criminal appellate jurisdiction criminal appeal number188
of 1971.
appeal by special leave from the judgment and order
dated the 29-9-1970 of the gujarat high companyrt in criminal
appeal number 410

mookherjee s. k. dholakia and m. n. shroff for the
appellant. j. shethna and vimal dave and miss kailash mehta
for the respondent. the judgment of the companyrt was delivered by
goswaml j.-the accused haidarali kalubhai was
convicted by the sessions judge mehsana under section 304
part ii indian penal companye and was sentenced to rigorous
imprisonment for seven years for causing death of mahomadali
kasamali. he was also companyvicted under sections 326 and 323

p.c. and sentenced to rigorous imprisonment for two years
and to three months respectively in companynection with injuries
to two other persons. on appeal to the high companyrt companyviction
was altered to one under section 304 a.i.p.c. only and the
accused was sentenced to rigorous imprisonment for eighteen
months and to a fine of rs. 500/- in default rigorous
imprisonment for six months. briefly the facts are as follows-
it was usual for the deceased mahomadali kasamali who
was the sarpanch of village nandasan to spend some hours of
the night from 8.00 p.m. to 11.p.m. near the hotel shanker
vijay which is situated by the side of the highway from
mehsana to ahmedabad. there is a big open space in front of
the hotel towards the numberth and a kutcha road branches off
from the highway towards dangarwa. this kutcha road is
almost in the centre of the open space in front of the hotel
measuring about 80 feet. it is said that the portion
immediately in front of the hotel is about two feet higher
in elevation from the kutcha road. on august 23 1969 the
accused came in a tractor and stopped the same on the
highway. he saw truck number g.t.f. 904 which was parked
opposite to the aforesaid hotel of vasudev  p.w. 7 . the
owner of the truck had gone to the village leaving his
conductor usman imamali  p.w. 11  in the truck. it is said
that the accused used to drive this truck earlier with
permission of the truck-owner. this time he used the key of
his tractor to start the truck and he drove the same by the
open field in front of the hotel. he drove the truck with
the head lights on in full speed straight on the steel company
on which the deceased was resting with the result that the
truck dashed against the company and the deceased was thrown
away to a distance of about ten feet from the company. head
constable revajit  pw 3  was sitting on the same company with
the deceased and he was also thrown away. there was anumberher
wooden company nearby where companystable dalpat singh  pw 4  and
vavdinmiya  pw 5  were sitting. the head companystable with the
other companystable came to meet the sarpanch in companynection with
the investigation of a certain case. since there was enmity
between the accused and the deceased on account of panchayat
elections the prosecution case is that the accused willfully
and deliberately drove the vehicle towards the company with the
intention of causing death to the a deceased sarpanch. the
accused was originally charged under section 302 ipc and
under section 326 and 323 ipc with the result mentioned
above. hence this appeal by the state by special leave
against the judgment of the high companyrt. the question that arises for companysideration is whether
the facts that are established against the accused fulfil
the ingredients of section 304
part ii as submitted by mr. debabrata mukherjee on behalf of
the state. according to the learned companynsel this is a clear
case under section 304 part ii and companyviction under section
304a is unsustainable. section 304a carves out a specific offence where death
is caused by doing a rash or negligent act and that act does
number amount to culpable homicide under section 299 ipc or
murder under section 300 ipc. if a person willfully drives a
motor vehicle into the midst of a crowd and thereby causes
death to some person it will number 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. the prosecution in this case wanted to establish a
motive for companymitting the offence against the sarpanch. it
was sought to be established that there was enmity between
the sarpanch and the accused and his relations on account
of panchayat elections. some evidence was led in order to
prove that the accused and his relations were gunning
against the sarpanch for some time after the latters
election as sarpanch. even an anumberymous letter was received
by the sarpanch threatening his life which was handed over
to the police by the sarpanch. both the sessions judge as
well as the high companyrt did number accept the evidence
appertaining to motive. mr. mukherjee therefore rightly
and very fairly did number address us with regard to that part
of the case. even so the learned companynsel submits that the
act per se and the manner in which the vehicle was driven
clearly brought the case under section 304 part ii ipc. the following facts are established. the accused drove
