CRL.REV.P. 564/2023 Page 1 of 50

IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on : 23.12.2025

Judgment pronounced on : 17.04.2026

+ CRL.REV.P. 564/2023 & CRL.M.A. 13482/2023

MASTER M .....Petitioner

versus

STATE OF NCT OF DELHI .....Respondent

Advocates who appeared in this case:

For the Applicant :Mr. Hrishikesh Baruah, Mr. Kumar Kshitij,

Ms. Pragya Agarwal, Mr. Utkarsh Dwivedi,

Ms. Nishtha Sacha & Mr. Yashashwy Ghosh,

Advs.

For the Respondent : Mr. Sunil Kumar Gautam, APP for the

State.

SI Prabash, PS- DIV/ North

Mr. Shri Singh & Ms. Arunima Nair, Advs.

for victim.

CORAM

HON’BLE MR JUSTICE AMIT MAHAJAN

J U D G M E N T

1.The present criminal revision petition has been filed under Section

102 of the Juvenile Justice (Care and Protection of Children) Act,

2015 (‘JJ Act’), assailing the order dated 18.03.2023, passed by the

learned Principal Magistrate, Juvenile Justice Board-III, Delhi,

CRL.REV.P. 564/2023 Page 2 of 50

whereby the Board proceeded to frame notice/charges against the

Petitioner/Master M, a Child in Conflict with Law (‘CCL’), for the

offence punishable under Section 304 Part-II of the Indian Penal

Code, 1960 (‘IPC’), along with offences punishable under Sections 3,

4 read with Section 181 and Sections 134 and 187 under the Motor

Vehicles Act, 1988 (‘MV Act’). The Petitioner/CCL has also

challenged the Notice dated 23.03.2023 issued under Section 251 of

the Code of Criminal Procedure, 1973 (‘CrPC’).

QUINTESSENTIAL FACETS GOVERNING THE PRESENT

ISSUE: -

2.Succinctly stated, the case of the prosecution originates from a

PCR call received via DD No. 28A on 04.04.2016 at about 8:55 PM,

informing the police that a person had been found injured due to an

accident near Shyam Nath Marg, Civil Lines, Delhi. On receipt of the

said information, the officers reached the spot, where a Mercedes Benz

car bearing registration no. DL-2 FCM-3000 C-200 compressor was

found stationed, in an accidental condition, near the red light. Upon

inquiry, it was revealed that the injured person, later identified as

Siddharth Sharma, had already been shifted to Sant Parmanand

Hospital. At that stage, the injured was declared unfit for statement.

No eye-witness was stated to have been found either at the spot or in

the hospital at that time.

3.Consequently, FIR No. 118/2016 dated 04.04.2016 was registered

at Police Station Civil Lines, initially for the offences punishable

under Sections 279 and 337 of the IPC against the Petitioner/CCL.

CRL.REV.P. 564/2023 Page 3 of 50

4.The victim, however, succumbed to his injuries on 05.04.2016 and

thus, DD No. 3A was recorded and section 337 was substituted with

section 304A of the IPC.

5.During the course of investigation, on 05.04.2016, three

eyewitnesses, namely Mr. Girish Kumar, Mr. Pradeep Satia and Mr.

Narender Singh were examined by the IO and in their statements

under section 161 of the CrPC, they stated that at 08.45 PM, offending

Mercedes car bearing No. DL 2F CM 3000, came in a very high speed

and hit the deceased/ Shiddharth Sharma, who was crossing the road

and consequently that person fell on the road after bouncing 15/20 feet

in the Air and sustained injuries. After the accident 6-7 boys, aged

about 15-18 years, de-boarded the car and ran away from the spot.

Thereafter, they shifted the injured to Sant Parmanand Nand Hospital.

6.It is alleged that during the inquiry, the owner of the vehicle was

traced and found to be Mr. Manoj Agarwal i.e. the father of the

Petitioner/CCL herein. Though one Kapil Sharma, the driver

employed with Mr. Manoj Agarwal, initially claimed to be driving the

offending vehicle on the date of the accident, however, during

interrogation, it was revealed that the vehicle was allegedly being

driven by the present Petitioner/CCL, who was 17 years, 11 months

and 26 days old at the time of the incident.

7.It is alleged that on 08.04.2016, since it emerged that the CCL has

a history of traffic violations and his father also did not stop the

Petitioner/CCL from driving the car, Section 109 of the IPC was

added. On the basis of the CCTV footage obtained, which

CRL.REV.P. 564/2023 Page 4 of 50

demonstrated that the offending vehicle was being driven at a very

high speed and in a manner endangering human life, Section 304 of

the IPC was also added.

8. It is alleged that on 04.06.2016, the learned JJB directed that the

present Petitioner/CCL be treated as an adult and after dismissal of the

surrender-cum-bail application filed by the Petitioner/CCL, he was

apprehended and produced before the learned JJB and 2 days custody,

under the supervision of Welfare officer, was granted.

9.During inquiry, six other occupants i.e. the friends of the

Petitioner/CCL namely - Ansh Malhotra, Ayush Malhotra, Sanath

Goel, Shrey Monga, Dhruv Gautam and Ayush Mohan Rastogi, who

were also stated to be present in the offending vehicle at the time of

the incident, were traced. Their statements under Section 161 and 164

of the CrPC were recorded and it is alleged that all the boys have

essentially stated that on 04.04.2016, while they were playing Football

and Cricket at Mall Apartment Ring Road, the Petitioner/CCL asked

them to accompany him to his Apartment in his Mercedes Bens car No

DL 2F CM 3000. Initially, even Dhruv Gautam refused to travel in the

Petitioner’s car, stating that he drives the car rashly and at a high

speed. After convincing, Dhruv Gautam sat on lap of Ansh Malhotra

on front seat, while the Petitioner/CCL was on driving seat and Sanat,

Ayush Malhotra, Ayush Rastogi and Shrey were on rear seat of the

offending car. It is alleged that the Petitioner/CCL started driving the

car in a rash and dangerous manner and they had even warned and

requested him multiple times, but the Petitioner/CCL did not pay any

CRL.REV.P. 564/2023 Page 5 of 50

heed to such requests and advice and he drove the vehicle in a manner

that could result in the death of any person. Even two motorcycle

riders also had a very narrow escape near Khyber Pass, before the

accident.

10.The prosecution has also alleged that Shrey and Ansh Malhotra

have specifically stated that the Petitioner/CCL was driving the car at

the speed of 80-85 Kmph and Dhruv mentioned that the

Petitioner/CCL usually overspeed’s and drives rashly, in a zig zag

manner and hence, he does not like to travel with the Petitioner/CCL

in his car.

11.It is further alleged that during investigation, it emerged that the

Petitioner’s Mercedes had also met with an accident with the vehicle

of one Varun Jain on 16.02.2016 and the Petitioner/CCL managed to

settle the matter vide Compromise settlement dated 16.02.2016. The

statement under Section 161 of the CrPC of Mr. Varun Jain was also

recorded and it is alleged that on that date as well, the Mercedes was

being driven by a boy who did not have a license.

12.It is further alleged that, details of challan were obtained from

Todapur Traffic Office, and it was found that he had been challaned

thrice i.e. on 25.02.2014 under sections RRR 17(1)/177 MV Act; on

19.09.2014 under sections CMVR 138(3)/177 MV Act; and on

17.06.2015 under sections 112.1/183(1) MV Act.

13.It is further alleged that on 18.04.2016, another witness, namely

Amanjit Singh Bhata Aman, was also examined under Section 161 of

the CrPC, who has stated that on 04.04.2016, while he was travelling

CRL.REV.P. 564/2023 Page 6 of 50

on his motorcycle with his friend, they had a narrow escape from the

offending Mercedes car, which was being driven at about 100 kmph

and when they followed the car, they reached the spot of the accident

where the victim was found seriously injured and occupants of the car

managed to escape.

14. It is further alleged that the PCR caller namely, Vijender Nagar

was also examined under sections 161 of the CrPC, who has also

stated that on 04.04.2016, while he was on his motorcycle, he had a

narrow escape from the offending vehicle, which was being driven at

about 100 Kmph and after following the same, he reached the accident

spot, where the victim was lying in an injured condition. The boys in

the car, aged 16-17 years ran away from the spot and he along with

other people who had gathered there, shifted the victim to SPN

Hospital.

15.Hence, the chargesheet was filed on 14.05.2016, under sections

304/201 of the IPC, read with Sections 4/181 and 34/187 of the M.V.

Act, since there was sufficient material to demonstrate that the

Petitioner/CCL had knowledge that his act is likely to cause death and

since he was merely 4 days short from attaining majority, he also

possessed the mental capacity/maturity to understand the

consequences of his actions and is thus, liable to be treated as an adult.

16.In the interim, the appeal filed against Order dated 04.06.2016,

vide which the Petitioner/CCL was directed to be treated as an adult,

was dismissed on 11.02.2019. The same was assailed vide Criminal

Revision Petition bearing No. 351/2019 and this Court vide order

CRL.REV.P. 564/2023 Page 7 of 50

dated 01.05.2019 set-aside the order dated 11.02.2019 by holding that

the offence committed by the Petitioner/CCL does not come in the

category of “heinous offences” and therefore, the present

Petitioner/CCL cannot be tried as an ‘adult’. The Crl. Appeal No. 34

of 2020 challenging the same was dismissed by the Hon’ble Supreme

Court vide Order dated 09.01.2020.

