(Prayer: Criminal Revision Case filed under Sections 397 and 401 of the Code of Criminal Procedure, against the dismissal order passed by the learned XIX Additional Sessions Judge, Chennai, in Crl.M.P.No.133 of 2015 in S.C.No.174 of 2015, dated 12.04.2016 dismissing the discharge petition filed by the petitioner and seeks to set aside the same.)
1. This Criminal Revision Case is directed against the order passed by the learned XIX Additional Sessions Judge, Chennai, in Crl.M.P.No.133 of 2015 in S.C.No.174 of 2015, dated 12.04.2016 dismissing the discharge petition filed by the petitioner.
2. Heard the learned counsel appearing for the petitioner and the learned Government Advocate (Crl. Side) appearing for the respondent.
3. The learned counsel appearing for the petitioner would contend that charge sheet was filed against the petitioner for the offences punishable under Sections 308 of I.P.C. and 184 of the Motor Vehicles Act and the case was taken on file by the learned XIX Additional Sessions Judge, Chennai, as S.C.No.174 of 2015. He would submit that the road traffic accident will not come under the provision of Section 308 of I.P.C. There is no material on record to frame the charge against the petitioner/accused for the offence under Section 308 of I.P.C. and since there is no intention to commit the offence knowingly by the petitioner, Section 308 of I.P.C. is not made out and only the offence under Section 184 of the Motor Vehicles Act alone is made out against the petitioner. Hence, the learned counsel prayed that the petitioner may be discharged from the charge under Section 308 of I.P.C.
4. The learned Government Advocate (Crl.side) would contend that a reading of the entire evidence of prosecution witnesses and statements of the witnesses recorded under Section 161 of Cr.P.C. would clearly prove that there are materials available to frame the charge under Section 308 of I.P.C. against the petitioner/accused. Hence, the discharge petition filed by the petitioner was correctly dismissed by the learned XIX Additional Sessions Judge, Chennai. There is no illegality or infirmity in the order passed by the learned Sessions Judge and hence, he prayed that the criminal revision case may be dismissed.
5. It is an admitted fact that an accident took place and the respondent police has registered a case against the petitioner on analysing the materials produced by either side. The Investigating Officer has filed the First Information Report against the petitioner, prepared an observation mahazar and drew a rough sketch and also recorded the statements of the witnesses under Section 161 of Cr.P.C. and finally, filed the final report. In this case, on a reading of the F.I.R., it is clearly proved that on the basis of the complaint given by one Subramani, originally, the case was registered for the offences under Sections 279, 338 IPC (2 counts), 337 and 308 of IPC, and subsequently, it was altered to Section 308 of IPC (3 counts) and Section 184 of the Motor Vehicles Act. The complaint given by the complainant viz., Subramani reads as follows:-
( Tamil )
Other witnesses also, in their evidence, have reiterated the similar statements. Even according to the case of the prosecution, the car was coming out of the car parking area and immediately caused accident to the victims. Hence, the accident had occurred only by the driver of the car while came out of the car parking area and crossed the road.
6. Further, in the statement recorded under Section 161 of Cr.P.C., one of the witness K.Subramani had stated as follows:-
( Tamil )
7. In the statement recorded under Section 161 of Cr.P.C., another witness viz., Geetha, has stated as follows:-
( Tamil )
8. One of the eye-witness viz., Vetrivel, in the statement recorded under Section 161 of Cr.P.C., had stated as follows:-
( Tamil )
9. Another eye-witness viz., Krishnan, in the statement recorded under Section 161 of Cr.P.C., had stated as follows:-
( Tamil )
10. On a reading of the above 161 statements, it is clear that the car was coming out from the apartment with rash and negligent manner and caused the accident. Hence, this Court can presume that there are incriminating materials available for the car coming from the apartment in a rash and negligent manner and caused the accident.
11. Further, the Accident Register of Krithick Roshan reads as follows:-
"Alleged H/o RTA hit by a four wheeler while crossing road on 3/7/14 at 12 p.m."
12. Accident Register of Geetha reads as follows:-
"Alleged H/o RTA while crossing road hit by a 4 wheeler on 3/7/14 12 p.m. at Choolai post office"
13. On a reading of the above Accident Registers copy, it is clear that the road traffic accident occurred due to hit by a 4 wheeler while crossing the road on 03.07.2014 at 12.00 p.m.
14. The injured persons viz., Kirthick Roshan (Minor), through his father, has filed a claim petition in M.C.O.P.No.1262 of 2015 and Geetha has filed a claim petition in M.C.O.P.No.1256 of 2015 before the Motor Accidents Claims Tribunal, at Chennai, and in the said petitions, at paragraph No.23, the claimants have stated as follows:-
| 23. | Any other information that may be necessary or helpful in the disposal of this claim here furnish a brief account of how the accident occurred and state how the applicant is entitled to claim compensation and how the respondents are liable to pay compensation claimed. | The accident occurred on 03.07.2014 at 12.00 p.m. on the platform in front of the house bearing Door No.106/2, at Kalathiappa Street, Choolai, Chennai - 600 012 owing to rash and negligent driving of Santro Car TN-04-P-4797 owned by the first respondent and driven by one Mr.Rahul Dhoka who drove in a rash and negligent manner and hit the petitioner and causing grievious injuries to them, resulting in the petitioner suffering injuries stated in the column 11 of this petition. |
16. In view of the above facts and circumstances of the case, this Court is of the view that there are incriminating materials available against the accused to frame the charge for the offence of rash and negligent driving.
