# \ • STATE OF GUJARAT v. HAIDARALI KALUBHAI

- **Citation:** [1976] 3 S.C.R. 303
- **Court:** Supreme Court of India
- **Decided:** 1976-02-03
- **Case number:** Criminal Appeal No. 188 of 1971
- **Bench:** P. K. Goswami, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-gujarat-v-haidarali-kalubhai-6783
- **Pages:** 5

## Headnote

303
Indian Penal Code-Section 304A-lngredients of-Loss of control over
the speeding truck causing the fatal injury falls under s. 304A.
On August 23, 1969, the respondent accused came in a tractor and stopped
it on the highway.
Seeing the parked truck GTF 904 which he used to drive
previously, the accused used the key of his tractor to start the same and drove
it with the head lights on in full speed, The conductor of the truck owner
\Vas also in the tractor at that time. The tractor while being driven by the
field and while he was trying to turn towards the kutcha road, hit against the
cot in which the village Sarpanch who was resting on it and talking with three
policemen.
The policemen jumped from the cot and sustained injuries, while
the Sarpanch who was thrown away by the impact of the tractor to a distance
·of about ten feet from the cot, had grievous injuries to \Vhich he succumbed
later. Since there was enmity between the deeeased and the accused over
the Panchayat elections, the prosecution put up a case of deliberate and v.·ilful
driving of the vehicle towards the cot with the intention of causing death of
the deceased Sarpanch. The Sessions Judge convicted the accused (i) under
s. 304 Part II, J.P.C. for causing the death of the Sarpanch and (ii) under
s. 326 and 323. LP .C. for causing injuries to the two other persons and
sentenced him for rigorous imprisonment for seven years and two years respec·
tively for the said offences.
On appeal to the High Couff, the conviction
was altered to one under s. 304A only and the respondent was sentenced to
rigorous imprisotHnent for 18 months and to a fine of Rs. 500/ ..
Dismissing the State's appeal by special leave, the Court,
HELD : ( 1) Section 304A 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 s. 299, I.P.C. or murder under s. 300 I.P.C.
Each
case Will depend on the particular facts established against the accused.
[305A-BJ
(2) Section 304A, by its own definition totally excludes the ingredients of
s. 299 or s. 300, I.P.C. Doing an act with the intent to kill a person or
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knowledge that doing of an act is likely to cause a person's death are ingredients
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of the offence of culpable homicide. When intent or knowledge is the direct
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motivating force of the act complained of, s. 304A has to make room for the
graver and more serious charge of culpable homicide.
[306 GH, 307AJ
(3) In the instant case, the tangential track of the speeding truck coming
in contact with the corner of the steel cot throwing it _over the wooden cot
and thereby throwing the deceased out of it resulting in fatal injuries. would
not reveal the accused's intention or any deliberate act with the requisite knowledge for an offence of culpable homicide. The facts and circumstances dis·
closed in this case fit in more reasonably v.1ith the theory of loss of control
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by the accused of the vehicle in high speed trying to take a turn for the
kutcha road. The case falls under s. 304A, l.P.C. and not under 3. 304
Part II, l.P.C. [307-A-C]

