Bakwal Nagar, Post Waluj, Tq. Gangapur, Dist. Chh. Sambhajinagar v. State of Maharashtra
Facts
1838.25BAIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADBAIL APPLICATION NO.838 OF 2025 Vishal @ Uddhav Dnyaneshwar Chavan, Age: 22 years, Occ : Student, R/o. Bakwal Nagar, Post Waluj, Tq. Gangapur, Dist. Chh. Sambhajinagar. .. APPLICANT VERSUS State of Maharashtra .. RESPONDENT…Mr.S.G.Ladda, Advocate for the applicant. Mrs.V.N.Patil-Jadhav, APP for the respondent-State…CORAM :ARUN R. PEDNEKER, J.DATE :16.07.2025P.C. : 1]Heard learned counsel for the applicant and thelearned APP for the respondent-State. 2]The applicant is seeking bail as he is arrested on14.09.2024 in connection with Crime No.255/2024,registered with Waluj Police Station, Dist. ChatrapatiSambhajinagar, for the offence punishable under Sections105, 110, 324 (5) of the BNS. 3]It is alleged in the FIR that on 13.09.2024, theinformant was proceeding in his car bearing NO. MH-27-BZ- 2838.25BA0045 from Chhatrapati Sambhajinagar to Pune along withhis wife Mrunalini, son Amol, mother-in-law AshalataPopalghate and his sister-in-law Shubhangini Gite and herdaughter Durga Gite. When their car reached nearLimbejalgaon Toll-Plaza, applicant came from oppositedirection by driving White Scorpio No. MH-12-KJ-4134 in arash and negligent manner in high speed and dashed on atruck and then by crossing divider gave forceful dash to thecar of the informant from its front side. The people gatheredon the spot and have taken the informant and other injuredin the car to the Hospital by ambulance. In the saidaccident, the wife of informant, their son Amol, his motherin law Ashalata and daughter of his sister in law Durga Gitehave lost their lives. The informant and his sister-in-lawwere seriously injured. The applicant was driving thevehicle under the influence of liquor. He was not holdingdriving license. As such, the FIR is registered for the offencepunishable under Sections 105, 110, 324 (5) of the BNS.The applicant is arrested on 14.09.2024. The investigationis complete and the charge sheet is filed in the matter. Thebail application was filed by the applicant before the trialCourt and the same was rejected. As such, the present BailApplication is filed before this Court. 4]Primarily, the contention of the applicant is thateven if the prosecution case is taken as it is, the offence fallunder Section 106 of BNS [Section 304-A of the IPC] and
Legal Reasoning
4838.25BApeople lost their lives. He further submits that the offencewould be fall under Section 106 of BNS [Section 304A ofIPC] and not under Section 105 of BNS [Section 304 of IPC]and it would be appropriate to determine in the trialwhether the offence would strictly fall under Section 106 ofBNS [Section 304A of IPC] or under Section 105 of BNS[Section 304 of IPC]. He relies upon the order dated 20thJune, 2024 passed by this Court in Bail ApplicationNo.957/2024 in the case of Akhilesh Sanjay Pawar Vs. TheState of Maharashtra and submits that the bail has beengranted by this Court in identical fact situation. He alsorelies upon the judgment of the Hon’ble Supreme Court inthe case of Naresh Giri Vs. State of M.P. reported in (2008)1 SCC 791 and submits that in the identical facts situation,the Supreme Court has granted bail. He further submits thatthe applicant is arrested on 14.09.2024 and he is in custodyfrom last 9 months. Considering the said fact, the bailshould be granted in favour of the applicant. 5]Per contra, the learned APP submits that theapplicant was driving the vehicle in extremely high speedunder the influence of liquor and four people have lost theirlives. Considering the said fact, the bail should not begranted in favour of the applicant. The offence would fallclearly under Section 105 of BNS and thus bail should notbe granted to the applicant. 5838.25BA6]Having considered the rival submissions. Thealcohol examination certificate shows that the alcoholcontent in the blood of the applicant was far beyondexceeding limits, as such, prima facie it can be said that theapplicant was driving the vehicle under the influence ofliquor. 