Judgment:
Surinder Singh, J.
1. The appellant has challenged his conviction, passed by the learned trial Court, in Sessions Trial No. 10-N/7 of 2006, decided on 17.1.2008, whereby he was convicted and sentenced under Section 304 Part-II of the Indian Penal Code and was ordered to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 20,000/ - and in default of payment of fine to further undergo imprisonment for a period of one year. The benefit of Section 428 of the Code of Criminal Procedure was also given to him.
2. The appellant along with his co-accused Surender Singh and Dev Raj were tried for the offences punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code, in short 'the Code', for allegedly causing the murder of Jawahar Lal and Jaswant Singh by crushing them under the truck No. HP-14-4425 and the appellant herein was also tried for the offence under Section 181 Motor Vehicles Act. The prosecution failed to prove the charges against co-accused Surender Singh and Dev Raj and under Section 181 of the Motor Vehicles Act against the appellant, as such, they were acquitted whereas the appellant was convicted and sentenced under above offences.
3. In short, the prosecution case can be stated thus. The appellant was a driver of the aforesaid truck and Dev Raj was the conductor. On 23.12.2005 at about 10.30 p.m., the appellant drove his truck to Kedarpur. At that time Surender Singh co-accused was sitting therein. The deceased Jawahar Lal was running a Dhaba under the head and style of 'Chaudhary Dhaba' at Kedarpur and PW-1 Krishan Lal was his domestic servant. PW-2 Buti Nath, the brother of deceased Jawahar Lal was sitting in the said Dhaba. The said truck was parked by the appellant in the compound of the front of the Dhaba. Thereafter, the appellant along with Dev Raj alighted from the truck and went to the Dhaba aforesaid. They took the glasses and Jug of water and went inside the truck. The appellant along with co-accused took the liquor and thereafter placed the order for their meals, which was served to them by Jaswant Singh, the another deceased, who was working as servant in the Dhaba. After sometime, the appellant demanded more Chapaties, but Jawahar Lal told him that the Dhaba has been closed and Chapaties cannot be provided and in turn asked them to make the payment for the food taken by them on which the appellant picked up an altercation. Thereafter the appellant boarded the truck and tried to move away the truck, but Jawahar Lal who was dragged inside the truck was pushed by one of the accused, as the truck was moving Jawahar Lal got crushed under the rear tyres of the truck and died on the spot.
4. On seeing this, Jaswant Singh (the another deceased) went into the front of the truck with an idea to stop it, but he was hit by the truck and was crushed under the tyres of the truck.
5. On seeing all this, PW1 Krishan Lal servant of the deceased owner of the Dhaba with the idea to stop the truck, threw a flower pot on the truck, which hit its bumper which caused dent and indicator of the truck got broken and its parts fell on the spot along with flower pot, however, the appellant drove off the truck towards Badripur. Jaswant Singh was having some sign of life, but died on the way to hospital.
6. The police was informed telephonically. Thereafter the officials of all the barriers were informed directing them to apprehend the truck and its occupants.
7. PW-14 Sub-Inspector Manish Chauhan proceeded to the spot, recorded the statement Ex.PW1/A of PW1 Krishan Lal under Section 154 of the Code of Criminal Procedure, on the basis of which a formal FIR Ex.PW10/A was registered in Police Station Paonta Sahib.
8. The police took the photographs Ext.PW14/B-l EX.PW14/B-8 and the blood stains soil was taken into possession from the spot vide memo Ex.PW1/B. The parcel was sealed. The pieces of the indicator of the truck lying on the spot were also taken into possession and were sealed. The broken parts of the flower-pot lying on the spot were also taken into possession.
9. The police prepared the inquest reports of the deceased persons. The autopsy of the dead bodies of Jawahar Lal and Jaswant Singh were conducted by the doctor in Civil Hospital Paonta Sahib. In the opinion of the doctor, Jawahar Lal died on account of crush injury on his head. His post-mortem report is Ex.PW7/A. The ante-mortem injuries were also found on the person of Jaswant Singh. There was fracture of the Pelvis and in the opinion of the doctor, he had died due to blunt trauma abdominal viscera with fracture of pelvis and hemorrhagic shock. His post-mortem report is Ex. PW7/B.
