High Court
Legal Reasoning
8980.25BAaccused doing any negligent act; and(iv) Such a death did not amount to culpablehomicide."15. It is well settled law that Section 304A carves outa specific offence where death is caused by doing arash or negligent act and that act does not amount toculpable homicide under Section 299 or murderunder Section 300 of IPC. It is also well settled thatSection 304A of IPC by its definition totally excludesthe ingredients of Section 299 or Section 300 of IPC.Doing an act with the intent to kill a person orknowledge that doing of an act was likely to cause aperson's death are ingredients of the offence ofculpable homicide.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?"17. 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 300 9980.25BAof 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 ShankarNarayan Bhadolkar v. State of Maharashtra, theSupreme Court defining distinction between Section304A and 304 (Part II) of IPC has held as under: - 10980.25BA"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 ofSections 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 are 11980.25BAessential 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 mensrea, 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 the 12980.25BAdetermining factor."9]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 case of motoraccident in some detail. The Court has observed that if theact is done with the knowledge of the dangerousconsequences which are likely to follow and if death iscaused then not only that the punishment is for the act butalso for the resulting homicide and a case may fall withinSection 299 or Section 300 depending upon the mentalstate of the accused viz., as to whether the act was donewith one kind of knowledge or the other or the intention.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, may 13980.25BAbe held guilty not only of the act but also of the result. TheCourt finally observed that each case obviously has to bedecided 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. 10]Now coming to the facts of the present case, theallegation against the present applicant is that there isillegal flow of electric current in the barbed wire of thecompound of the field of the accused. It is stated that theelectric current was flowing in a day time and that theapplicant had knowledge that the action of the applicantwould cause death of people who may come in contact withthe wire and that the applicant had full knowledge aboutconsequences of his action. 11]The applicant had put the wire to preventanimals from going into his field and there was no intentionof killing any one due to electric current. The case of theapplicant is that the wire was unintentionally andaccidentally remained alive as the applicant had failed to 14980.25BAswitch off the current in the morning. The prosecution willhave to establish its fact to bring about the case withinSection 105 of BNS at the end of trial. 12]The investigation in the matter is nearbycomplete and the applicant is in custody from 29.04.2025,so also, there are no criminal antecedents against thepresent applicant. Considering the said fact, the applicant isgranted bail. The application is allowed in the followingterms : a]The applicant shall be released on bail inconnection with Crime No.I-485/2025, registeredwith Rahuri Police Station, Rahuri, Taluka Rahuri,District Ahmednagar, for the offence punishableunder Section 105 of the Bharatiya Nyaya Sanhita,2023. The date of incident is dated 21.04.2025, onfurnishing PR bond of Rs.20,000/- with one or twosureties in the like amount to the satisfaction of thetrial Court. b]The applicant, upon being released on bail,shall not contact the informant, in any mannerwhatsoever, during the pendency of the trial. c]The applicant shall co-operate with the trialCourt and he shall attend each and every date, unlessexempted by the trial Court. 15980.25BAd]The applicant shall not tamper with theevidence of the prosecution and he shall not influencethe informant, witnesses and other persons concernedwith the case. e]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. 13]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 shallproceed further in the matter without being influenced bythe observations made hereinabove. 14]The application stands disposed of. [ARUN R. PEDNEKER] JUDGE DDC
Arguments