17.Upon filing of the charge-sheet, the matter came up before the

learned JJB, which, heard arguments on the point of framing of notice

and by the impugned order dated 18.03.2023 opined that: -

a)Notice for commission of offence under Section

304 Part-II of the IPC is to be framed against the

Petitioner/CCL as it can be said, without any

conclusive findings, that he had knowledge that his act

of driving the car dangerously at a high speed can

likely cause death though he had no intention to cause

death.

b)Since the Petitioner/ CCL was driving without a

valid driving license on the date of the incident and

thus, Notice under sections 3/181 and 4/181 of the MV

Act is also framed;

c) Since it has been alleged that the Petitioner/CCL

ran away from the place of the incident and abandoned

the victim, Notice under section 134/187 MV Act is

also framed.

CRL.REV.P. 564/2023 Page 8 of 50

18.Hence, the impugned Notice under section 251 of the CrPC dated

23.03.2023 was served upon the Petitioner/CCL, to which he pleaded

not guilty and claimed inquiry. The relevant extract is reproduced as

under: -

“That this Board has received a complaint that on

04.04.2016 at around 08:45PM, at Shyam Nath

Marg, Civil lines while going from Mall Apartment,

Civil Lines to Oberoi Apartment, Civil Lines, Delhi,

within the jurisdiction of PS Civil Lines, you juvenile

were found driving a car bearing regn. no. DL-

2FCM- 3000 without a valid driving license at a very

high speed of about 80-85 kms. per hour, so as to

endanger public safety and human life of others and

while driving in such manner you struck the victim

(since deceased) Sh. Siddharth Sharma and caused

his death, having knowledge that your driving at a

high speed at that time and place is likely to cause

death and after that the said incident you ran away

from the spot of the incident, thus, you have

committed the offences punishable under 304 Part II

IPC & 3/181, 4/181 and 134/187 of M.V. Act and

within cognizance of this Board.”

SUBMISSIONS ON BEHALF OF THE PETITIONER: -

19.Learned counsel appearing on behalf of the Petitioner/CCL

submits that the impugned orders suffer from a fundamental error of

law, inasmuch as the material placed on record, even if taken at its

highest, does not disclose the essential ingredients of culpable

homicidenot amounting to murder, specifically “knowledge that it is

likely to cause death”, so as to attract Section 304 Part-II of the IPC.

Reliance is placed upon Mahadev Prasad Kaushik Vs. State of UP,

2008 (14) SCC 479, Abdul Kalam Musalman and Ors. Vs. State of

CRL.REV.P. 564/2023 Page 9 of 50

Rajasthan, 2011 Cri. LJ 2507 andYuvraj Laxmilal Kanther and

Anr. Vs. State of Maharashtra, 2025 SCC Online SC 520.

20.It is submitted that the manner of accident does not reflect

attribution of any knowledge to the Petitioner that death was likely to

be caused in all probability. On the contrary, the witnesses

consistently state that the offending vehicle was travelling at the speed

approximately 60-70 kmph and when the Petitioner/CCL reached the

traffic light and realized that there are only 5-6 Seconds for the light to

turn ‘Red’ from ‘Green’, then only the speed of the offending vehicle

was increased to around 80 kmph. It is further submitted that there

was no ‘Zebra Crossing’ where the victim was allegedly hit and even

the light was ‘Green’. It has also come on record that the road was

‘fairly empty’ and there was no traffic at all in the said place.

21.It is further submitted that the Petitioner/CCL had tried to save the

deceased but it is the victim who suddenly got confused and changed

his direction, which led to the accident, which could have been

otherwise avoided. Reliance is placed upon the photographs and the

CCTV footage of the accident.

22.It is further contended that it is no more res integra that mere

speed, even if assumed to be on the higher side, cannot by itself be

equated with the knowledge contemplated under Section 299 of the

IPC and Rashness or recklessness alleged on the basis of high speed

remains within the domain of Section 304A of the IPC. To buttress the

same, reliance is paced upon, Prabhakaran Vs State of Kerala 2007

CRL.REV.P. 564/2023 Page 10 of 50

(14) SCC 269, State of Karnataka Vs. Satish 1998 (8) SCC493 and

Abdul Subhan Vs. State 133 (2006) DLT 562.

23.It is further submitted that even the reliance placed by the

prosecution on the judgments of Alister Anthony Pareira Vs. State of

Maharashtra, 2012 (2) SCC 648 and State Vs. Sanjeev Nanda, 2012

(8) SCC 450 is misplaced, as they pertain to situations where the

accused persons/drivers were driving under the influence of liquor and

had run over multiple victims.

24.It is further submitted if the argument of the complainant is

accepted that merely because the accused was a minor and thus, it

implies that he had knowledge that the act is likely to cause death, the

offence of driving by a minor which had resulted in the death of a

person, would necessarily involve framing of a much graver charge

under Section 304 Part-II of the IPC and there can be no case for the

offence to fall under Section 304A of the IPC, which would essentially

mean rewriting the law by striking-off Section 304A from the Statue

Book for the case of a minor.

25.It is further submitted that even otherwise, the Petitioner/CCL was

merely 4 days short of attaining the age of majority, had attained the

discretion to drive a car effectively and cannot be stated to be

“immature”. Even Section 4 of the MV Act, permits a license to a 16-

year-old for riding a 50cc motorcycle. The prosecution has rather

taken a contradictory stand, that on one hand it is pleaded that the

Petitioner/CCL had attained sufficient maturity to understand the

consequences and gravity of his act and should be tried as an adult, but

CRL.REV.P. 564/2023 Page 11 of 50

on the other hand claims that since he was a minor, he did not possess

the “maturity” to drive a car effectively.

26.It is further submitted that even section 134/187 of the MV Act is

not made out as, after the incident, as stated by Shrey Monga, the

Petitioner/CCL had put the deceased in an auto so that he can be

transported to the hospital and the medical expenses were also

deposited by the Petitioner’s father.

CONTENTIONS ON BEHALF OF THE STATE AND

COMPLAINANT: -

27.Per contra, the learned Additional Public Prosecutor appearing on

behalf of the State and the Counsel for the Complainant, submit that

the impugned orders and the Notice under section 251 of the CrPC, do

not warrant any interference, as the learned JJB has correctly

appreciated the material on record.

28.A preliminary objection with respect to maintainability of the

petition has been pressed. It is contended that the proceedings that led

to the framing of Notice were admittedly based on the procedure

prescribed for trial of summons cases by Magistrates under Chapter

XX of the CrPC and it is well-settled that no detailed arguments could

be led at the stage of notice, which was considered to be a formal

process and there is no scope for an order akin to discharge at the

stage when notice was framed against the accused under Section 251

of the CrPC. Reliance is placed upon Subramanium Sethuraman v.

State of Maharashtra and Anr., (2004) 13 SCC 324.

CRL.REV.P. 564/2023 Page 12 of 50

29.It further submitted that the element of “knowledge” that the act is

likely to cause death for attracting the offence of 304 Part II, is

discernible from the entirety of the circumstances and the manner of

the accident. Firstly, the Petitioner/CCL was driving the offending car

at a speed of approximately 100 kmph whereas the permissible limit

was 50 Kmph and did not heed to the warnings/requests of his

friends/co-occupants. Secondly, he was a minor and was driving

without a valid licence and there is a presumption that he did know

how to drive a vehicle. Thirdly, there are no skid marks and he not

apply breaks or make any efforts to avoid the accident. Lastly, he has

previous challans, is a repeat offender, has been previously involved in

an accident and he was about to run over other motorcyclists as well.

30.It is further submitted that, as per Ghulam Hassan Beigh v.

Mohammad Maqbool Magrey and Ors., (2022) 12 SCC 657, in such

circumstances where the case can ultimately be proved after the entire

evidence is led, the learned JJB has rightly proceeded under section

304 part II, which is a higher offence, since it would be open for the

accused to persuade the Board at the end of the trial that the case falls

within the ambit of lesser offence and avoid the re-commencing of the

trial afresh if it is found later that the higher offence of 304 part II was

made out.

31.It is further submitted that, without prejudice, even otherwise,

whether the offence falls under Section 304 Part-II or Section 304A of

the IPC is a matter to be decided after evidence is led by the parties

and cannot be decided at this stage.

CRL.REV.P. 564/2023 Page 13 of 50

32.It is further submitted that the post-incident conduct, as stated by

the eye-witness demonstrates that the victim was abandoned by the

Petitioner/CCL, who neither called the PCR, nor helped the injured

and thus, notice under section 134 of the MV Act has been rightly

framed. Hence, it is prayed that the revision petition be dismissed.

33.Submissions heard and the record along with the written

submissions as well as the judgments have been perused.

ANALYSIS AND FINDINGS: -

34.The present petition has been preferred under Section 102 of the JJ

Act, which confers revisional jurisdiction only upon High Court and

empowers the High Court to call for records of any proceeding before

a Board, Children’s Court, or Committee to examine the legality or

propriety of any order, acting on its own motion or via application.

The revisional power is supervisory in nature and does not permit

substitution of the Court’s view merely because another view is

possible.

35.The scope of interference by High Courts while exercising

revisional jurisdiction in a challenge to order framing charge/notice of

accusation is well circumscribed. The power ought to be exercised

sparingly, in the interest of justice and it is not open to the Court to

misconstrue the revisional proceedings as an appeal and reappreciate

the evidence unless any glaring perversity is brought to its notice.

36.In the present case, the impugned order and Notice arise at the

stage of Section 251 of the CrPC and it is well settled that at the stage

of Section 251 of the CrPC, the Court is required to state the substance

CRL.REV.P. 564/2023 Page 14 of 50

of accusation to the accused upon being satisfied that the allegations in

the police report, if taken at face value, disclose the commission of an

offence. The provision does not contemplate a detailed evaluation of

evidence, nor does it require the Court to determine the likelihood of

conviction. The test is confined to whether the ingredients of the

alleged offence are prima facie disclosed on the basis of the material

placed by the prosecution.