17. In the above circumstances, it is useful to refer the judgment of the Hon'ble Apex Court reported in (2000) 8 SCC 568 [Shamsher Khan v. State (NCT of Delhi), wherein, at paragraph Nos.10 to 14, the Hon'ble Apex Court has held as follows:-
"10. The appellant was convicted under Sections 304 and 308 IPC. Both the offences relate to commission and attempt to commit culpable homicide respectively. So culpable homicide is the common factor in both the courts. Section 299 of the Indian Penal Code defines culpable homicide, which has three alternative requirements. They are:
1. doing an act with the intention of causing death of a person, or
2. doing an act with the intention of causing such bodily injury as is likely to cause such death, or
3. doing an act with the knowledge that he is likely by such an act to cause death of another person.
11. Learned counsel for the respondent State made an endeavour to bring the case within the ambit of the third alternative, as the case cannot possibly be brought under any of the other two. The act proved to have been committed by the appellant along with Babu Khan in this case is manufacture of explosive substances like bombs. Hence what is to be established is, the above act must have been done with the knowledge that such act by itself was likely to cause death. If some other act had intervened which the offender did not do consciously which triggered the explosions that could not be counted as the act for that offender. No evidence had been let in by the prosecution to show that mere manufacture of such bombs is likely to cause death of any person, nor has any evidence let in for showing that the appellant had the knowledge that by manufacturing bombs death would possibly be caused to any human being without any other act being done.
12. We may also point out that the prosecution has not brought out any circumstance by which the Court could remotely attribute knowledge to the appellant that by manufacturing and possessing bombs death of any person was a likely consequence. By manufacturing a bomb alone no one can normally think that it would explode without anything more being done. Here something more would have happened which caused the explosion, what was that additional act is unknown to us. At any rate there is no material to show that the appellant had done that additional act.
13. In view of the aforesaid legal position we find no scope to bring the proved facts within the ambit of Section 299 IPC. If so, the question of culpable homicide would stand at bay. We, therefore, find it legally difficult to confirm the conviction either for the offences under Section 304 or for Section 308 IPC. As a corollary we set aside the conviction and sentence passed on the appellant in regard to those two counts.
14. But the appellant cannot escape from the other counts for which he was convicted and sentenced. We confirm the conviction and sentence in regard to those counts."
18. In this case also, there are enough incriminating materials available for framing the charge for the rash and negligent driving of the vehicle. But, for framing the charge under Section 308 of IPC, there is no material available against the accused. Admittedly, on a reading of the evidences, it is clear that the accused has no intention for causing death of a person or no intention for causing such bodily injury as is likely to cause such death and there are no incriminating materials available to show that the accused caused the accident with an intention. Except the incriminating materials for framing the charge under Section 184 of the Motor Vehicles Act, nothing is available to frame the charge under Section 308 of IPC.
19. Section 308 of I.P.C. reads as follows:-
"308. Attempt to commit culpable homicide.- Whoever does any Act with such intention or knowledge and under such circumstances that, if he by that Act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both, and if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Illustration
A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in this section."
20. In this case, the petitioner, who is the driver, drove the car out of the car parking area and committed the accident. On a perusal of the documents including the rough sketch, it is clear that the driver of the car namely, the petitioner drove the vehicle in a rash and negligent manner and caused the accident. There are no materials to show that the petitioner, with an intention to commit the accident, drove the vehicle. Since there is a school situated nearby the place of occurrence, this Court cannot infer that the accused with knowledge or with an intention to cause the accident drove the vehicle. Since the accident occurs within 24 feet from the apartment, this Court cannot infer any incriminating materials to frame the charge under Section 308 of IPC.
21. In view of the above, the argument of the learned Government Advocate (Crl.side) that there are materials available to show that the petitioner, with knowledge and with an intention to commit the accident, drove the vehicle in a rash and negligent manner, is not acceptable. Further, the argument of the learned Government Advocate (Crl.Side) that the accused has knowledge about the location of nearby school and hence, it is one of the incriminating materials available against the accused to frame the charge under Section 308 of IPC, is also not acceptable.
22. In view of the above facts and circumstances of the case, this Court is of the considered view that there are no sufficient materials available to frame the charge under Section 308 of I.P.C. against the petitioner/accused. But at the same time, there is plenty of material available to frame the charge under Sections 279, 337 and 338 of I.P.C. and also under Section 184 of the Motor Vehicles Act. Hence, the dismissal order dated 12.04.2016 passed by the learned XIX Additional Sessions Judge, Chennai, in Crl.M.P.No.133 of 2015 in S.C.No.174 of 2015, is set aside and this Criminal Revision Case is allowed. Consequently, the connected miscellaneous petition is closed. The petitioner/accused is discharged from the charge under Section 308 of I.P.C. but to face trial of other charges. The trial Court is directed to dispose of the case in S.C.No.174 of 2015, within a period of eight weeks from the date of receipt of a copy of this order.