1980.25BAIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADBAIL APPLICATION NO.980 OF 2025WITH Criminal Application No.2160/2025 [for assisting to P.P.]Sandip s/o. Bhimraj Adhav, Age: 39 years, Occup. Agriculture, R/o : At and post Lakh Padhegaon, Tq. Rahuri, District Ahmednagar. .. APPLICANT VERSUS The State of Maharashtra. .. RESPONDENT…Mr.H.U.Dhage, Advocate for the applicant Mr.S.K.Shirse, APP for the respondent-State Mr.S.R.Andhale, Advocate for assist to P.P. …CORAM :ARUN R. PEDNEKER, J.DATE :17.07.2025P.C. : 1]Heard. For the reasons stated in CriminalApplication No.2160/2025 for assisting to the P.P., thesame is allowed. Criminal Application is disposed ofaccordingly. 2]Heard learned counsel for the applicant, thelearned APP for the respondent-State and the learnedcounsel for the assist to P.P. 2980.25BA3]The applicant is seeking bail as he is arrested on29.04.2025 in connection with Crime No.I-485/2025,registered with Rahuri Police Station, Rahuri, TalukaRahuri, District Ahmednagar, for the offence punishableunder Section 105 of the Bharatiya Nyaya Sanhita, 2023.The date of incident is 21.04.2025. The FIR is registered on26.04.2025 and the applicant is arrested on 29.04.2025.The investigation in the matter is complete. The applicanthad filed Bail Application before the Sessions Court and thesame was rejected by order dated 09.04.2025. As such, thepresent application is filed for bail. 4]The case against the present applicant is thatthe agricultural field of the applicant is adjacent to the fieldof the informant. It is alleged that the applicant and otherco-accused had constructed barbwire around the boundariesof their field in which they would pass electric current. It isfurther stated that the informant often mentioned to theapplicant and other accused that due to electric currentsome one may be electrocuted and die but the accused paidno heed. It is alleged that on 21.04.2025, at about 10.00a.m. the informant and his grandfather were watering theirsugarcane crop in their field. At about 11.30 a.m. theinformant’s grandfather went to the lower side of the fieldto see whether the crops were getting water. As thegrandfather did not return back, at about 12.30 p.m. the 3980.25BAinformant went in search of grandfather. Thereafter, theinformant saw that grandfather was entangled in the barbedwire on the field of the accused and was lying thereunconscious. Thereafter, the informant called his uncle andother relatives and switched off the electric current andgrandfather was taken to the Hospital where he wasdeclared dead. As such, FIR is registered against the presentapplicant for the above offences. 5]The learned counsel for the applicant submitsthat considering the allegation in the FIR, Section 105 ofthe BNS should not be invoked against the presentapplicant. At best the prosecution case would fall underSection 106 of the BNS. He further submits that theapplicant had constructed the barbed wire in the lowersideof his field and not in the bandh [embankment] used by thepeople. He further submits that when the grandfather of theinformant went down to see the water level, he came incontact with the barbed wire and got electric current. Hefurther submits that the investigation in the matter iscomplete and the applicant is in custody from 29.04.2025.Considering the said fact, the bail should be granted infavour of the applicant. 6]Per contra, the learned APP, so also, the learnedcounsel for the assist to P.P. submit that the informant hadfrequently mentioned to the applicant that due to electric 4980.25BAcurrent some one may die, but they did not listen andcontinued to pass electric current in the barbed wire andtherefore the applicant had knowledge that his act ofpassing live electric current in the field would lead to deathof people, as such, the FIR is lodged against the presentapplicant invoking section 105 of BNS. They further submitthat the punishment under Section 105 of BNS is of 10years and the applicant is directly involved in the allegedcrime. Considering the said fact, the bail should not begranted in favour of the applicant. 7]Heard the learned counsel for the parties. TheHon’ble Supreme Court in the case of State of Rajasthan Vs.Chhittarmal reported in [2007] 10 SCC 792 relates to fixinglife naked electricity wire in the field. The Hon’ble SupremeCourt had upheld the judgment of the High Court where theHigh Court had altered the conviction of the accused fromSection 302 to Section 304-A of the IPC. The SupremeCourt had observed thus : 8.Learned counsel for the respondent-accusedsupported judgment of the High Court.9."18. Coming to the plea of the applicability ofSection 304-A, it is to be noted that the said provisionrelates to death caused by negligence. Section 304-Aapplies to cases where there is no intention to causedeath and no knowledge that the act done in allprobability will cause death. The provision relates