37.Though the present case arises at the stage of Section 251 CrPC

(summons case) the principles governing framing of charge can be

relied upon to understand the contours of a “prima facie case”, albeit

with greater circumspection, since Section 251 does not contemplate

discharge in the manner provided for in warrant cases. The Hon’ble

Apex Court in Union of India v. Prafulla Kumar Samal : (1979) 3

SCC 4, dealt with the scope of enquiry a judge isrequired to make

with regard to the question of framing of charges.Inter alia, the

following principles were laid down by the Court:

“10. Thus, on a consideration of the authorities

mentioned above, the following principles emerge:

(1) That the Judge while considering the question of

framing the charges under Section 227 of the Code

has the undoubted power to sift and weigh the

evidence for the limited purpose of finding out

whether or not a prima facie case against the

accused has been made out.

xxx xxx xxx

(3) The test to determine a prima facie case would

naturally depend upon the facts of each case and it

is difficult to lay down a rule of universal

application. By and large however if two views are

equally possible and the Judge is satisfied that the

evidence produced before him while giving rise to

some suspicion but not grave suspicion against the

CRL.REV.P. 564/2023 Page 15 of 50

accused, he will be fully within his right to discharge

the accused.”

(emphasis supplied)

38. The Hon’ble Apex Court, in the case of Sajjan Kumar v. CBI :

(2010) 9 SCC 368, has culled out the following principles in respect

of the scope of Sections 227 and 228 of the CrPC while observing that

a primafacie case would depend on the facts and circumstances of

each case. The relevant paragraphs read as under:

“21. On consideration of the authorities about the

scope of Sections 227 and 228 of the Code, the

following principles emerge:

(i) The Judge while considering the question of

framing the charges under Section 227 CrPC has the

undoubted power to sift and weigh the evidence for

the limited purpose of finding out whether or not a

prima facie case against the accused has been made

out. The test to determine prima facie case would

depend upon the facts of each case.

(ii) Where the materials placed before the court

disclose grave suspicion against the accused which

has not been properly explained, the court will be

fully justified in framing a charge and proceeding

with the trial.

(iii) The court cannot act merely as a post office or a

mouthpiece of the prosecution but has to consider

the broad probabilities of the case, the total effect of

the evidence and the documents produced before the

court, any basic infirmities, etc. However, at this

stage, there cannot be a roving enquiry into the pros

and cons of the matter and weigh the evidence as if

he was conducting a trial.

(iv) If on the basis of the material on record, the

court could form an opinion that the accused might

have committed offence, it can frame the charge,

though for conviction the conclusion is required to

be proved beyond reasonable doubt that the accused

has committed the offence.

(v) At the time of framing of the charges, the

probative value of the material on record cannot be

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gone into but before framing a charge the court

must apply its judicial mind on the material placed

on record and must be satisfied that the

commission of

offence by the accused was possible.

(vi) At the stage of Sections 227 and 228, the court

is required to evaluate the material and documents

on record with a view to find out if the facts

emerging therefrom taken at their face value

disclose the existence of all the ingredients

constituting the alleged offence. For this limited

purpose, sift the evidence as it cannot be expected

even at that initial stage to accept all that the

prosecution states as gospel truth even if it is

opposed to common sense or the broad

probabilities of the case.

(vii) If two views are possible and one of them gives

rise to suspicion only, as distinguished from grave

suspicion, the trial Judge will be empowered to

discharge the accused and at this stage, he is not to

see whether the trial will end in conviction or

acquittal.”

(emphasis supplied)

39. In State of Gujarat v. Dilipsinh Kishorsinh Rao : (2023) 17 SCC

688, the Hon’ble Apex Court has discussed the parameters thatwould

be appropriate to keep in mind at the stage of framing ofcharge, as

under:

“7. It is trite law that application of judicial mind

being necessary to determine whether a case has been

made out by the prosecution for proceeding with trial

and it would not be necessary to dwell into the pros

and cons of the matter by examining the defence of the

accused when an application for discharge is filed. At

that stage, the trial judge has to merely examine the

evidence placed by the prosecution in order to

determine whether or not the grounds are sufficient to

proceed against the accused on basis of charge sheet

material. The nature of the evidence recorded or

collected by the investigating agency or the

CRL.REV.P. 564/2023 Page 17 of 50

documents produced in which prima facie it reveals

that there are suspicious circumstances against the

accused, so as to frame a charge would suffice and

such material would be taken into account for the

purposes of framing the charge. If there is no

sufficient ground for proceeding against the accused

necessarily, the accused would be discharged, but if

the court is of the opinion, after such consideration of

the material there are grounds for presuming that

accused has committed the offence which is triable,

then necessarily charge has to be framed.

xxx xxx xxx

12. The primary consideration at the stage of

framing of charge is the test of existence of a prima-

facie case, and at this stage, the probative value of

materials on record need not be gone into. This

Court by referring to its earlier decisions in the State

of Maharashtra v. Som Nath Thapa, (1996) 4 SCC

659 and the State of MP v. Mohan Lal Soni, (2000) 6

SCC 338 has held the nature of evaluation to be made

by the court at the stage of framing of the charge is to

test the existence of prima-facie case. It is also held at

the stage of framing of charge, the court has to form a

presumptive opinion to the existence of factual

ingredients constituting the offence alleged and it is

not expected to go deep into probative value of the

material on record and to check whether the material

on record would certainly lead to conviction at the

conclusion of trial.”

(emphasis supplied)

40.Hence, the foundational threshold, at this stage, is that the Court is

only required to examine whether the material placed on record, if

taken at face value, discloses a prima facie case regarding the

commission of the offence alleged and the Court is not expected to

conduct a mini trial for the purposing of weighing the evidence.

41.Since the principal submission of the Petitioner is that, even

accepting the prosecution case in its entirety, the essential ingredient

CRL.REV.P. 564/2023 Page 18 of 50

of “knowledge” as contemplated under Section 299 of the IPC is not

made out, it would be apposite to understand the relevant legal

provisions of the IPC, which are reproduced 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 of

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

knowledgethat 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 : Causing death by negligence.—

Whoever causes the death of any person by

doing any rash or negligence 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.

Section 299 : Culpable homicide.—Whoever

causes death by doing an act with the intention

of causing death, or with the intention of causing

such bodily injury as is likely to cause death, or

with the knowledgethat he is likely by such act

to cause death, commits the offence of culpable

homicide.”

42.A bare perusal of the above sections reflects that the distinction

between Section 304 Part II and Section 304A IPC lies in the mental

element accompanying the act. While Section 304A contemplates

death caused by rash or negligent conduct, Section 304 Part II is

CRL.REV.P. 564/2023 Page 19 of 50

attracted where the act is done with the knowledge that it is likely to

cause death, though without any intention to cause death.

“Knowledge” in this context denotes an awareness of the likelihood of

fatal consequences arising from the act committed. Such knowledge is

ordinarily inferred from the nature of the act, the surrounding

circumstances, and the degree of risk inherent in the conduct.

43.The Hon’ble Apex Court, in Mahadev Prasad Kaushik (supra),

while highlighting the distinction between Section 299, 304 A and 304

of the IPC, opined as under: -

“ 20. The question then is as regards issuance of

summons under Section 304 IPC. Section 304 reads

thus:

“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.”

A plain reading of the above section makes it clear that

it is in two parts. The first part of the section is

generally referred to as Section 304 Part I, whereas

the second part as Section 304 Part II. The first part

applies where the accused causes bodily injury to the

victim with intention to cause death; or

with intention to cause such bodily injury as is likely to

cause death. Part II, on the other hand, comes into play

when death is caused by doing an act

with knowledge that it is likely to cause death, but

CRL.REV.P. 564/2023 Page 20 of 50

without any intention to cause death or to cause such

bodily injury as is likely to cause death.

21. The makers of the Code observed:

“The most important consideration upon a trial

for this offence is the intention or knowledge with

which the act which caused death, was done. The

intention to cause death or the knowledgethat

death will probably be caused, is essential and is

that to which the law principally looks. And it is of

the utmost importance that those who may be

entrusted with judicial powers should clearly

understand that no conviction ought to take place,

unless such intention or knowledge can from the

evidence be concluded to have really existed.”

The makers further stated:

“It may be asked how can the existence of the

requisite intention or knowledge be proved, seeing

that these are internal and invisible acts of the

mind? They can be ascertained only from external

and visible acts. Observation and experience

enable us to judge of the connection between men's

conduct and their intentions. We know that a sane

man does not usually commit certain acts

heedlessly or unintentionally and generally we

have no difficulty in inferring from his conduct

what was his real intention upon any given

occasion.”

22. Before Section 304 can be invoked, the following

ingredients must be satisfied:

(i) the death of the person must have been

caused;

(ii) such death must have been caused by the

act of the accused by causing bodily injury;

(iii) there must be an intention on the part of

the accused:

(a) to cause death; or

(b) to cause such bodily injury which is likely

to cause death (Part I);

(iv) there must be knowledge on the part of

the accused that the bodily injury is such that

it is likely to cause death (Part II).

23.Section 304-A was inserted by the Penal Code

(Amendment) Act, 1870 (Act 27 of 1870) and reads

thus:

CRL.REV.P. 564/2023 Page 21 of 50

“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 imprisonment of

either description for a term which may extend to

two years, or with fine, or with both.”

The section deals with homicidal death by rash or

negligent act. It does not create a new offence. It is

directed against the offences outside the range of

Sections 299 and 300 IPC and covers those cases

where death has been caused

without intention or knowledge. The words “not

amounting to culpable homicide” in the provision are

significant and clearly convey that the section seeks to

embrace those cases where there is neither intention

to cause death, nor knowledge that the act done will in

all probability result into death. It applies to acts

which are rash or negligent and are directly the cause

of death of another person.

