If Ingredients Of A Section Are Obvious Or Implicit In Charge Framed, Conviction Is Not Illegal Even If That Section Was Not Mentioned In The Charge: Kerala HC

The Kerala High Court observed that if Ingredients of a penal provision are obvious or implied in the charge frame, the conviction for the offence can be upheld, even if that specific section was not mentioned in the charge.

The Court dismissed an Appeal challenging the conviction and sentence under Section 304A Indian Penal Code, 1860 (IPC) for rash and negligent driving leading to the death of a bystander. The Court noted that the essential elements of Section 304A IPC were conveyed to the Appellant.

The Court noted that though there might be a deficiency in articulating Section 304A IPC and the phrases 'rashly or negligently' explicitly in the charge, Section 464 of the Criminal Procedure Code, 1973 (CrPC) was applicable in this scenario.

The Bench of Justice PG Ajithkumar observed, “if ingredients of the Section are obvious or implicit in the charge framed, then conviction for that offence can be sustained, irrespective of the fact that said Section has not been mentioned in the charge”.

Advocate S Nirmal Kumar appeared for the Appellant and Senior Public Prosecutor Pushpalatha MK appeared for the State.

An appeal was lodged under Section 374(2) of the CrPC, contesting a conviction and sentence for an offence under Section 304A of the IPC. Initially charged with an offence under Section 304 of the IPC, the appellant refuted the incriminating circumstances in his statement under Section 313(1)(b) of the CrPC, presenting no evidence in his defence.

The Court framed the following issues: “Whether indictment on the two charges, namely, the offence punishable under Section 304 Part II IPC and the offence punishable under Section 338 of the IPC are mutually destructive and legally impermissible?

Whether it is permissible to try and convict a person for the offence punishable under Section 304 Part II of the IPC and the offence punishable under Section 338 of the IPC for a single act of the same transaction?”

The Court, upon examining the arguments, emphasized that concurrent charges under both Section 304 Part II and Section 338 of the IPC are admissible for a single rash or negligent act, as these charges are not mutually exclusive. The Bench noted that an individual engaging in reckless, rash, or negligent acts leading to death, with the knowledge of the potential danger and likelihood of causing death, may be held accountable for homicide not amounting to murder under Section 304 Part II of the IPC.

Simultaneous charges under Section 304 Part II and Section 338 of the IPC were deemed permissible, with no legal hindrance to charging an offender under Section 304 Part II alongside Sections 337 and 338 of the IPC. The Court emphasized that charging an individual with these offences does not prejudice them, provided they are fully informed of the charges to ensure justice.

The Court observed,

“1. Indictment of an accused under Section 304 Part II and Section 338 of the IPC can co-exist in a case of single rash or negligent act. Those two charges are not mutually destructive.

2. A person, responsible for a reckless or rash or negligent act that causes death which he had knowledge as a reasonable man that such act was dangerous enough to lead to some untoward thing and the death was likely to be caused, may be attributed with the knowledge of the consequence and may be fastened with culpability of homicide not amounting to murder and punishable under Section 304 Part II of the IPC.

3. There is no incongruity, if simultaneous with the offence under Section 304 Part II, a person who has done an act so rashly or negligently endangering human life or the personal safety of the others and causes grievous hurt to any person is tried for the offence under Section 338 of the IPC.

4.There is no impediment in law for an offender being charged for the offence under S.304 Part II IPC and also under Sections 337 and 338 of the IPC.

5. By charging a person for the offence under Section 304 Part II and Section 338 of the IPC no prejudice would be caused to him. If the accused is made fully aware of the charges against him, there is no failure of justice”.

Despite the charge not explicitly mentioning Section 304A or the terms "rashly or negligently," the Court observed that the elements of the offence were effectively communicated to the accused. “Therefore, at the best, there is a defect in framing the charge by not specifically stating Section 304 A of the IPC and the word, rashly or negligently. Section 464 of the Code is attracted to the instant case”, the Bench added.

Accordingly, the Court dismissed the Appeal.

Cause Title: Renjith Raj v State (2024/KER/2918)

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