Case Note & Summary
The applicant, Kalpeshbhai Shamatbhai Kavaad, filed a Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, challenging the order dated 10th November 2025 passed by the 2nd Additional District Judge, Keshod, in Sessions Case No.20 of 2024, which rejected his application for discharge under Section 227 CrPC for the offence punishable under Section 308 of the Indian Penal Code, 1860. The case arose from an FIR registered on 25th May 2023 at Mangrol Police Station, Junagadh, under Sections 308, 285, and 114 IPC (corresponding to BNS Sections 110, 287, and 54). The prosecution alleged that the applicant, while driving a dumper, caused it to overturn, resulting in injuries to the complainant. The applicant sought discharge on the ground that the material on record did not prima facie establish the ingredients of Section 308 IPC, which requires intention or knowledge to cause death or such bodily injury as is likely to cause death. The trial court rejected the discharge application, leading to the revision. The High Court examined the facts and the law. It noted that the FIR and the police papers did not contain any allegation that the applicant drove the dumper rashly or negligently, nor was there any evidence that he had the intention or knowledge to cause death. The court observed that the mere fact that the dumper overturned and caused injuries did not, by itself, attract Section 308 IPC. The court emphasized that Section 308 IPC is analogous to attempt to commit culpable homicide and requires a higher degree of mens rea than mere negligence. The court held that the prosecution failed to make out a prima facie case against the applicant for the offence under Section 308 IPC. Consequently, the court allowed the revision application, set aside the impugned order, and discharged the applicant from the offence under Section 308 IPC. The court clarified that the trial court may proceed against the applicant for other offences, if any, in accordance with law.
Headnote
A) Criminal Procedure - Discharge - Section 227 CrPC - Prima Facie Case - The court examined whether the material on record was sufficient to frame charge under Section 308 IPC - Held that the prosecution failed to show any intention or knowledge on part of the applicant to cause death or such bodily injury as is likely to cause death - The incident involved a vehicle accident where the applicant was driving a dumper which overturned, causing injuries to the complainant - No evidence of rash or negligent driving or that the applicant had knowledge that his act was likely to cause death - Discharge granted (Paras 1-7). B) Indian Penal Code - Attempt to Commit Culpable Homicide - Section 308 IPC - Ingredients - The court analyzed the essential ingredients of Section 308 IPC, which requires that the act is done with the intention or knowledge of causing death or such bodily injury as is likely to cause death - Mere rash or negligent act not amounting to culpable homicide is insufficient - The court relied on the principle that Section 308 is analogous to attempt to commit culpable homicide under Section 299 IPC - Held that the prosecution must establish that the act was done with the requisite mens rea - In the absence of any material showing intention or knowledge, no prima facie case exists (Paras 4-6).
Issue of Consideration
Whether the applicant is entitled to discharge under Section 227 of the Code of Criminal Procedure, 1973 for the offence under Section 308 of the Indian Penal Code, 1860, when the material on record does not prima facie establish the ingredients of the offence.
Final Decision
The High Court allowed the revision application, set aside the impugned order dated 10th November 2025 passed by the 2nd Additional District Judge, Keshod, and discharged the applicant from the offence under Section 308 of the Indian Penal Code, 1860. The trial court was directed to proceed against the applicant for other offences, if any, in accordance with law.
Law Points
- Section 308 IPC requires intention or knowledge to cause death or likely fatal injury
- not mere negligence
- Section 308 IPC is analogous to attempt to commit culpable homicide
- Discharge under Section 227 CrPC is warranted when no prima facie case exists
- Burden on prosecution to show prima facie case at framing of charge stage.