24.There is thus distinction between Section 304 and

Section 304-A. Section 304-A carves out cases where

death is caused by doing a rash or negligent act which

does not amount to culpable homicide not amounting

to murder within the meaning of Section 299 or

culpable homicide amounting to murder under

Section 300 IPC. In other words, Section 304-A

excludes all the ingredients of Section 299 as also of

Section 300. Where intention or knowledge is the

“motivating force” of the act complained of, Section

304-A will have to make room for the graver and

more serious charge of culpable homicide not

amounting to murder or amounting to murder as the

facts disclose. The section has application to those

cases where there is neither intention to cause death

nor knowledge that the act in all probability will cause

death.

25. In Empress of India v. Idu Beg [ILR (1881) 3 All

776] Straight, J. made the following pertinent

observations which have been quoted with approval by

various courts including this Court: (ILR p. 780)

“… criminal rashness is hazarding a dangerous

or wanton actwith the knowledge that it is so, and

that it may cause injury, but without intention to

cause injury, or knowledge that it will probably be

CRL.REV.P. 564/2023 Page 22 of 50

caused.The criminality lies in running the risk of

doing such an act with recklessness or

indifference as to the consequences. Criminal

negligence is the gross and culpable neglect or

failure to exercise that reasonable and proper

care and precaution to guard against injury

either to the public generally or to an individual

in particular, which, having regard to all the

circumstances out of which the charge has

arisen, it was the imperative duty of the accused

person to have adopted.”

26. Though the term “negligence” has not been defined

in the Code, it may be stated that negligence is the

omission to do something which a reasonable man,

guided upon those considerations which ordinarily

regulate the conduct of human affairs would do, or

doing something which a reasonable and prudent

man would not do.

27. The learned counsel for the appellant-accused

submitted that by no stretch of imagination, can it be

said that the appellant while administering injections to

deceased Buddha Ram is said to have committed an

offence punishable under Section 304 IPC. It can never

be said that the death of Buddha Ram had been

caused by the appellant by doing the act of giving

injections with intention to cause his death or to cause

such bodily injury as is likely to cause death.

Likewise, it is impossible to think that the purported

act has been done by the appellant-accusedwith

the knowledge that in all probability, it would result

into the death of Buddha Ram.”

(Emphasis supplied)

44.Hence, the above judgment, crystalized the conceptual distinction

between the mental elements of intention, knowledge, rashness and

negligence in the context of Sections 299, 304 and 304A of the IPC.

While intention and knowledge constitute the mental elements for

culpable homicide, and rashness constitutes the mental element for

304 A. It is important to note that the concept of “knowledge” appears

CRL.REV.P. 564/2023 Page 23 of 50

both in the concept of criminal rashness under Section 304A as well

as in Section 304 Part II of the IPC, however, the degree and nature of

such knowledge is fundamentally different. In cases of criminal

rashness, the accused is aware that his act is dangerous and may cause

fatal injury i.e. knowledge that consequence may follow, yet he

proceeds with recklessness or indifference to consequences. However,

for attracting Section 304 Part II, the knowledge required is of a higher

degree, namely the awareness that the act is likely to cause death in

all probability. Thus, while rashness involves knowledge of risk of

fatal injury coupled with reckless disregard, Section 304 Part II

requires conscious awareness of the likelihood of death as a probable

consequence of the act. The distinction therefore lies not merely in the

presence of knowledge, but in the degree of probability of death

contemplated by the accused. Hence only when, intention or

knowledge is the motivating force, the offence would fall within the

ambit of Section 304 Part II.

45.Similar view has been echoed by the Hon’ble Apex Court in the

case of Prabhakaran (supra). The case centres around a motor vehicle

accident caused by the accused bus driver, who ran his bus over a 10-

year-old boy. Initially, considering that the bus driver had ignored the

warnings of the pedestrians and the passengers cautioning him to not

drive the bus recklessly (thereby implying that he had knowledge that

death is likely to be caused), he was convicted under Section 304 Part

II by the learned Trial Court as well as the High Court. However,

while allowing the appeal of the accused and convicting him under the

CRL.REV.P. 564/2023 Page 24 of 50

Section 304 A of the IPC, the Hon’ble Apex Court not only delineated

the boundary between Sections 304 Part II and 304 A but also

explicated the distinction between criminal rashness and criminal

negligence within the framework of Section 304A. On a detailed

evaluation of the evidence on record, it was held that there was no

evidence to suggest that the accused had the knowledge that his act

was likely to cause death, thereby excluding the application of Section

304 Part II. It was re-iterated that criminal rashness connotes an act

done with the consciousness of a risk that evil consequences may

follow, yet with the hope that they will not, whereas criminal

negligence implies a breach of duty to take care, marked by a failure

to exercise reasonable and proper caution expected in the

circumstances. Both concepts fall within the ambit of Section 304A

when death is caused without intention or knowledge. The relevant

extract is reproduced as under: -

“5.Section 304-A speaks of causing death by

negligence.This section applies to rash and negligent

acts and does not apply to cases where death has been

voluntarily caused.This section obviously does not

apply to cases where there is an intention to cause

death or knowledge that the act will in all probability

cause death. It only applies to cases in which without

any such intention or knowledge death is caused by

what is described as a rash and negligent act.

6.A negligent act is an act done without doing

something which a reasonable man guided upon those

considerations which ordinarily regulate the conduct

of human affairs would do or act which a prudent or

reasonable man would not do in the circumstances

attending it. A rash act is a negligent act done

precipitately.Negligence is the genus, of which

rashness is the species. It has sometimes been

CRL.REV.P. 564/2023 Page 25 of 50

observed that in rashness the action is done

precipitately that the mischievous or illegal

consequences may fall, but with a hope that they will

not. Lord Atkin in Andrews v. Director of Public

Prosecutions [1937 AC 576 : (1937) 2 All ER 552] AC

at p. 583 observed as under : (All ER p. 556 C-E)

“Simple lack of care such as will constitute civil

liability is not enough. For purposes of the

criminal law there are degrees of negligence, and a

very high degree of negligence is required to be

proved before the felony is established. Probably of

all the epithets that can be applied ‘reckless’ most

nearly covers the case. It is difficult to visualise a

case of death caused by ‘reckless’ driving, in the

connotation of that term in ordinary speech,

which would not justify a conviction for

manslaughter, but it is probably not all-

embracing, for ‘reckless’ suggests an indifference

to risk, whereas the accused may have

appreciated the risk, and intended to avoid it, and

yet shown in the means adopted to avoid the risk

such a high degree of negligence as would justify

a conviction.”

7. “7. Section 304-A applies to cases where there is no

intention to cause death and no knowledge that the act

done in all probability will cause death.The provision

is directed at offences outside the range of Sections

299 and 300 IPC. The provision applies only to such

acts which are rash and negligent and are directly

cause of death of another person. Negligence and

rashness are essential elements under Section 304-A.

Culpable negligence lies in the failure to exercise

reasonable and proper care and the extent of its

reasonableness will always depend upon the

circumstances of each case. Rashness means doing an

act with the consciousness of a risk that evil

consequences will follow but with the hope that it will

not. Negligence is a breach of duty imposed by law. In

criminal cases, the amount and degree of negligence

are determining factors. A question whether the

accused's conduct amounted to culpable rashness or

negligence depends directly on the question as to what

is the amount of care and circumspection which a

prudent and reasonable man would consider it to be

sufficient considering all the circumstances of the case.

CRL.REV.P. 564/2023 Page 26 of 50

Criminal rashness means hazarding a dangerous or

wanton act with the knowledge that it is dangerous or

wanton and the further knowledge that it may cause

injury but done without any intention to cause injury or

knowledge that it would probably be caused.

8. As noted above, ‘rashness’ consists in hazarding a

dangerous or wanton act with the knowledge that it is

so, and that it may cause injury.The criminality lies

in such a case in running the risk of doing such an

act with recklessness or indifference as to the

consequences. Criminal negligence on the other hand,

is the gross and culpable neglect or failure to exercise

that reasonable and proper care and precaution to

guard against injury either to the public generally or to

an individual in particular, which, having regard to all

the circumstances out of which the charge has arisen it

was the imperative duty of the accused person to have

adopted.

9. The distinction has been very aptly pointed out by

Holloway, J. in these words:

‘Culpable rashness is acting with the

consciousness that the mischievous and illegal

consequences may follow, but with the hope that

they will not,and often with the belief that the

actor has taken sufficient precautions to prevent

their happening. The imputability arises from

acting despite the consciousness (luxuria).

Culpable negligence is acting without the

consciousness that the illegal and mischievous

effect will follow, but in circumstances which show

that the actor has not exercised the caution

incumbent upon him, and that if he had he would

have had the consciousness. The imputability

arises from the neglect of the civic duty of

circumspection.’ (See Nidamarti Nagabhushanam,

In re [7 Mad HCR 119] , Mad HCR pp. 119-20.)

Xxx xxx xxx

8.When the factual scenario of the present case is

analysed, it is crystal clear that the appropriate

conviction would be under Section 304-A IPC and not

Section 304 Part II IPC. Conviction is accordingly

altered. The maximum sentence which can be imposed

for offence punishable under Section 304-A is two years

with fine or with both. The custodial sentence,

therefore, is reduced to the maximum i.e. two years.”

CRL.REV.P. 564/2023 Page 27 of 50

(emphasis supplied)

46.Crucially, it was underscored that even a high degree of rashness

or negligence does not elevate the offence to Section 304 Part II unless

it is accompanied by the requisite knowledge of the likelihood of

death, which remains the decisive distinguishing element.

Accordingly, in the absence of such knowledge, the conviction was

altered from Section 304 Part II to Section 304A IPC.

47.Similar observations have been made in the judgment passed by a

co-ordinate Bench of the High Court of Rajasthan, in the judgment of

Abul Kalam Musalman (supra), and the judgment passed by the

Hon’ble Apex Court in the case of Yuvraj Laxmilal Kanther (supra).