7]The law on the applicability of Section 105 ofBNS [Section 304 of IPC] and Section 106 of BNS [Section304A of IPC] has been discussed in the case of BhuneshwarNishad and another Vs. State of Chhattisgarh reported in2023 SCC ONLine Chh 5784 at para nos.16 to 19 has notedthe judgments of Supreme Court as under : 16. In the matter of State of Gujarat v. HaidaraliKalubhai, the Supreme Court explained the relativescope of two Sections namely 304A and 304 (Part II)of IPC. Their Lordships observed pertinently asunder:-"10. Section 304A by its own definition totallyexcludes the ingredients of Section 299 orSection 300 IPC. Doing an act with the intentto kill a person or knowledge that doing of anact was likely to cause a person's death areingredients of the offence of culpable homicide.When intent or knowledge as described aboveis the direct motivating force of the actcomplained of, section 304A has to make roomfor the graver and more serious charge ofculpable homicide. Does this happen in thiscase?" 6838.25BA17. Thereafter, again in the matter of Balwant Singhv. State of Punjab, their Lordships of the SupremeCourt has clearly held that Section 304A applies tothe offence outside the range of Section 299 and 300of IPC. The provision of Section 304A of IPC wouldapply to cases where there is no intention to causedeath and no knowledge that the act done in allprobability will cause death and clearly held asunder:-"8. Then the question would be whether anoffence under Section 304-A IPC is made out?The provisions of this section apply to caseswhere there is no intention to cause death andno knowledge that the act done in allprobabilities will cause death. Therefore thisprovision is directed at offences outside therange of Sections 299 and 300 IPC andobviously contemplates those cases into whichneither intention nor knowledge enters. Thewords "not amounting to culpable homicide" inthe section are very significant and it musttherefore be understood that intentionally orknowingly inflicted violence directly andwilfully caused is excluded. The section appliesonly to such acts which are rash or negligentand are directly the cause of death of anotherperson. In other words, a rash act is primarilyan overhasty act as opposed to a deliberate actbut done without due care and caution. Thenthe question whether the conduct of theaccused amounted to culpable rashness ornegligence depends on the amount of care andcircumspection which a prudent andreasonable man would consider it to besufficient and this depends on thecircumstances in each case."18. Thereafter, again in the matter of Shankar 7838.25BANarayan Bhadolkar v. State of Maharashtra, theSupreme Court defining distinction between Section304A and 304 (Part II) of IPC has held as under: -"18. Coming to the plea of the applicability ofSection 304A it is to be noted that the saidprovision relates to death caused bynegligence. Section 304A applies to caseswhere there is no intention to cause death andno knowledge that the act done in allprobabilities will cause death. The provisionrelating to offences outside the range ofSections 299 and 300 IPC. It applies only tosuch acts which are rash and negligent and aredirectly the cause of death of another person.Rashness and negligence are essential elementsunder Section 304A. It carves out a specificoffence where death is caused by doing a rashor negligent act and that act does not amountto culpable homicide under Section 299 ormurder in Section 300 IPC. Doing an act withthe intent to kill a person or knowledge thatdoing an act was likely to cause a persons'death is culpable homicide. When the intent orknowledge is the direct motivating force of theact, Section 304A IPC has to make room for thegraver and more serious charge of culpablehomicide."19. Again, their Lordships of the Supreme Court in thematter of Naresh Giri v. State of M.P., highlighted therelative scope of Section 304 and 304A of IPC byholding as under:-"7. Section 304-A IPC applies to cases wherethere is no intention to cause death and noknowledge that the act done, in allprobabilities, will cause death. This provision isdirected at offences outside the range of 8838.25BASections 299 and 300 IPC. Section 304-Aapplies only to such acts which are rash andnegligent and are directly the cause of death ofanother person. Negligence and rashness areessential elements under Section 304-A.8. Section 304-A carves out a specific offencewhere death is caused by doing a rash ornegligent act and that act does not amount toculpable homicide under Section 299 ormurder under Section 300. If a person willfullydrives a motor vehicle into the midst of acrowd and thereby causes death to someperson, it will not be a case of mere rash andnegligent driving and the act will amount toculpable homicide. Doing an act with the intentto kill a person or knowledge