10. The said truck was found to be parked in the compound of M/s. Mohan Mekin Brewery at Solan, which was taken into possession by the police on 24.12.2005 along with its documents and keys vide memo Ex. PW3/A.
11. The truck was got mechanically examined by PW6 Yoginder Kumar. His report is Ex. PW6/A.
12. The remaining broken pieces of the indicator, which were found on the truck were also seized and sealed in separate parcels.
13. The police also prepared site plan of the place of alleged incident and the spot map of the recovery of the truck.
14. The entries of the truck from Behral barrier were taken into possession vide memo Ex. PW5/B.
15. The appellant was arrested on 28.12.2005. The forensic science report Ex. PY revealed that the pieces of the indicator lifted from the spot and the pieces of the indicator found on the truck were the part of the same.
16. The other accused persons were also arrested. The statements of the witnesses were recorded by the police and on completion of the challan, it was presented in the Court under Sections 302 and 201 read with Section 34 of the Code and also under Section 181 of the Motor Vehicles Act for the trial of the appellant. Finding prima-facie a case under the aforesaid Sections, each of the accused persons was accordingly charge-sheeted. The appellant and his co-accused denied the charges and claimed trial.
17. To prove its case, the prosecution examined its witnesses and the accused persons were also examined under Section 313 of the Code of Criminal Procedure. They raised the defence that when they were taking the food inside the truck, the owner of the Dhaba along with two other persons refused to serve them more Chapattis, as he wanted to close the Dhaba and demanded the money, but the appellant was not willing to pay unless they supply the full meal. On this, the Dhaba owner got enraged and he along with his two servants assaulted them with 'Chimta' and 'Khauncha' and PW-1 Krishan Lal threw a flower pot on them. Thus, sensing danger to all of them went inside the truck and appellant drove off the truck from the compound of the Dhaba, but in the meantime, the owner of the Dhaba Jawahar Lal and his servant Jaswant Singh, both climbed from the window of the truck and tried to drag them out and in that process, they fell down and died, but neither the appellant nor his co-accused had any intention to kill them.
18. The defence raised did not find favour with the learned trial Court, as such, on the examination of the record, it came to the conclusion that the other accused had no role in killing the aforesaid deceased persons, but however, in the opinion of the trial Court, it was a case falling under the provisions of Section 304 Part-II of the Code against the appellant, as such, he was convicted and sentenced as aforesaid.
19. Shri K.D. Sood, learned Counsel for the appellant has raised a very short question that the facts disclose that it was a case falling under Section 304-A of the Code and not under Section 304 Part-II of the Code. Since the appellant had already undergone the sentence more than which is provided under Section 304-A of the Code, as such, he deserves to be released.
20. Contra, Shri J.S. Guleria, learned Assistant Advocate General supported the impugned of conviction and sentence against the appellant under Section 304 Part-II I.P.C.
21. I have given my thoughtful consideration to the respective contentions of the parties and have carefully gone through the proved facts on record.
22. Section 304-A of the Code deals with causing death by negligence and it reads as under:
304-A. Whoever causes the death of any person by doing any rash or negligent act nor 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.
The provisions of this Section apply to cases where there is no intention to cause death, and no knowledge that the act done in all probability would caused death. Where the act is in its nature criminal, the Section has no application. In fact this Section also does not apply to cases where the death has arisen, not from the negligent or rash mode of doing the act, but from some result supervening upon the act which could not have been anticipated. In other words, this Section deals with homicide by negligence and not to a case in which there has been the voluntary commission of an offence against the person.
23. In fact Section 304-A is directed at offences outside the range of Sections 299 and 300 and obviously contemplates those cases into which neither intention nor knowledge enters. For the rash and negligent act which is declared to be a crime is one 'not amounting to culpable homicide' and it must, therefore, be taken that intentionally or knowingly inflicted violence directly and willfully caused, is excluded.
