ASHOK VRAJLAL KHAKKHAR vs STATE OF GUJARAT
- Court
- Gujarat High Court
R/CR.RA/179/2021 JUDGMENT DATED: 06/05/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 179 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
✔
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ASHOK VRAJLAL KHAKKHAR & ORS.
Versus
STATE OF GUJARAT
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Appearance:
MR. RAHUL R DHOLAKIA(6765) for the Applicant(s) No. 1,2,3
MR ROHAN RAVAL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 06/05/2026
JUDGMENT
1. RULE . Learned advocates waive service of notice of
rule on behalf of the respective respondents.
2. By way of present revision application under Sections 397
read with 401 of the Code of Criminal Procedure, 1973 seeking
to quash and set aside the order dated 18.02.2021 passed by the
th
learned 4 Additional Sessions Judge, Savarkundla below
application Exhibit 8 in Sessions Case No.3 of 2020.
3. The brief facts of the case are the an FIR being I-C.R. No.
11 of 2008 came to be registered on 08.04.2008 with
Savarkundla Town Police Station for the offences punishable
under Sections 304, 407, 286 and 114 of the Indian Penal Code
and Sections 3 and 7 of the Essential Commodities Act in
connection with an incident dated 26.03.2008. It is the case of
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the prosecution that the accused persons, in connivance with
each other, had arranged for illegal unloading of a tanker
bearing registration No. GJ-6-9381 containing M.F.O. (Mixed
Fuel Oil), which was originally loaded from GAIL India Company,
Waghodia for delivery at Chhattisgarh, at a godown situated at
Savarkundla. During the unloading process, a fire allegedly
broke out due to sparks, resulting in the death of two workers as
well as injuries to the tanker driver and the tenant of the
godown, who subsequently succumbed to the injuries. During
investigation, statements of witnesses and family members of the
deceased revealed that the applicants and other accused persons
were allegedly involved in operating the business and arranging
the unloading work. The applicants were granted anticipatory
bail by the respective courts and thereafter approached this
Hon’ble Court for quashing of the FIR, however, the said
proceedings were withdrawn with liberty to avail appropriate
remedy. Upon completion of investigation, charge-sheet came to
be filed on 21.09.2009 and the applicants thereafter preferred an
application under Section 227 of the Code of Criminal Procedure
seeking discharge, contending inter alia that even if the entire
prosecution case is accepted as true, the ingredients of Section
304 IPC are not made out and at the most the allegations
disclose an offence of rash or negligent act punishable under
Section 304A IPC or Section 286 IPC. The said discharge
application below Exh.8 in Sessions Case No. 03 of 2020 (Old
Sessions Case No. 10 of 2012) came to be rejected by the learned
th
4 Additional Sessions Judge, Savarkundla, which has given rise
to the present proceedings.
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4. Heard learned advocates for the respective parties.
5. Learned advocate for the applicants submitted that the
th
impugned order dated 18.02.2021 passed by the learned 4
Additional Sessions Judge, Savarkundla below Exh.8 in Sessions
Case No.03 of 2020 (Old Sessions Case No.10 of 2012) is illegal,
arbitrary, perverse and contrary to the settled principles of law.
It was contended that the learned trial Judge failed to properly
appreciate the submissions advanced on behalf of the applicants
as well as the judgments relied upon while rejecting the
discharge application. Learned advocate further submitted that,
even if the entire case of the prosecution is accepted as true, the
allegations made in the FIR and the charge-sheet do not disclose
the essential ingredients of an offence punishable under Section
304 IPC, inasmuch as there is no material indicating any
voluntary act, intention or knowledge attributable to the
applicants so as to constitute culpable homicide not amounting
to murder and, at the highest, the unfortunate incident may
amount to an accident arising out of negligence. It was further
submitted that, in light of the prosecution having itself invoked
Section 286 IPC, the case would at the most fall within the ambit
of negligent conduct with respect to inflammable substances or
Section 304A IPC. Learned advocate further submitted that the
offence under Section 407 IPC is also not made out against the
applicants, as the allegations do not satisfy the ingredients of
criminal breach of trust as defined under Section 405 IPC.
Therefore, it is submitted that the application may be allowed.
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6. Learned APP appearing for the respondent-State opposed
the application and submitted that the learned trial Court has
rightly rejected the discharge application after considering the
material collected during investigation. It was contended that
sufficient prima facie evidence is available on record showing the
involvement of the applicants in the illegal storage,
transportation and handling of highly inflammable material
without following requisite safety measures, which resulted in
the unfortunate incident causing loss of human lives. It was
therefore submitted that the charges have been rightly framed
and no interference is warranted.