48.Hence, the general trend was that most road accidents resulting in

death were prosecuted under Section 304A of the IPC unless there was

a clear “intention” to cause death or “knowledge” of death as a

consequence, decipherable from the evidence.

49.However, the Hon’ble Apex Court, in Alister Anthony Pareira

(supra), in the context of drunken driving, opined that some motor

vehicle cases are not mere rashness and negligence but culpable

homicide (304 Part II), when the evidence demonstrates that driver

knows that his act is so dangerous that it is likely to cause death. In

the facts of that case, the car driven by the accused, in a drunken state,

ran over laborers sleeping on the pavement, killing seven persons and

causing injuries to about eight persons. The learned Trial Court

initially convicted the accused under Section 304 A and 337 of the

IPC, while the High Court altered the conviction under section 304 A

CRL.REV.P. 564/2023 Page 28 of 50

to Section 304 Part II. While dismissing the appeal of the accused and

upholding the view adopted by the High Court, it was held as under: -

“ 38.Insofar as Section 304-A IPC is concerned, it

deals with death caused by doing any rash or

negligent act where such death is caused neither

intentionally nor with the knowledge that the act of

the offender is likely to cause death. The applicability

of Section 304-A IPC is limited to rash or negligent

acts which cause death but fall short of culpable

homicide amounting to murder or culpable homicide

not amounting to murder. An essential element to

attract Section 304-A IPC is death caused due to rash

or negligent act. The three things which are required to

be proved for an offence under Section 304-A are:

(1) death of human being;

(2) the accused caused the death; and

(3) the death was caused by the doing of a rash or

negligent act, though it did not amount to culpable

homicide of either description.

39. Like Section 304-A, Sections 279, 336, 337 and 338

IPC are attracted for only the negligent or rash act.

The scheme of Sections 279, 304-A, 336, 337 and 338

leaves no manner of doubt that these offences are

punished because of the inherent danger of the acts

specified therein irrespective of knowledge or

intention to produce the result and irrespective of the

result.These sections make punishable the acts

themselves which are likely to cause death or injury to

human life.

40. The question is whether indictment of an accused

under Section 304 Part II and Section 338 IPC can

coexist in a case of single rash or negligent act. We

think it can. We do not think that the two charges are

mutually destructive. If the act is done with the

knowledge of the dangerous consequences which are

likely to follow and if death is caused, then not only

that the punishment is for the act but also for the

resulting homicide and a case may fall within Section

299 or Section 300 depending upon the mental state of

the accused viz. as to whether the act was done with

one kind of knowledge or the other or the intention.

CRL.REV.P. 564/2023 Page 29 of 50

Knowledge is awareness on the part of the person

concerned of the consequences of his act of omission

or commission indicating his state of mind. There may

be knowledge of likely consequences without any

intention. Criminal culpability is determined by

referring to what a person with reasonable prudence

would have known.

41. Rash or negligent driving on a public road with

the knowledge of the dangerous character and the

likely effect of the act and resulting in death may fall

in the category of culpable homicide not amounting to

murder. A person, doing an act of rash or negligent

driving, if aware of a risk that a particular

consequence is likely to result and that result occurs,

may be held guilty not only of the act but also of the

result. As a matter of law—in view of the provisions of

IPC—the cases which fall within the last clause of

Section 299 but not within clause “Fourthly” of Section

300 may cover the cases of rash or negligent act done

with the knowledge of the likelihood of its dangerous

consequences and may entail punishment under Section

304 Part II IPC. Section 304-A IPC takes out of its

ambit the cases of death of any person by doing any

rash or negligent act amounting to culpable homicide

of either description.

42. A person, responsible for a reckless or rash or

negligent act that causes death which he had

knowledge as a reasonable man that such act was

dangerous enough to lead to some untoward thing

and the death was likely to be caused, may be

attributed with the knowledge of the consequence and

may be fastened with culpability of homicide not

amounting to murder and punishable under Section

304 Part II IPC. There is no incongruity, if

simultaneously with the offence under Section 304

Part II, a person who has done an act so rashly or

negligently endangering human life or the personal

safety of the others and causes grievous hurt to any

person is tried for the offence under Section 338 IPC.

43. In view of the above, in our opinion there is no

impediment in law for an offender being charged for

the offence under Section 304 Part II IPC and also

under Sections 337 and 338 IPC. The two charges

CRL.REV.P. 564/2023 Page 30 of 50

under Section 304 Part II IPC and Section 338 IPC can

legally coexist in a case of single rash or negligent act

where a rash or negligent act is done with the

knowledge of likelihood of its dangerous consequences.

44. By charging the appellant for the offence under

Section 304 Part II IPC and Section 338 IPC—which is

legally permissible—no prejudice has been caused to

him. The appellant was made fully aware of the

charges against him and there is no failure of justice.

We are, therefore, unable to accept the submission of

Mr U.U. Lalit that by charging the appellant for the

offences under Section 304 Part II IPC and Section 338

IPC for a rash or negligent act resulting in injuries to

eight persons and at the same time committed with the

knowledge resulting in death of seven persons, the

appellant has been asked to face a legally

impermissible course.

45. In Prabhakaran v. State of Kerala [(2007) 14 SCC

269 : (2009) 1 SCC (Cri) 873] this Court was

concerned with the appeal filed by a convict who was

found guilty of the offence punishable under Section

304 Part II IPC. In that case, the bus driven by the

convict ran over a boy aged 10 years. The prosecution

case was that the bus was being driven by the appellant

therein at enormous speed and although the passengers

had cautioned the driver to stop as they had seen

children crossing the road in a queue, the driver ran

over the student on his head. It was alleged that the

driver had real intention to cause death of persons to

whom harm may be caused on the bus hitting them. He

was charged with offence punishable under Section 302

IPC. The trial court found that no intention had been

proved in the case but at the same time the accused

acted with the knowledge that it was likely to cause

death, and, therefore, convicted the accused of culpable

homicide not amounting to murder punishable under

Section 304 Part II IPC and sentenced him to undergo

rigorous imprisonment for five years and pay a fine of

Rs 15,000 with a default sentence of imprisonment for

three years. The High Court dismissed the appeal and

the matter reached this Court.

46. While observing that Section 304-A speaks of

causing death by negligence and applies to rash and

CRL.REV.P. 564/2023 Page 31 of 50

negligent acts and does not apply to cases where there

is an intention to cause death or knowledge that the act

will in all probability cause death and that Section 304-

A only applies to cases in which without any such

intention or knowledge death is caused by a rash and

negligent act, on the factual scenario of the case, it was

held in Prabhakaran case [(2007) 14 SCC 269 : (2009)

1 SCC (Cri) 873] that the appropriate conviction would

be under Section 304-A IPC and not Section 304 Part II

IPC. Prabhakaran [(2007) 14 SCC 269 : (2009) 1 SCC

(Cri) 873] does not say in absolute terms that in no

case of an automobile accident that results in death of

a person due to rash and negligent act of the driver,

the conviction can be maintained for the offence

under Section 304 Part II IPC even if such act (rash

or negligent) was done with the knowledge that by

such act of his, death was likely to be

caused. Prabhakaran [(2007) 14 SCC 269 : (2009) 1

SCC (Cri) 873] turned on its own facts.

47. Each case obviously has to be decided on its own

facts. In a case where negligence or rashness is the

cause of death and nothing more, Section 304-A may be

attracted but where the rash or negligent act is

preceded with the knowledge that such act is likely to

cause death, Section 304 Part II IPC may be attracted

and if such a rash and negligent act is preceded by

real intention on the part of the wrongdoer to cause

death, offence may be punishable under Section 302

IPC.

Xxx xxx xxx

Re : Question (iii)

67. The crucial question now remains to be seen is

whether the prosecution evidence establishes beyond

reasonable doubt the commission of offences under

Section 304 Part II IPC, Section 338 IPC and Section

337 IPC against the appellant.

Xxx xxx xxx

74.The above evidence has been considered by the

High Court quite extensively. The High Court, on

consideration of the entire prosecution evidence and

having regard to the deficiencies pointed out by the

defence, reached the conclusion that (1) the accused

at the time of driving the car was under the influence

CRL.REV.P. 564/2023 Page 32 of 50

of liquor; (2) he drove the car in a drunken condition

at a very high speed; and (3) he failed to control the

vehicle and the vehicle could not be stopped before it

ran over the people sleeping on the pavement.

Xxx xxx xxx

75.The High Court observed that the accused could

not concentrate on driving as he was under the

influence of liquor and the vehicle was being driven

with loud noise and a tape recorder being played in

high volume. The High Court held that the accused

had more than 22 ft wide road for driving and there

was no occasion for a driver to swing to the left and

cover a distance of more than 55 ft; climb over the

footpath and run over the persons sleeping on the

footpath.

Xxx xxx xxx

78. We have also carefully considered the evidence let

in by the prosecution—the substance of which has been

referred to above—and we find no justifiable ground to

take a view different from that of the High Court. We

agree with the conclusions of the High Court and have

no hesitation in holding that the evidence and

materials on record prove beyond reasonable doubt

that the appellant can be attributed with knowledge

that his act of driving the vehicle at a high speed in a

rash or negligent manner was dangerous enough and

he knew that one result would very likely be that

people who were asleep on the pavement may be hit,

should the vehicle go out of control.

79.There is a presumption that a man knows the

natural and likely consequences of his acts. Moreover,

an act does not become involuntary act simply

because its consequences were unforeseen. The cases

of negligence or of rashness or dangerous driving do

not eliminate the act being voluntary. In the present

case, the essential ingredients of Section 304 Part II

IPC have been successfully established by the

prosecution against the appellant. The infirmities

pointed out by Mr U.U. Lalit, learned Senior Counsel

for the appellant, which have been noticed above are

not substantial and in no way affect the legality of the

trial and the conviction of the appellant under Section

CRL.REV.P. 564/2023 Page 33 of 50

304 Part II IPC. We uphold the view of the High Court

being consistent with the evidence on record and law.”