that doing an actwas likely to cause a person's death is culpablehomicide. When the intent or knowledge is thedirect motivating force of the act, Section 304-A has to make room for the graver and moreserious charge of culpable homicide. Theprovision of this section is not limited to rashor negligent driving. Any rash or negligent actwhereby death of any person is causedbecomes punishable. Two elements either ofwhich or both of which may be proved toestablish the guilt of an accused arerashness/negligence, a person may cause deathby a rash or negligent act which may havenothing to do with driving at all. Negligenceand rashness to be punishable in terms ofSection 304-A must be attributable to a state ofmind wherein the criminality arises because ofno error in judgment but of a deliberation inthe mind risking the crime as well as the life ofthe person who may lose his life as a result ofthe crime. Section 304-A discloses thatcriminality may be that apart from any mens 9838.25BArea, there may be no motive or intention still aperson may venture or practice such rashnessor negligence which may cause the death ofother. The death so caused is not thedetermining factor."8]In the above referred judgments, the Hon’bleSupreme Court has consistently held that Section 304A byits own definition totally excludes the ingredients of Section299 or Section 300 IPC. Doing an act with the intent to killa person or knowledge that doing of an act was likely tocause a person’s death are ingredients of the offence ofculpable homicide. When intent or knowledge as describedabove is the direct motivating force of the act complainedof, section 304A has to make room for the graver and moreserious charge of culpable homicide. 9]The Hon’ble Supreme Court in the case of rashand negligent act held that the section applies only to suchacts which are rash or negligent and are directly the causeof death of another person. In other words, a rash act isprimarily an overhasty act as opposed to a deliberate act butdone without due care and caution. Then the questionwhether the conduct of the accused amounted to culpablerashness or negligence depends on the amount of care andcircumspection which a prudent and reasonable man wouldconsider it to be sufficient and this depends on thecircumstances in each case. 10838.25BA10]The Hon’ble Supreme Court in the case ofAlister Anthony Pareira Vs. State of Maharashtra reported in[2012] 2 SCC 648 has examined the issue of applicability ofSection 304A and 304-II of the IPC in detail. The Court hasobserved that if the act is done with the knowledge of thedangerous consequences which are likely to follow and ifdeath is caused then not only that the punishment is for theact but also for the resulting homicide and a case may fallwithin Section 299 or Section 300 depending upon themental state of the accused viz., as to whether the act wasdone with one kind of knowledge or with intention or withboth. Knowledge is awareness on the part of the personconcerned of the consequences of his act of omission orcommission indicating his state of mind. There may beknowledge of likely consequences without any intention.Criminal culpability is determined by referring to what aperson with reasonable prudence would have known. TheCourt has further observed that rash and negligent drivingon a public road with the knowledge of the dangerouscharacter and the likely effect of the act and resulting indeath may fall in the category of culpable homicide notamounting to murder. A person, doing an act of rash ornegligent driving, if aware of a risk that a particularconsequence is likely to result and that result occurs, maybe held guilty not only of the act but also of the result. TheCourt finally observed that each case obviously has to be 11838.25BAdecided on its own facts. In a case where negligence orrashness is the cause of death and nothing more, Section304A may be attracted but where the rash or negligent actis preceded with the knowledge that such act is likely tocause death, Section 304 Part II Indian Penal Code may beattracted and if such a rash and negligent act is preceded byreal intention on the part of the wrong doer to cause death,offence may be punishable under Section 302 Indian PenalCode. 