Criminal Appeal No.21 of 2008. Case: Shri Sitaram Kande S/o Ganpat Kande Vs State of Goa represented through Public Prosecutor. High Court of Bombay (India)

Case NumberCriminal Appeal No.21 of 2008
CounselR Satardekar
JudgesN A Britto, J
IssueMotor Vehicles Act, 1938 - Sections 119, 134(A), 134(B) and 190; Motor Vehicles Act, 1988; Probation of Offenders Act, 1958 - Section 4; Indian Penal Code - Sections 279, 299, 300, 302, 304, 304(2), 304(A), 306, 323, 325, 337 and 338; Criminal Procedure Code (CrPC) - Sections 222 and 313
Judgement DateJune 23, 2009
CourtHigh Court of Bombay (India)

Judgment:

N A Britto, J.

This appeal is by the accused who was charged and tried under Sections 279, 338, 304(II) I.P.C. but has been convicted under Sections 323, 325 and 304(II) I.P.C. The accused was also charged, tried and convicted under Sections 119, 134(A) and (B) and Section 190 of the M.V. Act, 1938. There is no grievance made about this charge and conviction.

The accused came from the eastern bypass driving his truck No. MH-05-2294, entered the wrong side of the highway, near the junction, near Green Park Hotel and then travelled a distance of about 1.8 kms. When the accused reached opposite Ticlo Petrol Pump, the accused first gave a dash on an oncoming Maruti Zen Car bearing No. GA-01-R-2883 causing the death of Mohammad Siddik, Mrs. Tahseen Siddik and Master Mohammad Zahid and causing injuries to Arshiya and grievous injury to Junaid Siddiki and thereafter dashed the truck on another oncoming truck bearing No. MH-04-AL-593. It appears that the accused had also caused an accident as he was coming from Banda to Goa and the accused stands charged before J.M.F.C., Sawantwadi for having committed offences punishable under Sections 279 and 304(A) I.P.C. It is stated that the accused at Banda knocked down a cyclist causing his death. The said case is pending trial.

There is no dispute that the complaint/first information was initially filed against the accused under Sections 279, 337, 304(A). It appears that after the statements of PW5/Amjad Khan and PW7/Sagar Nanodkar were recorded that the case was converted from Section 304(A) to Section 304(II) I.P.C. This is evident from the letter dated 12-4-2006 sent by the Police Inspector, Mapusa Police Station to the Assistant Engineer, Mapusa and this position is not disputed by the learned Public Prosecutor. It appears that charge under Section 304(A) I.P.C. was converted to Section 304(II) I.P.C. because according to the prosecution, the said two witnesses had shouted to the accused stating that it was a no entry road and knowingly the accused speeded without listening to them and therefore had knowledge that he would cause death.

Although charge from Section 304-A was converted to Section 304(II) I.P.C. while submitting the charge-sheet as well as at the time of framing the charge Sections 279 and 338 were not substituted and the learned Assistant Sessions Judge framed charges under Sections 279 and 338 I.P.C. also but at the time of conviction convicted the accused under Sections 323, 325 I.P.C.

Before the learned trial Court, as well as before this Court, on behalf of the accused, it is submitted that this was not a case for the accused to be convicted under Section 304(ii) I.P.C. and at the most the case was for conviction under Section 304-A. This is recorded by the learned trial Court in para 10 of the Judgment. It was argued on behalf of the accused, then and now, that the accused could be convicted only under Section 304-A I.P.C. and not under Section 304(II) I.P.C. as at the utmost it could be said that the accused was rash and negligent in driving the truck and that there were no facts proved to show that the accused had knowledge that by his act he was likely to cause the death of others. The learned trial Court has convicted the accused under Section 304(II) I.P.C. because the accused drove the truck only with one head light working; in a no entry zone/wrong lane; and in a fast speed and therefore the accused knew that by the said act he was likely to cause death of any person and thus Section 304(II) was clearly attracted to the facts of the case.

Shri R. Satardekar, learned Counsel appearing on behalf of the accused has submitted that Section 304-A is distinct and separate from Section 304(II) I.P.C. and that prosecution by submitting the charge-sheet for offences under Sections 279, 338 had admitted that it was a case of rash and negligent driving inasmuch as the Judge also framed charge against the accused under the said Sections which was not challenged by the prosecution and therefore the prosecution now cannot turn round and say that the death of the occupants of the said truck was caused with knowledge that his act of driving was likely to cause death. Learned Counsel further submits that all the offences for which the accused was charged took place in the course of a single act of rash driving, if at all, and therefore the accused could not be charged both for rash or negligent driving as well as causing death with knowledge that his driving could cause death. Learned Counsel further submits that PW5/Amjad Khan and PW7/Sagar Nanodkar were examined by the prosecution only in an attempt to attribute knowledge to the accused i.e. he had knowledge that death would be caused by his driving. Learned Counsel further submits that they were chance witnesses and their evidence shows that they could not have been present at the time and place from where they claimed to have shouted at the accused at the relevant time. Learned Counsel also submits that assuming for a moment that the accused had driven with only one head light, that act too was a reckless act and no knowledge that death would be caused could be attributed to the accused. He further submits that there is no corroboration on material aspects in the evidence of PW5/Amjad and PW7/Sagar.

The first question which requires consideration is whether the accused could be charged and tried under Sections 279, 338 I.P.C. but convicted under Sections 323 and 325 I.P.C.?

Section 279 deals with driving of a vehicle on a public way in a manner so rash or negligent as to endanger human life, etc. The offence is made punishable with imprisonment which may extend to six months, or with fine which may extend to one thousand rupees. Section 338 deals with causing grievous hurt by doing an act so rashly or negligently as to endanger human life, etc. The punishment provided is two years or fine. Section 323 deals with voluntarily causing hurt and provides punishment which may extend to one year and with fine. Likewise, Section 325 deals with voluntarily causing grievous hurt and the punishment provided is imprisonment which may extend to seven years. It is obvious that Sections 279 and 338 are less serious offences compared to Sections 323 and 325 I.P.C. There is no doubt that if an accused is charged for a major offence but is not found guilty thereunder, he can be convicted of a minor offence, if the facts established indicate that such minor offence has been committed by the accused. However, the reverse of that proposition cannot be accepted and an accused who has been charged for a minor offence cannot be certainly convicted for a major offence. It appears that the learned trial Court having come to the conclusion that the death of the said persons was caused by the accused with knowledge of causing death, under Section 304(ii), the learned Judge with no other option left, converted the offences caused due to rash or negligent driving into offences of voluntarily causing hurt and grievous hurt.

The Apex Court in Sangaraboina Sreenu v. State of A.P., 1997 5 SCC 348 held that Section 306 I.P.C. cannot be said to be a minor offence in relation to an offence under Section 302 I.P.C. within the meaning of Section 222 Cr.P.C. for the two offences are of distinct and different categories, while the basic constituent of an offence under Section 302 I.P.C. being homicidal death and under Section 306 I.P.C. being suicidal and abetment thereof. Suffice it to state that the accused having been charged and tried for minor offences under Sections 279, 338 I.P.C. could not have been convicted under Sections 323, 325 I.P.C. apart from the fact that the latter offences were of distinct and different categories than the former. The word minor offence is not defined in the Code but the tests usually followed to determine it is firstly, the prescribed punishment and secondly the main ingredients of the offences ought to be common. See, AIR 2001 SC 921. In the case at hand the ingredients are also totally different. The accused therefore could not have been convicted under Sections 323 and 325 I.P.C, after having been charged and tried under Sections 279, 338 I.P.C.

The next question is whether the accused could be convicted under Section 304(II) I.P.C.? For the...

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