Person Driving Without License Has Knowledge That Act Likely To Cause Death: Kerala HC Refuses To Modify Conviction From S.304 To 304A IPC

The Kerala High Court has held that when there is knowledge to the accused that the act he has done is likely to cause the death of a person and with the said knowledge he does the act and in consequence thereof the person dies, it will fall under Section 304 Part II IPC.Justice A Badharudeen, while distinguishing between offences falling under Section 304A and Section 304 Part II IPC observed that when intent or knowledge is the direct motivating force of the act, Section 304A of IPC has to make room for the graver and more serious charge of culpable homicide. The law is clear on the point that when there is knowledge to the accused that the act he had done is likely to cause death of a person and with the said knowledge he had done the act and in consequence thereof the person died, it will be definitely a case falling under Section 304 Part II of I.P.C.The matter in this case is that the first accused, who had a deformity on his left wrist and who also did not possess a proper and valid driving licence, had driven a bus with the knowledge that the same would be likely to cause an accident and fatal consequences. The bus hit on a culvert on the right side of the road and fell to the depth on the other side of the road, thereby resulting in the death of 5 persons travelling in the bus and 63 passengers were seriously injured. The prosecution further alleged that the second accused, who is the brother of the first accused and the owner of the bus authorised the first accused to drive the bus, with the knowledge that authorising such a person to drive the vehicle would be likely to cause an accident and fatal consequences. Thus prosecution case is that both the accused with common intention, committed offence under Section 304 Part II r/w 34 of IPC.Counsel appearing for the appellants, Advocates S. M. Prem and K. P. Santhi, pressed for acquittal or conversion of the conviction and sentence under S. 304 IPC urging that the findings of the trial court are wrong as the prosecution failed to prove any offence committed by the accused and even then the conviction should have been for the offence under section 304A IPC instead of Section 304 Part II r/w 34 IPC. However, the Senior Public Prosecutor, Advocate Denny Devassy, submitted that the 2nd accused had authorised the 1st accused, who had a deformity on his left hand and who did not possess a valid driving licence, to drive the bus, which resulted in the death of 5 people and serious injuries to 63 persons. Therefore, the knowledge contemplated under Section 304 Part II r/w 34 of IPC is well attracted on the part of both the accused since the witnesses gave evidence to the effect that the high speed of the vehicle had resulted in the accident. Answering the question as to whether the offence committed by the accused persons falls under section 304A or 304 Part II IPC, the court opined that it is necessary to look into the ingredients that make up each section. The court relied heavily on the Supreme Court decision in Alister Anthony Pareira v. State of Maharastra, wherein it was observed that: 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 I.P.C 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 of I.P.C.Referring to Alister Anthony Pareira v. State of Maharashtra, State Tr. PS Lodhi Colony New Delhi v. Sanjeev Nanda and a number of other Supreme Court decisions, the court observed that it is clear on the point that when there is knowledge to the accused that the act he had done is likely to cause the death of a person and with the said knowledge he had done the act and in consequence thereof the person died, it will fall under Section 304 Part II IPC. 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 304A of I.P.C has to make room for the graver and more serious charge of culpable homicide.Justice Badharudeen observed that the ingredients to constitute an offence punishable under section 304 part II of IPC are the following:(i) The act was done by the accused;(ii) the said act of the accused caused death(iii) the said act was done with the `knowledge' that it is likely to cause death.Furthermore, the court also held that the ingredients to constitute an offence under Section 304A of IPC, the ingredients of Section 299 or Section 300 of IPC are totally excluded and the said offence includes rash or negligent act or the said act of the accused if caused death and the said act was done without intention or knowledge likely to cause death.On oral re-appreciation of the evidence, the court held that...

Person Driving Without License Has Knowledge That Act Likely To Cause Death: Kerala HC Refuses To Modify Conviction From S.304 To 304A IPC

Athira Prasad

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