11]Thus, the Hon’ble Supreme Court has held inthe case of rash and negligent act which may couple withthe knowledge may fall within Section 304 Part II of IndianPenal Code. However, the case has to be decided on factsestablished before it. 12]Thus, considering prima-facie facts of this case,the factors which are against the applicant are that theapplicant had consumed alcohol far beyond permissiblelimits and was not holding a driving license and was drivingin excessive speed and the same can be prima facie inferredfrom the fact that the vehicle had fallen otherside of theroad by crossing the divider. However, all the above factswill have to be established in trial. The defence of theapplicant is that the tires of the vehicle had blasted andthere would be a mechanical failure as the same can be seenfrom the statement of eye witness and there is possibility 12838.25BAthat the vehicle may have gone out of control. The factsstated by the prosecution, so also, defence will have to beestablished during the course of trial to ascertain whetherthe applicant’s case may fall within Section 304A [Section106 of BNS] or Section 304 Part II of the IPC [Section 105of BNS]. 13]The investigation in the matter is complete.There are no antecedents against the present applicant. Theapplicant is in custody since last 9 months. The maximumpunishable under Section 105 of the BNS is of 10 years andunder Section 106 of BNS is of 2 years. 14]Considering that the applicant is in jail sincelast 9 months and the investigation in the matter iscomplete, the applicant is granted bail. The application isallowed in the following terms : a]The applicant shall be released on bail inconnection with Crime No.255/2024, registered withWaluj Police Station, Dist. Chatrapati Sambhajinagar,for the offence punishable under Sections 105, 110,324 (5) of the BNS, on furnishing PR bond ofRs.20,000/- with one or two sureties in the likeamount to the satisfaction of the trial Court. 13838.25BAb]The applicant would not drive the vehiclewithout having being granted him valid license duringpendency of the trial. c]The applicant, upon being released on bail,shall not contact the informant, in any mannerwhatsoever, during the pendency of the trial. d]The applicant shall co-operate with the trialCourt and he shall attend each and every date, unlessexempted by the trial Court.e]The applicant shall not tamper with theevidence of the prosecution and he shall not influencethe informant, witnesses and other persons concernedwith the case. f]The applicant, upon being released on bail,shall place on record of the trial Court the details ofhis Contact Number and residential address withupdates in case of any change. 15]Needless to say, in case of violation of any ofthe aforesaid conditions, the bail granted to the applicantshall be liable to be cancelled. It is also clarified that theobservations made in this order are limited to the disposalof the present bail application. The concerned Court shall
Arguments
3838.25BAnot under Section 105 of BNS [Section 304 of IPC]. Thelearned counsel for the applicant has taken me throughAlcohol Examination Certificate issued by the RegionalForensic Science Laboratory and the results of the test of theblood i.e. ‘the blood contained : 0.043 percent w/v of EthylAlcohol (Fourty three milligrams). He further submits thatthe alcohol test does not show that he was driving a carunder the influence of Alcohol. He further submits thatSection 185 of the Motor Vehicles Act, 1988 provides thatwhoever, while driving, or attempting to drive, a motorvehicle, has, in his blood, alcohol exceeding 30 mg. per 100ml. of blood detected in a test by a breath analyser, or inany other test including a laboratory test, shall bepunishable for the offence with imprisonment for a termwhich may extend to six months. He further submits thatthe consumption of alcohol was within limit and in theevent he found beyond limits the same is punishable underSection 185 of the Motor Vehicles Act, 1988. The learnedcounsel pointed out spot panchanama of the vehicle andsubmitted that panchanama shows that three tires of thevehicle were blast. He has also pointed out the statement ofthe eye witness recorded under Section 164 wherein thewitness has stated that “LdkWfiZvkspk cWyUl vkÅV >kY;kus rhfMOgkMjP;k iyhdMs tkÅu fo:/n fn’ksP;k ;s.kk&;k dkjoj vknGyh.”He further submits that the vehicle had gone out of balanceon account of possibility of tire blast, as such, vehicle hadfallen other-side of the road in which unfortunately four
Decision
14838.25BAproceed further in the matter without being influenced bythe observations made hereinabove. 16]The application stands disposed of. [ARUN R. PEDNEKER] JUDGE DDC