- (1.) NASEEM uddin, J. This revision has been filed by Ashish Gupta against the order of framing of the charge on 1-6-1998 passed by Shri Gaya Prasad, Sessions Judge, Kheri in S. T. No. 332/98.
(2.) COUNSEL for both the parties were heard in detail. On 3-2-1998 at 8. 15 a. m. an F. I. R. was lodged with the police by Dr. Rochak Tandon with the allegation that on 2-2-1998 at about 11 p. m. while his father Dr. Vipin Tandon had gone to attend the mar riage of the niece of one Satyendra Gupta then some unknown person at about 11. 30 p. m. opened fire on his father at the time of 'dwarghat' at the gate. That the shot hit the head of the father who fell down. That he was brought to the hospital where he succumbed to his injury at 1. 30 a. m. that morning. On the basis of this F. I. R. a case was registered and the Investigating Of ficer recorded the statements of witnesses Anuj Pratap Singh (Annexure No. 3 to the petition of revision), Anoop Kumar Gupta (Annexure No. 4 to the petition of revision), Raj Kamal (Annexure No. 5 to the petition of revision), Ajai Kumar (An nexure No. 6 to the petition of revision), Rajesh Srivastava (Annexure No. 7 to the revision), Rakesh Mohan Gupta (An nexure No. 8 to the petition of revision) and others. All these witnesses gave the same story of the unfortunate incident which took place at the time of the ceremony of 'dwarghat' at Khcri Club at the gate. It was stated by these witnesses that while several persons were standing closely, including the aforementioned per sons and including Dr. Vipin Tandon, for the purposes of welcoming the 'barat' and the 'barat' had arrived at from there about 30-35 paces away from him then Ashish Gupta, revisionist opened a fire in the air by raising his haiid having a 'tamancha', but the fire missed. That Ashish Gupta handed over the pistol to Rinkoo Nigam, who was standing beside him, for opening the fire. That Rinkoo Nigam also raised his hand with the Tamancha' and pulled the trigger of the pistol in the air, but again the fire missed and did not open. That Rinkoo Nigam then took out the cartridge of the pistol and the cartridge was taken over by Ashish Gupta who rubbed it against his pant and handed it back over to Rinkoo. That Rinkoo loaded the cartridge again in the pistol and tried to raise his hand for opening fire in the air, whereupon at the same time Ashish Gupta asked him to handover the pistol to him for the purpose of opening the fire. That Rinkoo Nigam told him that he would open the fire. That during this exchange of words and attempt to take the pistol the fire opened suddenly and hit the head. of Dr. Vipin Tandon in the back, due to which the injured fell down. The two persons ran away. Dr. Tandon was brought to the hospital tor treatment. These facts were considered by the learned Sessions Judge while passing orders for framing the charges. The learned Sessions Judge was influenced by the fact that the pistol (Katta) in question was an illegal weapon and rejected the plea of the revisionist-accused regarding the case being the result of an accident and found that it was a case of murder and framed the charge accordingly. Section 304-A runs as follows: "304-A. Causing death by negligence- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with im prisonment of either description for a term which may extend to two years, or with fine, or with both. " The definition of this section makes it clear that there should not be element of any motive or intention and the rash or negligent act should not amount to culpable homicide. Culpable homicide has been defined under Section 299. I. P. C. , which runs as follows: "299. Culpable homicide-Whoever causes death by doing an act with the intention c if 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. "
(3.) THIS definition makes it clear that for the offence of culpable homicide there should be an intention of causing death, or an intention of causing such bodily injury as is likely to cause death or the knowledge that the act is likely to cause death. In the instant case there is no al legation that the fire was opened with the intention of causing death or causing such bodily injury as was likely to cause death. There is also no ground to hold that inten tion of opening fire in the air would amount to the knowledge that death would be the result.;