- (1.) ON the accusation that Ramji, driver of Bharat Petrolium Tanker, bearing registration No. U. P. 736 by rash and negligent driving caused the death of the deceased persons, an FIR was recorded in the concerned police station. After investigation charge-sheet under Sec tion 302, IPC read with Sections 3/112, 42/112 and 46/112 of the Motor Vehicles Act was submitted in the Court of the Chief Judicial Magistrate, Varanasi, who committed the accused to the Court of Sessions, where the case was registered as S. T. No. 307 of 1980-State v. Ramji and then it was transferred to the Vth Additional Sessions Judge, Varaaasi for trial who fixed the case for framing of charge against the accused on 26-10- 1981. After hearing the arguments the trial Court framed the charge under Section 304 (2) IPC and adjourned the case to 2-3-1982 for recording prosecution evidence.
(2.) FEELING aggrieved against the order of framing the charge under Section 304 (2), IPC the accused preferred this application under Section 482, Cr. P. C. claiming that on the basis of material before the Court offence under Section 304 (2), IPC was not made out. I have heard the learned counsel for the parties and perused the re cord. The sole argument advanced by learned counsel for the petitioner is that the accused while driving the tanker in question on the highway did not expect that two vehicles would be parked on the road in such a manner that there was no place on the road for the third vehicle to pass that spot and while driving the vehicle on the national highway the natural speed being a little higher, in spite of application of brakes the tanker could not have been stopped so as to avoid the accident and in the circumstance of the case the maxim 'reships liquated' is fully applicable and it cannot be said that he had done the act of driving the tanker with the knowledge that it was likely to cause death, but without an intention to cause death or to cause such bodily injury as was likely to cause death and, therefore, his case did fall within the ambit of the provisions of Section 304, Part II of the I. P. C. In support of his argument he has cited at the Bar Slate of Gujarat v. faired All Kalubhai, 1976 SCC (Crl) 211 (DB) and Gurdeo Singh Sardar Puran Singh v. The Emperor, AIR 1941 Lah 459. I have given a thoughtful consideration to the above said argument of the counsel for the petitioner. Doing an act with the intent to kill a person of knowledge that doing of an act was likely to cause the person's death are the ingredients of offence of culpable homicide. When such intent or knowledge is not the direct motivating force of the act complained of, Section 304 Part II has to make room for the lesser charge of causing death any person doing any rash or negligent act not amount to culpable homicide In the instant case where the appellant was driving a tanker on the high way, it could not be said that it was a case of any willful or deliberate act on his part in order to cause the death of the deceased persons by driving such tanker in the way he did. 4. Under these circumstances this application is allowed. The charge framed under Section 304, Part II of the IPC by the Court below is converted to that under Section 304-A, IPC. The parties are directed to appear before the trial Court on 19-7-1995. The trial Court taking the charge to be that under Section 304-A, IPC will proceed with the case according to law. Application allowed. .;