- (1.) AGGRIEVED by the order dated 28.11.2010 passed by the Additional Sessions Judge Fast Track, Tonk, whereby the learned Judge has framed charges against the petitioners for offences under Sections 304, 120B IPC and under Section 4/21 of Mines and Minerals (Regulation and Development) Act, 1957/1952 (hereinafter referred to as the "M.M.D.R., Act"), the petitioners have approached this Court.
(2.) THE brief facts of the case are that on 28.08.2010, a FIR, FIR No. 144/2010, was registered at Police Station Dooni, District Tonk for offences under Section 304 IPC, read with Section 4/21 of M.M.D.R. Act against the accused petitioners. After registration of the FIR, the investigation commenced. After investigation and after arresting the accused persons, a charge-sheet was filed before the learned C.J. (J.D.) & J.M. Deoli, District Tonk under Section 304 Part- I, 120 IPC and 4/21 of M.M.D.R. Act. THEreafter , the matter was transferred to learned Additional Sessions Judge, Fast Track, Tonk. Vide order dated 26.11.2010, the learned Judge framed the charges, as aforementioned, against the petitioners. Hence, this petition before this Court. The learned counsel has vehemently contended that it is a case where according to the complainant certain provisions of the M.M.D.R., Act were not followed. Secondly, there is a clear-cut distinction between Sections 304 and 304A IPC. Section 304 IPC deals with punishment for culpable homicide. Section 299 defines the term "culpable homicide". Culpable homicide entails the existence of "intention and knowledge", whereas Section 304A speaks of death by "rashness and negligence". In criminal jurisprudence, there is a wide difference between "intention and knowledge", on the one hand, and "rash and negligence", on the other hand. Although rashness contains an element of knowledge, but in rashness despite having the knowledge of the consequences, the act is still done. At worse, even if knowledge were to be attributed to the petitioners, they may have had the knowledge of the consequences, but they have ignored the consequences. Therefore, the case falls under the category of "rashness". Hence, they would be liable under Section 304A and not under Section 304 IPC. Thirdly, illustration "C" of Section 299 IPC clearly describes when "an act does not amount to culpable homicide". According to the said illustration, if a person intends to do a particular act, while doing that act, unfortunately a death is caused, he cannot be held liable for culpable homicide. In the present case, the intention of the petitioners was not to kill the labourers. Their intention, in fact, was to carry out the mining operation. Unfortunately, while carrying out the mining operation, few labourers lost their lives. Since the intention was to carry out mining operation, and not to cause the death of the labourers, clearly the present case falls under illustration "c" of Section 299 IPC. Therefore, the act allegedly done by the petitioners does "not amount to culpable homicide". Since the act does not amount to culpable homicide, it cannot fall within Section 304 IPC. Thus, it is clearly covered by Section 304A IPC and not by Section 304 IPC. On the other hand, Mr. Javed Chaudhary, the learned Public Prosecutor, has strenuously contended that at the time of framing of the charges, the learned Judge should have framed the more grave charge of Section 304 IPC. If during the course of trial, the learned Judge comes to the conclusion that the charge should be reframed, under Section 216 Cr.P.C. he has the power, to reframe the charge. Moreover, he can always convict the accused persons for lesser offence. Heard the learned counsel for the parties and perused the impugned order. This case raises an interesting legal issue with regard to the distinction between Section 304 IPC and Section 304A IPC.
(3.) SECTION 304 IPC is as under : SECTION 304. Punishment for culpable homicide not amounting to murder - 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 of 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 that 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. Section 304A IPC is as under : Section 304A. 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 imprisonment of either description for a term which may extend to two years, or with fine, or with both. A bare perusal of these two provisions clearly reveals that they deal with the mental state or mens rea of the accused-person. While Section 304 IPC requires the existence of "intention or knowledge", Section 304A IPC requires the existence of "rashness or negligence". Therefore, it is imperative to understand the ambit and extent of the words "intention", "knowledge", "rashness" and "negligence". ;