7. Having heard the learned advocates appearing for both the
sides and upon perusal of the nature of the allegations as well as
the charge-sheet material, it appears that the charge-sheet has
been filed inter alia for the offence punishable under Section 304
IPC. Even if the case of the prosecution is accepted as it stands,
there is no material indicating any mens rea, intention or
knowledge on the part of the applicants for commission of the
alleged offence. There is also no material to suggest that the
applicants had voluntarily committed any act with the intention
of causing death or causing such bodily injury as was likely to
cause death. A plain reading of Section 304 IPC makes it clear
that, for attracting the said provision, there must exist either an
intention to cause death or bodily injury likely to cause death, or
knowledge that the act was likely to cause death. Section 304
IPC reads as under:
“304. Punishment for culpable homicide not amounting to
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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.”
8. In the present case, no such intention or knowledge is
prima facie discernible from the material collected during
investigation and, therefore, the question of applicability of
Section 304 IPC does not arise.
9. On the contrary, even if the allegations made by the
prosecution are accepted in toto, the same clearly reveal that the
prosecution itself has filed the charge-sheet under Section 286
IPC, which pertains to negligent conduct with respect to
explosive substances. Section 286 IPC reads as under:
“286. Negligent conduct with respect to explosive substance.—
Whoever does, with any explosive substance, any act so
rashly or negligently as to endanger human life, or to be likely
to cause hurt or injury to any other person, or knowingly or
negligently omits to take such order with any explosive
substance in his possession as is sufficient to guard against
any probable danger to human life from that substance, shall
be punished with imprisonment of either description for a term
which may extend to six months, or with fine which may
extend to one thousand rupees, or with both.”
10. Upon perusal of the investigation papers, it appears that
the allegation against the accused persons is that highly
inflammable material was transported and stored without
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requisite authorization, licence or safety measures and that,
during the process of transferring the petroleum product into
barrels at the godown, fire erupted due to sparks, resulting in
the unfortunate incident. Thus, even if the entire prosecution
case is accepted as true, at the highest the allegations disclose
negligent handling and transportation of inflammable
substances without observing necessary safety norms. Such
allegations may constitute negligence on the part of the accused
persons, but do not satisfy the essential ingredients of Section
304 IPC.
11. In this context, reference deserves to be made to the
judgment of the Hon’ble Supreme Court in Kurban Hussein
Mohamedalli Rangawalla v. State of Maharashtra , AIR 1965
Supreme Court 166 wherein the Hon’ble Apex Court considered
the distinction between culpable homicide and negligent acts
involving combustible substances. The Hon’ble Supreme Court,
in the facts of the said case, set aside the conviction under
Section 304A IPC while upholding the conviction under Section
285 IPC.
12. Considering the allegations and the material available on
record, this Court is of the considered opinion that the acts
alleged against the applicants, at the highest, may amount to
negligent conduct in relation to inflammable substances for
which specific provisions have been enacted under Sections 285
and 286 IPC. However, in absence of any intention or knowledge
attributable to the applicants, no offence punishable under
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Section 304 IPC is made out.
13. It is a settled principle of law that where two views are
possible on the basis of the material available on record, the view
favouring the accused must be adopted at the stage of discharge.
In this regard, reliance may be placed on the decision in Ygesh
alias Sachin Jagdish Joshi vs. State of Maharashtra, (2008) 2
GLH 596 .
14. Before proceeding further, it would be apt to refer to
relevant provisions of law, which are quoted 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.”
15. Before Section 30 4 can be invoked, the following
ingredients must be satisfied;
“(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
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bodily injury is such that it is likely to cause death (Part II).”
16 . In this regard, reference may also be made to the judgment
of the Hon’ble Supreme Court in State of Mahadev Prasad
Kaushik v. State of Uttar Pradesh , reported in (2008) 14 SCC
479 .
17. Resultantly, the revision application is partly allowed. The
applicants-accused are discharged from the charge of offence
under Section 304 of IPC, however, the applicants-accused must
stand to trial for the offence punishable under Section 407, 286
and 114 of the IPC and Sections 3 and 7 of the Essential
Commodities Act. Rule is made absolute to aforesaid extent.
Interim relief, if any granted earlier, stands vacated.
18. Since the applicant is discharged from the offence under
Section 304 of IPC only, the learned Sessions Judge is directed
to return the record to the Court of competent jurisdiction to
proceed further. It is clarified that these reasons are tentative in
nature and this Court has not entered into the merits of the
matter or allegations and the counter-allegations leveled by
respective parties.
(HASMUKH D. SUTHAR,J)
ALI
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