(emphasis supplied)

50.Similarly, the case of Sanjeev Nanda (supra) relates to an

unfortunate motor vehicle accident, caused by the accused, who under

the influence of alcohol, ran over his BMW car over 7 persons. On the

basis of the evidence placed forth, the learned Trial Court convicted

the accused under section 304 Part II of the IPC, however, the appeal

against the same was allowed and the High Court converted the

conviction of the accused from Section 304 part II to 304 A, observing

that there was no “knowledge” of causing death. The Hon’ble Apex

Court restored the conviction under Section 304 Part II, holding that

from the aggravated circumstances and the manner of accident i.e.

driving a high-powered vehicle in a drunken condition at high speed in

a public place, and continuing to drive even after hitting persons,

clearly reflected that the accused had the knowledge that his act was

likely to cause death. It was further emphasized that knowledge can be

inferred from the circumstances and the nature of the act and that such

cases cannot be treated as mere negligence. The relevant extract is

reproduced as under: -

“26. After having critically gone through the evidence

available on record, we have no doubt in our mind that

the accident had occurred solely and wholly on account

of rash and negligent driving of BMW car by the

respondent, at a high speed, who was also intoxicated

at that point of time. This fact has been admitted by the

respondent-accused at the appellate stage in the High

Court that at the relevant point of time, the respondent

was driving the vehicle and had caused the accident but

CRL.REV.P. 564/2023 Page 34 of 50

even then, it would be only his rash and negligent act,

attracting Section 304-A IPC only. Even though it is

difficult to come to the aforesaid conclusion, since he

was in an inebriated condition. For the simple reason

that he had already driven almost 16 km from the place

where he had started, to the point where he actually

met with the accident without encountering any

untoward incident would not go absolutely in favour of

the respondent. There is no evidence on record that

they had consumed more liquor on their way also. No

such material objects were recovered from the vehicle,

to suggest that even while driving they were consuming

liquor. One may fail to understand if one could drive

safely for a distance of 16 km, then whether the effect of

intoxication would rise all of a sudden so as to find the

respondent totally out of control. There is nothing of

that sort but it cannot be denied that he must have been

a little tipsy because of the drinks he had consumed

some time back. It is, indeed, extremely difficult to

assess or judge when liquor would show its effect or

would be at its peak. It varies from person to person.

Xxx xxx xxx

29. It has also come on record that seven persons were

standing close to the middle of the road. One would not

expect such a group, at least, at that place of the road,

that too in the wee hours of the morning, on such a

wintry night. There is every possibility of the accused

failing to see them on the road. Looking to all this, it

can be safely assumed that he had no intention of

causing bodily injuries to them but he had certainly

knowledge that causing such injuries and fleeing away

from the scene of accident, may ultimately result in

their deaths.

30. It is also pertinent to mention that soon after hitting

one of them, the accused did not apply the brakes so as

to save at least some of the lives. Since all the seven of

them were standing in a group, he had not realised that

impact would be so severe that they would be dragged

for several feet. Possibility also cannot be ruled out

that soon after hitting them, the respondent, a young

boy of 21 years then, might have gone into trauma and

could not decide as to what to do until the vehicle came

CRL.REV.P. 564/2023 Page 35 of 50

to a halt. He must have then realised the blunder he

committed.

31. The respondent, instead of rendering a helping

hand to the injured, ran away from the scene, thus

adding further to the miseries of the victims. It is not a

good trend to run away after causing motor road

accidents. An attempt should be made to render all

possible help, including medical assistance, if required.

Human touch to the same has to be given.

32. An aspect which is generally lost sight of in such

cases is that bodily injuries or death are as a

consequence of accidents. “Accident” has been defined

by Black's Law Dictionary as under:

“Accident.—(1) An unintended and unforeseen

injurious occurrence; something that does not occur in

the usual course of events or that could not be

reasonably anticipated.”

Thus, it means, if the injury/death is caused by an

accident, that itself cannot be attributed to an intention.

If intention is proved and death is caused, then it would

amount to culpable homicide.

33. It is to be noted that in Alister Anthony Pareira

case [(2012) 2 SCC 648 : (2012) 1 SCC (Cri) 953 :

(2012) 1 SCC (Civ) 848] , the earlier two judgments of

this Court in State of Gujarat v. Haidarali

Kalubhai [(1976) 1 SCC 889 : 1976 SCC (Cri) 211]

and Naresh Giri v. State of M.P. [(2008) 1 SCC 791 :

(2008) 1 SCC (Cri) 324] , both rendered by a Bench of

two learned Judges of this Court, were neither cited

nor have been referred to. Thus, the ratio decidendi of

these cases has not at all been considered in Alister

case [(2012) 2 SCC 648 : (2012) 1 SCC (Cri) 953 :

(2012) 1 SCC (Civ) 848] .

34. In the former case, it has been held in paras 4 and 5

as under: (Haidarali Kalubhai case [(1976) 1 SCC 889

: 1976 SCC (Cri) 211] , SCC p. 891)

“4. Section 304-A carves out a specific offence where

death is caused by doing a rash or negligent act and

that act does not amount to culpable homicide under

Section 299 IPC or murder under Section 300 IPC. If

a person wilfully drives a motor vehicle into the midst

of a crowd and thereby causes death to some persons,

it will not be a case of mere rash and negligent driving

CRL.REV.P. 564/2023 Page 36 of 50

and the act will amount to culpable homicide. Each

case will, therefore, depend upon the particular facts

established against the accused.

5. The prosecution in this case wanted to establish a

motive for committing the offence against the

Sarpanch. It was sought to be established that there

was enmity between the Sarpanch and the accused

and his relations on account of panchayat elections.

Some evidence was led in order to prove that the

accused and his relations were gunning against the

Sarpanch for some time after the latter's election as

Sarpanch. Even an anonymous letter was received by

the Sarpanch threatening his life which was handed

over to the police by the Sarpanch. Both the Sessions

Judge as well as the High Court did not accept the

evidence appertaining to motive. Mr Mukherjee,

therefore, rightly and very fairly did not address us

with regard to that part of the case. Even so, the

learned counsel submits that the act per se and the

manner in which the vehicle was driven clearly

brought the case under Section 304 Part II IPC.”

35. It is further held in the same judgment at para 10 as

under: (Haidarali Kalubhai case [(1976) 1 SCC 889 :

1976 SCC (Cri) 211] , SCC p. 892)

“10. Section 304-A by its own definition totally

excludes the ingredients of Section 299 or Section 300

IPC. Doing an act with the intent to kill a person or

knowledge that doing of an act was likely to cause a

person's death are ingredients of the offence of

culpable homicide. When intent or knowledge as

described above is the direct motivating force of the

act complained of, Section 304-A has to make room

for the graver and more serious charge of culpable

homicide.”

36. It is interesting to note that this judgment

in Haidarali case [(1976) 1 SCC 889 : 1976 SCC (Cri)

211] had been a sheet anchor of arguments of both the

learned Senior Counsel appearing for parties. They

have read it differently and have tried to put different

interpretations to the same.

37. In the latter case of Naresh Giri [(2008) 1 SCC 791

: (2008) 1 SCC (Cri) 324] it has been held in the

headnote as under: (SCC pp. 791-92)

CRL.REV.P. 564/2023 Page 37 of 50

“Section 304-A IPC applies to cases where there is no

intention to cause death and no knowledge that the act

done in all probability will cause death. The provision

is directed at offences outside the range of Sections 299

and 300 IPC. Section 304-A applies only to such acts

which are rash and negligent and are directly the cause

of death of another person. Negligence and rashness

are essential elements under Section 304-A.

Section 304-A carves out a specific offence where death

is caused by doing a rash or negligent act and that act

does not amount to culpable homicide under Section

299 or murder under Section 300. If a person wilfully

drives a motor vehicle into the midst of a crowd and

thereby causes death to some person, it will not be a

case of mere rash and negligent driving and the act will

amount to culpable homicide. Doing an act with the

intent to kill a person or knowledge that doing an act

was likely to cause a person's death is culpable

homicide. When intent or knowledge is the direct

motivating force of the act, Section 304-A has to make

room for the graver and more serious charge of

culpable homicide.”

38. We may profitably deal with the definition of

“reckless” as defined in The Law Lexicon, which reads

as under:

“Reckless.—Characterized by the creation of a

substantial and unjustifiable risk of harm to others and

by a conscious (and sometimes deliberate) disregard

for or indifference to that risk; heedless; rash. Reckless

conduct is much more than mere negligence: it is a

gross deviation from what a reasonable person would

do. (Black's Law Dictionary, 7th Edn., 1999)

‘Intention cannot exist without foresight, but foresight

can exist without intention. For a man may foresee the

possible or even probable consequences of his conduct

and yet not desire them to occur; none the less if he

persists on his course he knowingly runs the risk of

bringing about the unwished result. To describe this

state of mind the word “reckless” is the most

appropriate. …’”

39. For our own benefit it is appropriate to reproduce

Section 304 IPC, which reads thus:

CRL.REV.P. 564/2023 Page 38 of 50

“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.”

A critical and microscopic analysis thereof shows that

once knowledge that it is likely to cause death is

established but without any intention to cause death,

then jail sentence may be for a term which may extend

to 10 years or with fine or with both.

This extract is taken from State v. Sanjeev Nanda,

(2012) 8 SCC 450 : (2012) 4 SCC (Civ) 487 : (2012) 3

SCC (Cri) 899 : 2012 SCC OnLine SC 582 at page

471

40. Now, we have to consider if it is a fit case where

conviction should be altered to Section 304 Part II IPC

and sentence awarded should be enhanced.

