The law is unclear on accidental death. Section 304-A, with 2 years punishment is usually favoured over the harsher 304 (ii) that the actor faced
Yogesh Rajput | May 7, 2015
Everyone and their friends are arguing over how Salman Khan escaped with a lenient 5 years in jail for mowing down a person under his Toyota Landcruiser while drunk. And most argue for a full 10 years punishment for the actor under section 304 (ii) (culpable homicide not amounting to murder) with which he has been charged, among others.
But should he be, charged under the harsher section?
Sample this: In July 2013, an Audi being driven at a speed close to 100 km/h hit a Tavera (cab) on a narrow street, leaving three of its occupants dead and another two injured, in Chandigarh. At that time, I was working with a leading national daily as a reporter. The driver of the Audi, allegedly drunk at the time of the accident, was booked under section 304-A (that provides for maximum two years in jail for causing the death of another person in a negligent act) of the IPC. What followed was a series of protests by family members of the deceased against police for conducting a shoddy probe and the Punjab and Haryana High Court pulling up the Chandigarh police seeking an explanation for not charging the Audi driver with the harsher section 304 (ii).
A senior police officer, who was handling the case, remained adamant on keeping section 304-A. In an informal chat, I asked him the reason for his being so rigid. “Why should I put section 304 (ii)? How is this case any different? If it is so important to use section 304 (ii), then what about all the hundreds of cases I have handled before, wherein section 304-A was used? Would it not be unfair to those cases by treating this one as special?” he said.
One reason why the police often use section 304-A is because it is easier to produce evidence in court to support charges that carry lower punishment. In order to convince the court to give a harsher punishment to an accused, the police need to build a stronger case and work harder on it as well. Given the high number of accidental deaths in India, police is burdened with too many cases.
That, however, can be no excuse for dereliction of duty or pushing for lenient charges where a harsher punishment is deserved.
Section 304-A says a person would be punishable under law if he causes the death of another person, in a negligent act. But how does one define a negligent act and what all acts can be termed as negligent? On the other hand, section 304 (ii) says a person is punishable under law if he kills another person without any motive or intention to do so. But if a person does not have any intention or motive to kill, then doesn’t his act become a negligent one?
Unconvinced with the case officer’s explanation on the application of the two sections, I approached a veteran police officer of Chandigarh. He took the same example, of the Audi-Tavera accident, to make his point. He said any educated person is aware of the fact that drunken and rash driving could put the life of others in jeopardy. “The accused is well aware in advance that his act can take the life of another person, even if he has no intention to do so. So, how does it (his killing of another person) become an act of negligence?” he said.
Oxford dictionary says, ‘negligence’ means ‘breach of a duty of care which results in damage’. Going by this definition, the accused in the Audi-Tavera case did breach his duty to drive a vehicle safely, which, in turn, justifies the usage of section 304-A in the case.
So why was the Salman Khan hit and run case any different from others? The answer is not very clear and can be easily twisted as per one’s convenience. More importantly, a question of greater concern lies in front of the judiciary. Are many convicts being let off too soon, or a few being punished more than they deserve?
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