tooffences outside the range of Sections 299 and 300 5980.25BAIPC. It applies only to such acts which are rash andnegligent and are directly the cause of death ofanother person. Rashness and negligence are essentialelements under Section 304-A. It carves out a specifica offence where death is caused by doing a rash ornegligent act and that act does not amount toculpable homicide under Section 299 or murder inSection 300 IPC. Doing an act with the intent to kill aperson or knowledge that doing an act was likely tocause a person's death is culpable homicide. When theintent or knowledge is the direct motivating force ofthe act, Section 304-A IPC has to make room for thegraver and more serious charge of culpable homicide.19. In order to be encompassed by theprotection under Section 304-A there should beneither intention nor knowledge to cause death.When any of these two elements is found to bepresent, Section 304-A has no application."10. It is to be noted that the defence of the accusedwas that to prevent wild animals from going into hisfield he had put the wire. It is to be noted that thecase rested on circumstantial evidence and thecircumstances highlighted were as follows:"(1) enmity with the deceased; (2) presence ofthe accused when Sua Lal raised alarm after seeingthe dead body of Ram Kumar and Murlidhar; (3) theaccused removed the electric wire from the electricpole in presence of Sua Lal; (4) the accused tried toremove the wire from the place of occurrence but hewas prevented to do so by the neighbours whoassembled by that time; and (5) extra-judicialconfession."11. The High Court found that the so-called judicialconfession was not established while the other aspectswere clearly established. The probability of the 6980.25BAdefence version is borne out from several factors;firstly two poles were placed to which wire wasfastened. In fact this aspect has been clearly takennote of by the trial court but it was concluded thatmerely because the wooden poles were there that didnot establish the defence plea that the same wereintended to keep wild animals away. The High Courtfound that the prosecution itself accepted that twosticks were fixed. There was also seizure of thewooden sticks which aspect was also accepted by thetrial court.12. In view of the analysis made by the HighCourt, the inevitable conclusion is that prosecutionhas not been able to establish the accusation underSection 302 IPC and the High Court rightly convictedthe accused under Section 304-A IPC.The above observation of the High Court hasbeen upheld by the Hon’ble Supreme Court.8]The Division Bench of Chhattisgarh in the caseof Bhuneshwar Nishad and another Vs. State ofChhattisgarh reported in 2023 SCC ONLine Chh 5784 hasnoted various judgments of the Supreme Court dealing withthe issue of applicability of Section 304 and 304A of the IPCcorresponding to Section 105 and 106 of the BNS at paranos.12 to 20, as under : 12. In the matter of Juggankhan v. The State ofMadhya Pradesh, the Supreme Court has held themedical practitioner guilty under Section 304A of IPC,when he administered poisonous medicine to patientwithout studying its effect, observed as under:- 7980.25BA"12. The appellant was charged in thealternative under s. 304A. The learned counsel for theappellant urges that the ingredients of s. 304A havenot been established inasmuch as it was not a rash ornegligent act. We are unable to accept this contention.Stramonium and a dhatura leaf are poisonous. Theappellant was registered as a Homoeopath, and inHomoeopathy a dhatura leaf is never administered assuch. This much he admits himself. According to theevidence on the record, in no system of medicine,except perhaps in the Ayurvedic system, the dhaturaleaf is given as cure for guinea worms. It seems thatthe appellant prescribed the medicine withoutthoroughly studying what would be the effect ofgiving 24 drops of stramonium and a leaf of dhatura.It is a rash and negligent act to prescribe poisonousmedicines without studying their probable effect..."13. In order to decide the plea raised at the bar, itwould be profitable to notice Section 304A of IPC,which states as under:-"304A. Causing death by negligence.-Whoevercauses the death of any person by doing any rash ornegligent act not amounting to culpable homicide,shall be punished with imprisonment of eitherdescription for a term which may extend to two years,or with fine, or with both."14. The following are the ingredients of Section 304Aof IPC:-"(i) That the accused caused the death of anyperson;(ii) That such death was caused by the accuseddoing any rash act;or(iii) That such death was caused by the