Crl.R.No.1322 of 2007 -1 - IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Crl.R.No.1322 of 2007 Date of Decision : 4.8.2008. Sukhdev Singh ..Petitioner. Vs. State of Punjab ..Respondent. CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present : Mr.Parveen Kumar, Advocate for the petitioner. Mr.I.P.S.Sidhu, Sr.DAG Punjab. RAKESH KUMAR JAIN, J. This revision petition is directed against order dated 8.6.2007 passed by Sessions Judge, Hoshiarpur vide which the petitioner has been charged under Section 304 IPC. According to the averments contained in the FIR, on 11.10.2006, complainant Seema Sharma along with her six year old daughter Ankita was going to computer centre near bus stand, Ambi. While they were at a short distance from the bus stand at about 3.45 p.m. a Mahindra Jeep bearing No.HP-19B-0408 came from Talwara side being driven very fast and in a negligent manner by its driver and hit against her daughter who was going on the right side of the road as a result of which she fell down on the road due to the impact of the jeep. On seeing the accident, her uncle Dharamvir Sharma son of Durga Dass came there and stopped the jeep. The driver of the jeep disclosed his name as Sukhdev Crl.R.No.1322 of 2007 -2 - Singh son of Dharam Singh resident of village Beri (HP). A number of persons gathered at the spot. On seeking the condition of her daughter, driver of the jeep fled away leaving his jeep standing there. It is further mentioned in the FIR that she had taken her daughter to CHC Hospital Bhul Kalota where the doctor declared her daughter dead. It was alleged that the accident had occurred due to the negligence of the jeep driver. After the FIR was registered, statement of Dharamvir Sharma, uncle of the complainant recorded under Section 161 Cr.P.C., who narrated the incident on the same lines as narrated by the complainant and has also categorically stated that the accident had taken place due to the negligence of the jeep driver. Statements of the other witnesses namely Pankaj Sharma and Sukhdev Mitter were also recorded on the same day i.e. 11.10.2006 who had stated that they have been told that accident had taken place due to the negligence of the jeep driver. Thereafter, challan was presented under Section 304 IPC and vide order dated 9.3.2007, Judicial Magistrate Ist Class, Dasuya, on finding a prima-facie case under Section 304 IPC committed the case to Sessions Court, Hoshiarpur for trial. On 8.6.2007, the Sessions Judge, Hoshiarpur framed the charge under Section 304 IPC alleging that the petitioner has committed culpable homicide by causing death of Ankita not amounting to murder and thereby committed offence under Section 304 IPC. Counsel for the petitioner has argued that the impugned order has been passed by the Court below illegally as no offence under Section 304 IPC is made out even from the reading of the FIR and statements of the witnesses which have been made a part of this record by way of Annexures P-1 to P-4. Counsel for the petitioner has vehemently argued that in the case Crl.R.No.1322 of 2007 -3 - of culpable homicide, intention of causing death is necessary. Counsel has referred to Section 299 of IPC, which is reproduced as under : “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.” According to the above provision, intent and knowledge are the ingredients of Section 299 IPC which postulate the existence of a positive mental attitude and this mental condition is the special mens rea necessary for the offence. Counsel for the petitioner has submitted that the present case is covered by Section 304-A IPC as death has been caused unintentionally due to the negligent act. Section 304-A IPC is reproduced as under : “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.” Referring to the contents of the FIR which is recorded by the mother of the deceased, who is the eye witness as well as the statement of Dharamvir Sharma, who is also alleged to be eye witness, counsel for the petitioner submits that both the witnesses have stated unison that “This accident occurred due to the negligence of the jeep driver. Further, other two witnesses namely Pankaj and Sukhdev have also stated that they were told in the same language “On asking, I was told that accident took place due to the negligence of the driver of the jeep No.HP-19-B-0408.” Crl.R.No.1322 of 2007 -4 - It is, therefore, argued by the counsel for the petitioner that once the statement of the two eye witnesses including the statement of the mother of the deceased, is to the effect that accident had taken place with Mahindra Jeep bearing No.HP-19-B-0408, which was coming from Talwara side driven very fast and in a negligent manner by its driver, charge at the most should have been framed under Section 304-A IPC instead of Section 304 IPC in which the intention/mens rea is sina qua none. Counsel for the respondent-State has very fairly conceded the above stated position. In view of the admitted fact that the allegations made by the complainant and the statements made by the witnesses are to the effect that the accident had taken place due to the rash and negligent act of the driver of the jeep. The offence at the most falls within the definition of Section 304 IPC and in no manner, it could be termed to be an offence under Section 299 IPC punishable under Section 304 IPC because the basic ingredient intention to cause death as stipulated in Section 299 IPC is conspicuously absent. In view of the above, the present petition is allowed and impugned order dated 8.6.2007 is set aside and it is ordered that the petitioner be charged and tried under Section 304-A IPC by the competent Court of jurisdiction. (Rakesh Kumar Jain) 4.8.2008 Judge Meenu