24. Whereas Section 304 of the Code provides punishment for 'culpable homicide not amounting to murder', which reads as under:
304. 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 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 and 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.[Emphasis mine]
25. The perusal of the above provision shows that there are two kinds of punishments applying to two different circumstances:
(i) If the act by which death is caused is done with intention of causing death or such bodily injury as is likely to cause death, the punishment is imprisonment for life, or imprisonment of either description for a term which may extend to ten years and fine.
(ii) If the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
26. Thus the fine distinction in both the Sections is that Section 304-A IPC has no 'intention' or 'knowledge' to cause death whereas, in Section 304 IPC 'intention' and 'knowledge' to cause death is sine quo non. In the instant case, it is not denied that the appellant was not fleeing with the truck at the relevant time.
27. PW-1 Krishan Lal an eye-witness used to work in the Dhaba of Jawahar Lal deceased at Kedarpur. Appellant had admitted that he along with his two co-accused had been taking meals inside the truck, which was being provided to them by the Dhaba owner. It is also admitted that the appellant demanded more Chapaties on which Jawahar Lal, the owner of the Dhaba told that the Dhaba had been closed and the same cannot be provided and he asked him to make the payment of food. PW-1 Krishan Lal testified on oath that on demanding the money by Jawahar Lal for the food consumed, the accused persons dragged him towards the truck. In the meantime, the appellant boarded the truck, put it into motion, when the truck was moving his co-accused pushed Jawahar Lal outside the truck. He fell down on the ground with a result Jawahar Lal was crushed under the rear tyre of the truck and died on the spot. Further in order to stop the truck, Jaswant Singh another deceased moved towards the front side of the truck, but he was hit by the bumper of the truck and he too got crushed under it. The appellant-truck driver neither stopped his truck when Jawahar Lal was crushed nor when Jaswant Singh was hit and got crushed beneath the front tyres. Thereafter, in order to get the truck stopped, he (PW-1) threw a cemented flower pot towards the truck which hit the bumper with the result the indicator of the truck got broken and the flower pot fell down and broke into pieces. The truck driver managed to drove off the truck towards Badripur, along with his accomplices and all this happened in the presence of PW2 Buti Nath and Kapoor Singh in a moment that PW1 could not intervene. In his cross-examination, he stated that Jawahar Lal had climbed from the side of window of the driver and demanded money, but no cross-examination has been conducted with respect to the death of Jaswant Singh as revealed by him in his examination-in-chief.
28. PW-2 Buti Nath has afforded the corroboration to his statement. He categorically stated that when Jaswant Singh went to get the truck stopped, he was hit by the front side of the truck and the truck driver ran away from the spot towards Badripur. Even to this witness, in cross-examination, the manner in which Jaswant Singh was hit has not been assailed.
29. In his statement recorded under Section 313 of the Code of Criminal Procedure, although the appellant has admitted himself to be a driver of the said truck at the relevant time, but surprisingly expressed his ignorance about crushing of both the persons under the truck and their deaths.
30. On the reappraisal of the evidence, I find that there is ample evidence on record to conclude that it was a case falling under Section 304 Part-II of the Code and not under Section 304-A of the Code as canvassed by the learned Counsel for the appellant.
31. In the instant case, both the deceased were hit by the truck not when the appellant was normally driving it on a highway, but they were crushed under the truck when the appellant had tried to flee in the truck in question from the compound of Dhaba without making the payment of the food, which was demanded by the deceased persons. The appellant after Jawahar Lal got crushed knowingly hit Jaswant Singh with the truck with the knowledge that his act is likely to cause his death.
32. Therefore, as a sequel of the above discussion and the facts emerging on the record, the knowledge of death under Sections 299 of the Code can be safely attributed to the appellant and he was, therefore liable under Section 304 Part-II of the Code, as such, the appellant was rightly convicted and sentenced by the learned trial Court for the said offence, which requires no interference of this case, as such the appeals sans merits and is accordingly dismissed.
Send down the records.