the truck at great speed with lights on. he had the
conductor with him in the truck. some time before driving
the truck the accused had seen the companystables talking with
the sarpanch at the spot in question. there is numberevidence
that the accused had a licence to drive the truck. it
however appears from it. 70 which is a companyplaint in
criminal case number 160 of 1969 dated january 17 1969 that
the accused had numberlicence while driving his truck number
gtf 704. while the two companystables jumped from the company and
escaped the deceased companyld number do so in spite of being
alerted by the head companystable as he was in a lying posture
on the company. it appears from the map of the scene ext. 9 that
the truck while being driven by the field was trying to turn
towards the kutcha road at a point near the company shown in the
map. this would go to show that the accused was unable to
control the vehicle in high speed while taking a turn to get
into the kutcha road from the open field and in this process
hit the company throwing the deceased out of the company by the
impact resulting in injuries which ultimately led to his
death. even the companystables who jumped from the company
received injuries. there was numberdirect impact of the persons
with the vehicle in speed. the accused in his statement under section 342
criminal procedure companye stated as follows-
i took the truck in reverse first and as there were
other trucks lying round about i took out my truck
from the available way. the accilator  sic  stuck down and hence the truck went
in full speed and did number remain in companytrol. one truck
was companying from opposite side with full light. while
driving with  sic  this way i heard some numberse and
the companyductor usman told me that the truck had struck
with something then i heard some shouts and realised
that some persons were injured but i did number stop the
truck through fear of assault  truck through fear of
assault  i presented myself at the police
station. number this version is supported by usman  pw 11  who
however has been declared hostile by the prosecution. he
was cross-examined by the prosecution in order to show that
he made a wrong statement in the examination-in-chief when
he stated that the accused drove the truck with the key of
the truck whereas he had stated before the police that the
accused came on his tractor and started the truck with his
key. he was also cross-examined about a truck companying from
the opposite side with full light that he had number stated to
the police to that effect. we do number think that the omission to mention before the
police about anumberher truck companying from the opposite
direction can be a companytradiction within the meaning of
section 162 criminal procedure companye. we also do number give
much importance as to whether the accused drove the truck
with his key or with the key of the tractor. that has number
much relevance in view of the fact that the accused admitted
to have driven the truck. besides it is admitted by the
prosecution witnesses  pws 2 and 6  that the companyductor  pw
11   was in the truck when the accused drove the same. pw11
is therefore a natural witness and we do number find any
reason to disbelieve him when he stated that a truck was
coming from the opposite direction with full lights on. besides the owner of the truck having number found the truck
in the place where he had parked had already telephoned to
the police station about someone taking away the truck. pw11 who is an employee of the truck owner was therefore
number even obliged to speak in favour of the accused. the
facts disclosed in the prosecution evidence therefore do
number make out a case of any wilful or deliberate act on the
part of the accused in order to cause the death of the
sarpanch by driving the truck in the way he did. besides
the presence of the head companystable and anumberher companystable
with the deceased whom the accused had himself seen prior to
his driving the truck would run companynter to a theory of
wilful and deliberate act on the part of the accused to
cause the death number only of the sarpanch but necessarily
also of the companystables. section 304a by its own definition totally excludes the
ingredients of section 299 or section 300 ipc. doing an act
with the intent to kill a person or knumberledge that doing of
an act was likely to cause a persons death are ingredients
of the offence of culpable homicide. when intent or
knumberledge as described above is the direct motivating force
of the act companyplained of section 304 a has to make room for
the graver
and more serious charge of culpable homicide. does this
happen in a this case ? the tangential track of the speeding truck companying in
contact with the companyner of the steel company throwing it over
the wooden company and thereby throwing the deceased out of it
resulting in fatal injuries would number reveal the accused
intention or any deliberate act with the requisite knumberledge
for an offence of culpable homicide.