41. We are of the considered view that looking to the

nature and manner in which the accident had taken

place, it can safely be held that the respondent had no

intention to cause death but certainly had the

knowledge that his act may result in death.

42. Thus, looking to the matter from all angles, we

have no doubt in our mind that knowledge can still be

attributed to accused Sanjeev that his act might cause

such bodily injuries which may, in ordinary course of

nature, be sufficient to cause death but certainly he

did not have any intention to cause death. He was not

driving the vehicle with that intention. There is

nothing to prove that he knew that a group of persons

was standing on the road he was going to pass

through. If that be so, there cannot be an intention to

cause death or such bodily injury as is likely to cause

CRL.REV.P. 564/2023 Page 39 of 50

death. Thus, in our opinion, he had committed an

offence under Section 304 Part II IPC. We

accordingly hold so.

Xxx xxx xxx

47. In the light of the aforesaid discussion, the appeal

is partly allowed. The judgment [Sanjeev

Nanda v. State, (2009) 160 DLT 775] and order of

conviction passed by the Delhi High Court is partly set

aside and the order of conviction of the trial court is

restored and upheld. The accused is held guilty under

Section 304 Part II IPC. Looking to the facts and

circumstances of the same, we deem it appropriate to

maintain the sentence awarded by the High Court,

which he has already undergone. However, we make it

clear that this has been held so, looking to the very

peculiar facts and features of this particular case and it

may not be treated as a precedent of general

proposition of law on the point, for other cases.

Xxx xxx xxx

K.S.P.RADHAKRISHNAN,J. (supplementing [Ed.:

Deepak Verma, J. has signed this opinion as well.] )—

Section 304 Part II or Section 304-A IPC

102. We may in the above background examine whether

the offence falls under Section 304 Part II IPC or

Section 304-A IPC from the facts unfolded in this case.

Shri Raval, appearing for the State, as already

indicated, argued that the facts of this case lead to the

irresistible conclusion that it would fall under Section

304 Part II IPC. The learned counsel pointed out that

the accused after having noticed that the speeding car

had hit several persons, left the spot without giving any

medical aid or help knowing fully well that his act was

likely to cause death. The learned counsel pointed out

that in any view, it would at least fall under Section 304

Part II IPC.

Xxx xxx xxx

111. In Jagriti Devi v. State of H.P. [(2009) 14 SCC

771 : (2010) 2 SCC (Cri) 245] a Bench of this Court

held that it is trite law that Section 304 Part II comes

into play when the death is caused by doing an act

withknowledge that it is likely to cause death but

there is no intention on the part of the accused either

CRL.REV.P. 564/2023 Page 40 of 50

to cause death or to cause such bodily injury as is

likely to cause death.

114. The principle mentioned by this Court in Alister

Anthony Pareira [(2012) 2 SCC 648 : (2012) 1 SCC

(Cri) 953 : (2012) 1 SCC (Civ) 848] indicates that the

person must be presumed to have had the knowledge

that, his act of driving the vehicle without a licence in a

high speed after consuming liquor beyond the

permissible limit, is likely or sufficient in the ordinary

course of nature to cause death of the pedestrians on

the road. In our view, Alister Anthony Pareira [(2012)

2 SCC 648 : (2012) 1 SCC (Cri) 953 : (2012) 1 SCC

(Civ) 848] judgment calls for no reconsideration.

Assuming that Shri Ram Jethmalani is right in

contending that while he was driving the vehicle in a

drunken state, he had no intention or knowledge that

his action was likely to cause death of six human

beings, in our view, at least, immediately after having

hit so many human beings and the bodies scattered

around, he had the knowledge that his action was likely

to cause death of so many human beings, lying on the

road unattended. To say, still he had no knowledge

about his action is too childish which no reasonable

man can accept as worthy of consideration. So far as

this case is concerned, it has been brought out in

evidence that the accused was in an inebriated state,

after consuming excessive alcohol, he was driving the

vehicle without licence, in a rash and negligent manner

in a high speed which resulted in the death of six

persons. The accused had sufficient knowledge that

his action was likely to cause death and such an

action would, in the facts and circumstances of this

case, fall under Section 304 Part II IPC and the trial

court has rightly held so and the High Court has

committed an error in converting the offence to

Section 304-A IPC.

115. We may now examine the mitigating and

aggravating circumstances and decide as to whether

the punishment awarded by the High Court is

commensurate with the gravity of the offence.

116. The mitigating circumstances suggested by the

defence counsel are as follows:

CRL.REV.P. 564/2023 Page 41 of 50

(i) The accused was only 21 years on the date of the

accident, later married and has a daughter;

(ii) Prolonged trial and judicial unfairness caused

prejudice;

(iii) The accused has undergone sentence of two years

awarded by the High Court and, during that period, his

conduct and behaviour in the jail was appreciated;

(iv) Accident occurred on a foggy day in the early

hours of morning with poor visibility;

(v) The accused had no previous criminal record nor

has he been involved in any criminal case

subsequently;

(vi) The accused and the family members contributed

and paid a compensation of Rs 65 lakhs, in total, in the

year 1999 to the families of the victims;

(vii) The accused had neither the intention nor

knowledge of the ultimate consequences of his action

and that he was holding a driving licence from the

United States.

117. Following are, in our view, the aggravating

circumstances unfolded in this case:

(i) Six persons died due to the rash and negligent

driving of the accused and the car was driven with the

knowledge that drunken driving without licence is

likely to cause death.

(ii) Much of the delay in completing the trial could have

been avoided if wisdom had dawned on the accused

earlier. Only at the appellate stage the accused had

admitted that it was he who was driving the vehicle on

the fateful day which resulted in the death of six

persons and delay in completion of the trial cannot be

attributed to the prosecution as the prosecution was

burdened with the task of establishing the offence

beyond reasonable doubt by examining sixty-one

witnesses and producing several documents including

expert evidence.

(iii) The accused did not stop the vehicle in spite of the

fact that the vehicle had hit six persons and one got

injured and escaped from the spot without giving any

helping hand to the victims who were dying and crying

for help. Human lives could have been saved, if the

accused had shown some mercy.

CRL.REV.P. 564/2023 Page 42 of 50

(iv) The accused had the knowledge that the car driven

by him had hit the human beings and human bodies

were scattered around and they might die, but he

thought of only his safety and left the place, leaving

their fate to destiny which, in our view, is not a normal

human psychology and no court can give a stamp of

approval to that conduct.

(v) Non-reporting the crime to the police even after

reaching home and failure to take any steps to provide

medical help even after escaping from the site.

Xxx xxx xxx

Sentencing

119.We have to decide, after having found on facts,

that this case would fall under Section 304 Part II,

what will be the appropriate sentence. Generally, the

policy which the court adopts while awarding sentence

is that the punishment must be appropriate and

proportional to the gravity of the offence committed.

Law demands that the offender should be adequately

punished for the crime, so that it can deter the offender

and other persons from committing similar offences.

Nature and circumstances of the offence; the need for

the sentence imposed to reflect the seriousness of the

offence; to afford adequate deterrence to the conduct

and to protect the public from such crimes are certain

factors to be considered while imposing the sentence.

Xxx xxx xxx

121.The High Court, in our view, has committed an

error in converting the conviction to Section 304-A

IPC from that of Section 304 Part II IPC and the

conviction awarded calls for a relook on the basis of

the facts already discussed, otherwise this Court will

be setting a bad precedent and sending a wrong

message to the public. After having found that the

offence would fall under Section 304 Part II IPC, not

under Section 304-A, the following sentence awarded

would meet the ends of justice, in addition to the

sentence already awarded by the High Court.”

(Emphasis supplied)

CRL.REV.P. 564/2023 Page 43 of 50

51.From the conspectus of the above judgments, it is evident that

cases of motor vehicle accidents resulting in death are heavily fact-

dependent, and the applicability of Section 304A or Section 304 Part II

depends primarily upon the manner of the accident and the mental

element attributable to the accused, which has to be gathered from the

evidence. Keeping in mind the aforesaid principles the facts of the

present case are required to be examined.

52.In the present case, firstly, the Petitioner/CCL, aged 17 years 11

months 26 days, was driving his Mercedes car bearing No. DL-2FCM-

3000, on the date of the incident without a valid license, at a speed of

approximately 80–100 kmph, in a zone where the permissible speed

limit was 50 kmph. The prosecution has also relied upon the FSL

report which suggests that the speed of the offending vehicle was 90-

95 Kmph.

53.Secondly, the other six co-occupants of the offending vehicle, have

categorically stated in their statements under section 161 and 164 of

the CrPC that the Petitioner/CCL was driving the vehicle at a very

high speed, he has a habit of over speeding and driving his vehicle in a

rash manner and despite repeated requests to drive carefully and to

reduce the speed of the offending vehicle, the Petitioner/CCL did not

pay heed to the warnings.

54.Thirdly, the eyewitnesses, namely Mr. Girish Kumar, Mr. Pradeep

Satia and Mr. Narender Singh as well as Mr. Amanjeet Bhatia and Mr.

Vijender Nagar have stated in their statement under section 161 of the

CrPC that the offending Mercedes car bearing No. DL 2F CM 3000,

CRL.REV.P. 564/2023 Page 44 of 50

came at a very high speed of about 100 Kmph and hit the

deceased/Shiddharth Sharma, who was crossing the road and

consequently that person fell on the road after bouncing 15/20 feet in

the air and sustained fatal injuries. The occupants of the vehicle, i.e.

few boys aged between 15-18 years, de-boarded the vehicle and ran

away and it was these eye-witnesses who helped the injured reached

SPN Hospital.

55.Fourthly, it has also come on record that the Petitioner had also

dodged two motor-cyclists and Mr. Amanjeet Bhatia and Mr. Vijender

Nagar had a narrow escape from the offending vehicle, while was

being driven at a speed of about 100 Kmph. The same is also

supported by the statement of Shrey Monga, Ayush Rastogi and Sanad

Goel as well.