## Text

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•
STATE OF GUJARAT
v.
HAIDARALI KALUBHAI
February 3, 1976
[P. K. GOSWAMI AND P. N. SHINGHAL, JJ.J
303
Indian Penal Code-Section 304A-lngredients of-Loss of control over
the speeding truck causing the fatal injury falls under s. 304A.
On August 23, 1969, the respondent accused came in a tractor and stopped
it on the highway.
Seeing the parked truck GTF 904 which he used to drive
previously, the accused used the key of his tractor to start the same and drove
it with the head lights on in full speed, The conductor of the truck owner
\Vas also in the tractor at that time. The tractor while being driven by the
field and while he was trying to turn towards the kutcha road, hit against the
cot in which the village Sarpanch who was resting on it and talking with three
policemen.
The policemen jumped from the cot and sustained injuries, while
the Sarpanch who was thrown away by the impact of the tractor to a distance
·of about ten feet from the cot, had grievous injuries to \Vhich he succumbed
later. Since there was enmity between the deeeased and the accused over
the Panchayat elections, the prosecution put up a case of deliberate and v.·ilful
driving of the vehicle towards the cot with the intention of causing death of
the deceased Sarpanch. The Sessions Judge convicted the accused (i) under
s. 304 Part II, J.P.C. for causing the death of the Sarpanch and (ii) under
s. 326 and 323. LP .C. for causing injuries to the two other persons and
sentenced him for rigorous imprisonment for seven years and two years respec·
tively for the said offences.
On appeal to the High Couff, the conviction
was altered to one under s. 304A only and the respondent was sentenced to
rigorous imprisotHnent for 18 months and to a fine of Rs. 500/ ..
Dismissing the State's appeal by special leave, the Court,
HELD : ( 1) Section 304A 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 s. 299, I.P.C. or murder under s. 300 I.P.C.
Each
case Will depend on the particular facts established against the accused.
[305A-BJ
(2) Section 304A, by its own definition totally excludes the ingredients of
s. 299 or s. 300, I.P.C. Doing an act with the intent to kill a person or
A
B
c
D
E
knowledge that doing of an act is likely to cause a person's death are ingredients
\
of the offence of culpable homicide. When intent or knowledge is the direct
F
motivating force of the act complained of, s. 304A has to make room for the
graver and more serious charge of culpable homicide.
[306 GH, 307AJ
(3) In the instant case, the tangential track of the speeding truck coming
in contact with the corner of the steel cot throwing it _over the wooden cot
and thereby throwing the deceased out of it resulting in fatal injuries. would
not reveal the accused's intention or any deliberate act with the requisite knowledge for an offence of culpable homicide. The facts and circumstances dis·
closed in this case fit in more reasonably v.1ith the theory of loss of control
G
by the accused of the vehicle in high speed trying to take a turn for the
kutcha road. The case falls under s. 304A, l.P.C. and not under 3. 304
Part II, l.P.C. [307-A-C]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 188 of
1971.
Appeal by special leave from the judgment and order dated the
29-9-1970 of the Gujarat High Court in Criminal Appeal No. 410
of 1970.
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304
SUPREME COURT REPORTS
[1976] 3 s.c.R.
D. Mookherjee, S. K. Dholakia and M. N. Shroff, for the appellant.
K. J. Shethna and Vimal Dave and Miss Kai/ash Mehta, for the
respondent.
The Judgment of the Court was delivered by
GOSWAMI, J .-The accused Haidarali Kalubhai was convicted by
the Sessions Judge, Mehsana, under section 304 Part II, Indian Penal
Code, and was sentenced to rigorous imprisonment for seven years for
causing death of Mahomadali Kasamali. He was also convicted under
sections 326 and 323 I.P.C. and s·ontenced to rigorous imprisonment
for two years and to three months respectively in connection with
injuries to two other persons.
On appeal to the High Court conviction was altered to one under section 304 A.l.P .C. only and the accused
was sentenced to rigorous imprisonment for eighteen months and to a
fine of Rs. 500/-, in default rigorous imprisonment for six months.
Briefly the facts are as follows :-
It was usual for the deceased Mahomadali Kasamali, who was the
sarpanch of village Nandasan, to spend some hours of the night from
8.00 P.M. to 11.P.M. near the Hotel Shanker Vijay which is situated
by the side of the highway from Mehsana to Ahmedabad.
There is a
big open space in front of the hotel towards the north and a kutcha.
road branches off from the highway towards Dangarwa.
This kutcha
road is almost in the centre of the open space in front of the hote•:
measuring about 80 feet.
It is said that the portion immediately ir:
front of the hotel is about two feet higher in elevation from the kutch<.
road.
On August 23,
1969, the accused came in a tractor
anc!'.
stopped the same on the highway. He saw truck No. G.T.F. 904 which
was parked opposite to the aforesaid hotd of Vasudev (P.W. 7). The
owner of the truck had gone to the village leaving his conductor
Usman Imamali (P.W. 11) in the truck. It is said that the accused used
to drive this truck earlier with permission of the truck-owner. Thi5
time he used the key of his tractor to start the truck and he drove
the same by the open field in front of the hotel.
He drove the truck
with the head lights on in full speed straight on the steel cot on which
the deceased was resting with the result that the truck dashed against
\he cot and the deceased was thrown away to a distance of about tea
feet from the cot.
Head Constable Revajit (PW 3) was sitting on the
same cot with the deceased and he was also thrown away.
There was
another wooden cot nearby where Constable Dalpat Singh (PW 4)
and Vavdinmiya (PW 5) were sitting.
The Head Constable with the
other Constable came to meet the Sarpanch in connection with the
investigation of a certain case.
Since there was enmity between the
accused and the deceased on account of Panchayat elections the prosecution case is that the accused wilfully and deliberately drove the
vehicle towards the cot with the intention of causing death to the
deceased Sarpanch.
The accused was originally charged under secticn
