a risk coupled
with the hope that the harmful consequence will not occur, whereas
Section 304 Part-II demands conscious awareness that death is a
likely consequence. Significantly, in the context of a minor driving a
vehicle, the Court declined to prematurely efface the graver
offence, holding that the existence of the requisite mental element
is essentially fact-sensitive and must ordinarily await appreciation
of evidence.
18. If the facts obtaining in the case at hand are placed
on the aforesaid legal spectrum, the result becomes
unmistakable. Three precious lives have been extinguished
and another seriously injured. The magnitude of that
- 48 -
tragedy, by itself, cannot constitute Section 304 Part-II;
criminal culpability cannot be measured by counting the
dead. But the prosecution case travels beyond the
consequence. It alleges a conscious and positive act on the
part of the petitioner - of repeatedly permitting his 14-year-
old son to drive and, on the fateful day, of himself handing
over the keys of the car to the child. A motor vehicle in the
hands of a child of fourteen, upon a public highway, is not
merely an instrument being used contrary to law; depending
upon the evidence, it is capable of becoming a source of
obvious and foreseeable peril to every road user.
19. Whether the petitioner possessed the degree of
knowledge necessary to attract Section 304 Part-II is,
therefore, a question that cannot appropriately be buried at
the threshold. His defence that the minor took the vehicle
without his knowledge directly contradicts the prosecution
material and necessarily invites adjudication upon evidence.
A discharge proceeding cannot be converted into a miniature
trial for choosing between these competing versions.
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20. The message of the law must equally be
unambiguous. A parent who knowingly places the steering
wheel in the hands of a child cannot always retreat behind
the minority of that child, when the adventure ends in
catastrophe. Parenthood carries not merely affection and
authority, but responsibility. Roads are shared public spaces,
not training grounds for unlawful indulgence. When parental
indulgence knowingly permits a child incapable in law of
driving to command a machine capable of causing death, and
precious lives are consequently lost, the law is entitled to
inquire, upon evidence, whether the conduct was merely
negligent or had crossed the frontier into culpable
knowledge. That enquiry, in the case at hand, deserves a
trial and not a premature burial at the stage of discharge.
EPILOGUE:
21. Before parting with the judgment, it would not be inapt to
advert to a disturbing facet of the problem which the case at hand
brings to the fore. The statistics in public domain indicates that
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during 2025-26, the State of Karnataka recorded 751 accidents
involving minors , out of an all-India figure of 11,890 , placing the
State sixth in the country in this unenviable category. The figures
further indicate an over-representation of young drivers between 17
and 23 years of age in serious and fatal road accidents. What is
disquieting is that the graph in the State does not appear to be
bending downwards; it is travelling in the opposite direction.
22. Statistics, undoubtedly, cannot supply an ingredient of an
offence where the statute does not. Nor can societal concern
become a surrogate for proof of culpability. Yet, Courts cannot
remain oblivious to the social setting in which an offence occurs.
The case at hand presents a stark reminder of the consequences
that may follow when the keys of a motor vehicle are placed in the
hands of a child who, in the eye of law, is neither entitled nor
equipped to drive it. What may begin as parental indulgence,
momentary permissiveness or youthful exhilaration can, within
seconds, end in irreversible tragedy on a public road.
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23. The law prohibits minors from driving not as an
empty ritual of regulation, but because a motor vehicle,
when entrusted to untrained and legally incompetent hands,
is capable of becoming an instrument of grave peril. Parents
and guardians who permit such adventures cannot treat the
statutory prohibition as a matter of convenience and
thereafter seek complete insulation from criminal
consequences when the foreseeable peril turns into
catastrophe. The steering wheel of a motor vehicle cannot
become a plaything in the hands of a child, nor can a public
road become the playground for such indulgence.
24. The rising incidence of such accidents, therefore,
reinforces the need for Courts to exercise circumspection before
interdicting a prosecution at its threshold where the charge sheet
itself contains material, prima facie , indicating conscious
entrustment of the vehicle to a minor. This is not to hold that every
parent whose minor child causes an accident would ipso facto
become liable under Section 304 Part-II of the IPC. Far from it,
criminal culpability must invariably depend upon the facts of each
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case and the existence of the requisite statutory ingredients. But
where the material prima facie depicts a positive act of entrustment
coupled with circumstances from which the requisite knowledge is
alleged to arise, the prosecution cannot be truncated by conducting
a mini-trial in proceedings seeking discharge or quashment.
25. In the case at hand, therefore, the petitioner cannot be
permitted to secure obliteration of the offence under Section 304
Part-II of the IPC at the threshold. Whether the prosecution would
ultimately succeed in establishing the requisite knowledge beyond
reasonable doubt is entirely a matter for trial. The charge must
face the test of evidence rather than suffer a premature
burial at the threshold.
26. For the aforesaid reasons, finding no merit in the petition,
the following:
ORDER
(i) The Criminal Petition stands rejected .
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(ii) It is made clear that all observations made in the course
of this order are confined exclusively to consideration of
the petitioner’s plea seeking discharge/obliteration of
the offence punishable under Section 304 Part-II of the
IPC.
(iii) The concerned Court shall conduct the trial uninfluenced
by any observation made herein and shall determine the
culpability of the petitioner independently, on the
strength of the evidence that comes on record and in
accordance with law.
Consequently, I.A.No.1 of 2026 also stand disposed.
Sd/-
(M.NAGAPRASANNA)
JUDGE
bkp