56.Fifthly, the prosecution has also brought forth the previous traffic

challans and traffic violations by the Petitioner/CCL, including one of

over-speeding, to allege that the Petitioner was not new to driving

without a license as minor and was always aware of the fatal

consequences of his act of driving his vehicle at such a high speed,

without having a valid driving license and requisite skills to drive the

vehicle.

57.Sixthly, the accident has occurred at 8:45 p.m., on a busy public

road at peak traffic hours and not on a secluded road or open ground

where the chances of other pedestrians or vehicles on the road would

be comparatively lesser.

CRL.REV.P. 564/2023 Page 45 of 50

58.Lastly, the prosecution has also brought on record the FSL report

which prima facie suggests that there are no skid marks and thus, the

Petitioner/CCL did not apply brakes to save the victim and the manner

of accident as reflected in the CCTV footage also prima facie

demonstrates that the manner in which the vehicle was being driven,

death of a person would have been the most likely outcome.

59.Upon consideration of the material placed on record, the learned

JJB formed a prima facie opinion that the element of “knowledge” that

such conduct was likely to cause death is discernible, without

recording any conclusive finding on culpability. The manner of the

accident, coupled with the fact that the Petitioner/CCL was a minor

and ineligible to hold a valid driving licence, reasonably led the Board

to infer lack of requisite driving skill and awareness of the probable

fatal consequences. Accordingly, it was observed that notice for the

offence punishable under Section 304 Part II IPC was liable to be

framed.

60.Now, whether these circumstances ultimately establish

“knowledge” as required under section 304 part II, beyond reasonable

doubt, or the same falls within the lesser offence of 304 A or 279 of

the IPC, if at all, is a matter for trial and cannot be ascertained without

evidence led by parties. Even the defence contentions raised that high

speed or lack of driving license cannot by itself constitute

“knowledge” as required under Section 304 part II or that the traffic

signal was green, that the road was relatively empty, or that the victim

may have suddenly changed direction, are matters which require

CRL.REV.P. 564/2023 Page 46 of 50

evidentiary evaluation. At this stage this Court cannot embark upon a

comparative assessment of the prosecution and defence versions or

conduct a detailed scrutiny of CCTV footage and the photographs.

61.The determination of the existence of mental elements such as

“intention” or “knowledge”, and whether the act in question amounts

merely to “rashness” or “negligence” or rises to the level of conscious

awareness of a likely fatal consequence, is essentially fact-specific and

can only be conclusively adjudicated upon appreciation of evidence

led by the parties. At the present stage, the Court is not required to and

cannot record definitive findings on such mental state. Hence, since

the material prima facie discloses the ingredients of Section 304 Part

II IPC, it was appropriate for the learned JJB to frame notice for the

said higher offence, leaving it open to the Board, upon conclusion of

inquiry, to determine whether the evidence ultimately sustains the said

charge or whether the case falls within the ambit of a lesser offence

such as Section 304A IPC. Such an approach obviates the possibility

of prejudice or procedural complications that may arise if the evidence

were later to justify the higher offence.

62.This approach has also been endorsed in the decision of the

Hon’ble Supreme Court in Ghulam Hassan Beigh (supra), wherein it

was observed that at the stage of framing of charge, if the material

discloses ingredients of a higher offence, it would be appropriate and

prudent to frame such charge, leaving it open to the trial court, upon

appreciation of evidence, to alter or modify the charge in accordance

with law. It was recognized that framing of a higher charge at the

CRL.REV.P. 564/2023 Page 47 of 50

initial stage does not cause prejudice to the accused, as the power to

alter to a lesser charge is well preserved and conversely, omission to

frame the appropriate higher charge at the outset may necessitate

recommencement of proceedings if the evidence ultimately so

warrants. The relevant extract is reproduced as under: -

“31. To put it in other words, whether the cause of

death has any nexus with the alleged assault on the

deceased by the accused persons could have been

determined only after the recording of oral evidence

of the eyewitnesses and the expert witness along with

the other substantive evidence on record. The post-

mortem report of the doctor is his previous statement

based on his examination of the dead body. It is not

substantive evidence. The doctor's statement in court

is alone the substantive evidence. The post-mortem

report can be used only to corroborate his statement

under Section 157, or to refresh his memory under

Section 159, or to contradict his statement in the

witness box under Section 145 of the Evidence Act,

1872. A medical witness called in as an expert to

assist the court is not a witness of fact and the

evidence given by the medical officer is really of an

advisory character given on the basis of the symptoms

found on examination. The expert witness is expected

to put before the court all materials inclusive of the

data which induced him to come to the conclusion

and enlighten the court on the technical aspect of the

case by explaining the terms of science so that the

court although, not an expert may form its own

judgment on those materials after giving due regard

to the expert's opinion because once the expert's

opinion is accepted, it is not the opinion of the

medical officer but of the court.

32.The prosecution should have been given

opportunity to prove all the relevant facts including

the post-mortem report through the medical officer

concerned by leading oral evidence and thereby seek

the opinion of the expert. It was too early on the part

of the trial court as well as the High Court to arrive

at the conclusion that since no serious injuries were

CRL.REV.P. 564/2023 Page 48 of 50

noted in the post-mortem report, the death of the

deceased on account of “cardio respiratory failure”

cannot be said to be having any nexus with the

incident in question.

33. Whether the case falls under Section 302 or 304

Part II IPC could have been decided by the trial

court only after the evaluation of the entire oral

evidence that may be led by the prosecution as well

as by the defence, if any, comes on record.

Ultimately, upon appreciation of the entire evidence

on record at the end of the trial, the trial court may

take one view or the other i.e. whether it is a case of

murder or case of culpable homicide. But at the

stage of framing of the charge, the trial court could

not have reached to such a conclusion merely

relying upon the post-mortem report on record. The

High Court also overlooked such fundamental

infirmity in the order passed by the trial court and

proceeded to affirm the same.

34. We may now proceed to consider the issue on

hand from a different angle. It is a settled position of

law that in a criminal trial, the prosecution can lead

evidence only in accordance with the charge framed

by the trial court. Where a higher charge is not

framed for which there is evidence, the accused is

entitled to assume that he is called upon to defend

himself only with regard to the lesser offence for

which he has been charged. It is not necessary then

for him to meet evidence relating to the offences

with which he has not been charged. He is merely to

answer the charge as framed. The Code does not

require him to meet all evidence led by the

prosecution. He has only to rebut evidence bearing

on the charge. The prosecution case is necessarily

limited by the charge. It forms the foundation of the

trial which starts with it and the accused can

justifiably concentrate on meeting the subject-matter

of the charge against him. He need not cross-

examine witnesses with regard to offences he is not

charged with nor need he give any evidence in

defence in respect of such charges.

35. Once the trial court decides to discharge an

accused person from the offence punishable under

CRL.REV.P. 564/2023 Page 49 of 50

Section 302 IPC and proceeds to frame the lesser

charge for the offence punishable under Section 304

Part II IPC, the prosecution thereafter would not be

in a position to lead any evidence beyond the charge

as framed. To put it otherwise, the prosecution will

be thereafter compelled to proceed as if it has now to

establish only the case of culpable homicide and not

murder. On the other hand, even if the trial court

proceeds to frame charge under Section 302IPC in

accordance with the case put up by the prosecution

still it would be open for the accused to persuade the

Court at the end of the trial that the case falls only

within the ambit of culpable homicide punishable

under Section 304IPC. In such circumstances, in

the facts of the present case, it would be more

prudent to permit the prosecution to lead

appropriate evidence whatever it is worth in

accordance with its original case as put up in the

charge-sheet. Such approach of the trial court at

times may prove to be more rationale and prudent.

36. In view of the aforesaid discussion, the order

[Ghulam Hassan Beigh v. Mohd. Maqbool Magrey,

2020 SCC OnLine J&K 735] of the High Court as

well as the order of the trial court deserve to be set

aside.

37. In the result, this appeal succeeds and is hereby

allowed. The orders passed by the High Court and the

trial court are hereby set aside. The trial court shall

now proceed to pass a fresh order framing charge in

accordance with law keeping in mind the

observations made by this Court.”

(Emphasis supplied)

63.Thus, in view of the aforesaid principles, where the material on

record prima facie discloses the ingredients of Section 304 Part II IPC,

this Court finds no infirmity in the impugned orders framing

Notice/charge for Section 304 part II against the accused/CCL and the

learned JJB can alter or modify or reduce the charge in accordance

with law, after appraisal of the evidence.

CRL.REV.P. 564/2023 Page 50 of 50

64.As regards the offence under Sections 134/187 of the MV Act, the

learned JJB has directed framing of notice on the basis of the

prosecution material which alleges that the Petitioner, along with the

other occupants of the vehicle, fled from the spot immediately after

the incident, leaving the injured victim behind. The prosecution

version prima facie attracts the ingredients of the said provisions. The

contention raised on behalf of the Petitioner that he had, in fact,

assisted in placing the victim in an auto-rickshaw for being taken to

the hospital and that arrangements for medical treatment were

subsequently made through his father constitutes a matter of defence

which can only be evaluated upon appreciation of evidence.

65.Thus, without expressing any opinion on the ultimate merits of the

case, this Court finds no ground warranting interference in the

impugned orders.

66.It is clarified that the observations made herein are confined to the

adjudication of the present revision petition and shall not be construed

as expressing any conclusive finding on the merits of the case.

67.The learned JJB shall independently assess the evidence and

determine the appropriate offence, in accordance with law,

uninfluenced by any observation contained herein.

68.In view of the above discussion, the present petition is dismissed,

along with pending application(s), if any.

AMIT MAHAJAN, J

APRIL 17, 2026

JN