302 IPC and under section 326 and 323 JPC with the result mentioned above. Hence this appeal by the State by special leave against the
judgment of the High Court.
.
The question that arises for consideration is whether the facts that
are established against the accused fulfil the ingredients of section 304
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GUJARAT v. HAIDARALI (Goswami, J.)
305
Part Il as submitted by Mr. Debabrata Mukherjee on behalf of the
State. According to the learned counsel this is a clear case under
section 304 Part II and conviction under section 304A is unsustainable.
Section 304A 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 nnder section 300 IPC.
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.
Each case will, therefore, depend upon the particular facts established
against the accused,
The prosecution in this case wanted to establish a motive for
committing the
offence against
the Sarpanch. It was sought to be
estabished 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.
The following facts are established. The accused drove the truck at
great speed with lights on. He had the conductor with him in the truck.
Some time before driving the truck the accused had seen the
Constables talking with the Sarpanch at the spot in question. There is
no evidence that the accused had a
licence to drive the truck. It,
however, appears from Ext. 70, which is a complaint in criminal case
No. 160 of 1969 dated January 17, 1969 that the accused "had no
licenc-e.... . while driving his truck No. GTF 704."
While the two
Constables jumped from the cot and escaped the deceased could not
do so in spite of being alerted by the Head Constable as he was iu
a lying posture on the cot.
It appears from the map of the scene
Ext. 9 that the truck while being driven by the field was trying to turn
towards the kutcha road at a point near the cot shown in the map.
This would go to show that the
accused
was unable to control
t)le vehicle in high speed while taking a turn to get into the kutcha road
from the open field and in this process hit the cot throwing the deceased
out of the cot by the impact resulting in injuries which ultimately led
to his death.
Even the Constables, who jumped from the cot, received
injuries.
There was no direct impact of the persons with the vehicle
in speed.
The accused in his statement under section 342, Criminal Procedure
Code, stated as follows :-
"I took the truck in reverse first and as there were other trucks
lying round about, I took out my truck from the available way.
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306
SUPREME COURT REPORTS
[1976] 3 S.C.R.
The accilator (sic) stuck down and hence the truck went in full
speed and did not remain in control. One truck was coming from
opposite side with full light. While driving with (sic) this way,
I heard some noise, and the conductor Usman told ·me that the
truck had struck with something then I heard some shouts and
realised that some persons were injured but I did not stop the
truck through fear of assault ........ truck through fear of
assault .......... I presented myself at the Police Station".
Now this version is sup_ported by Usman (PW 11) who, however,
has been declared hostile by the prosecution.
He was cross-examined
by the prosecution in order to show that he made a wrong statement in
the examination-in-chief when he stated that the accused drove the
truck with the key of the truck whereas he had stated before the
police that the accused came on his tractor and started the truck with
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his key. He was also cross-examined about a truck coming from the
opposite side with full light that he had not stated to the police to that
-...
effect.
We do not think that the omission to mention before the police
about another truck coming from the opposite direction can be
a contradiction within the meaning of section 162, Criminal
Procedure Code.
We also do not give much importance as to whether
the accused drove the truck with his key or with the key of the
tractor.
That has not much relevance in view of the fact that the
accused
admitted to
have
driven
the
truck. Besides,
it
is
admitted
by
the
prosecution
witnesses (PWs'
2 and
6) that
the
conductor (PW 11) was in the truck when the accused
drove the same. PWl 1 is, therefore, a natural witness and we do
not find any reason to disbelieve him when he stated that a truck was
coming from the opposite direction with full lights on.
Besides, the
owner of the truck having not found the truck in the place where he
had parked had already telephoned to the Police Station about someone taking away the truck. PWll, who is an employee of the truckowner, was, therefore, not even obliged to speak in favour of the
accused. The facts disclosed in the prosecution evidence, therefore, do
not make out a case of any wilful or deliberate act on the part of
the accused in order to cause the death of the Sarpanch by driving
the truck in the way he did.
Besides, the presence of the Head
Constable and another Constable with the deceased whom the accused
had himself seen prior to his driving the truck would run counter to a
theory of wilful and deliberate act on the part of the accused to cause
the death not only of the Sarpanch but necessarily also of the .
Constables.
Section 304A 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 p·~rsou's
death are iagredients 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
)
GUJARAT v. HA!DARALI (Goswami, J.)
30 7
and more serious charge of culpable homicide.
Does this happen in
A
this case?
The tangential track of the speeding truck coming in contact with
the corner of the steel cot throwing it over the wooden cot and thereby
throwing the deceased out of it resulting in fatal injuries would
not
reveal the accused intention or any deliberate act with the requisite
knowledge for an offence qf culpable homicide.
The facts
and
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circumstances disclosed in this case fit in more reasonably with the
theory of loss of control by the accused of the vehicle in high speed
trying to take a turn for the kutcha road.
There
is, therefore, no error committed by the High Court in
holding that the falls under section 304A IPC and not under 304 ·
Part II IPC.
The appeal is accordingly dismissed.
c .
S.R.
Appeal dismissed.