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Journalism of Courage
Following the death of three UPSC aspirants at Rau’s IAS Study Circle — a coaching centre — in Delhi on July 27, police arrested seven people. Among those arrested was Manoj Kathuria, a 50-year-old businessman. His alleged crime: he drove his SUV on a waterlogged road in front of the centre, causing a wave of water to breach the centre’s entrance. It eventually led to the flooding in the basement, where the aspirants got trapped and died.
Kathuria and others were booked under charges including Sections 105 (culpable homicide not amounting to murder) and 115 (2) (voluntarily causing hurt) of the Bharatiya Nyaya Sanhita (BNS).
During his bail hearing at a Delhi court, Kathuria argued that he could not be blamed for the deaths as he was driving within regulated speed, and there was no restriction of movement on the road. The prosecution, however, said the business could have slowed down his car. On Thursday, the court gave bail to Kathuria. This was after the Delhi police informed the court that they have decided to drop Section 105 BNS against him.
What does the law say? How have the courts ruled in such cases?
Section 105 BNS, prescribes the punishment for culpable homicide that does not amount to murder. The same provision was reflected in Section 304 of the Indian Penal Code.
The jail sentence is graded differently depending on the nature of the homicide. Depending on the gravity of the offence and the category among the above two — with or without intent — the punishment can vary from a minimum of five years in jail or a maximum of life imprisonment.
What is the difference between murder and culpable homicide?
However, the nature of the offence itself is found in IPC Section 300 (BNS Section 101) which defines “murder.”
The section is worded in a way which states that- culpable homicide is murder, subject to exceptions. Therefore, the lesser offence, culpable homicide not amounting to murder, is to be inferred from the exceptions.
The key difference between murder and culpable homicide is this: the absence of mens rea or criminal intent. Simply put, if an accused has the knowledge about the victim being in a particular place at a particular time, with planning, delivers a fatal blow, it amounts to murder.
On the other hand, for example, without pre-meditation, if an accused delivers a fatal blow to the victim in self-defence or any other reason, it would amount to culpable homicide not amounting to murder.
When have people been booked under culpable homicide not amounting to murder?
People are usually booked for culpable homicide not amounting to murder when man-made disasters, overlooking violations, or inactions by authorities lead to deaths. These people are suspected to have a supervisory role or a responsible post, and through their actions the deaths are believed to have been avoided.
The charge has been widely used in various cases ranging from building or bridge collapses, railway accidents, deaths at construction sites or while cleaning septic tanks due to lack of protective gear as well as in drunken driving cases.
While these could be categorised as acts caused due to a negligent act, not necessarily deaths intended by the accused, investigators invoke the more stringent charge of culpable homicide not amounting to murder in these cases. The rationale given by investigators while invoking the section has been that the accused had the knowledge that their act can result in death.
The charge has a stringent punishment of up to life imprisonment.
In recent cases, the charge has been invoked against those allegedly responsible for erecting the large hoarding which fell on a petrol pump causing 17 deaths and injuries to over 80 in Mumbai on May 13. In a fire in Surat in 2019 at a coaching centre, where 22 students died, the section was invoked against the manager and building owners.
What have the courts said?
The argument in such cases by the accused has harped on there being no intent to cause the deaths. The investigators and prosecutors counter this by arguing that the accused have the knowledge that their acts can cause deaths and hence they are liable to be charged for culpable homicide not amounting to murder.
In Mumbai, for instance, in November 2006, seven labourers engaged in construction and repair work in Bandra, were sleeping on a pavement. They were killed after a car being driven by Bandra-resident Alister Pareira, in a drunken state, rammed into them. A sessions court convicted Pareira on the charge of death due to negligence and sentenced him to one month imprisonment.
The Bombay High Court set aside the order and convicted him for the 304 (II) IPC and sentenced him to three years in jail with a fine. The Supreme Court upheld the high court’s order. It said that a man knows the natural and likely consequences of his acts, in this case, driving the car in an intoxicated state. The charge is regularly invoked in cases of drunken driving.
In the case of Uphaar cinema, where 59 moviegoers had died in Delhi in 1997 in a fire, the Association of Victims of Uphaar Tragedy, had sought retrial of the accused under 304 (II). The Supreme Court, however, upheld the negligence charge against the licensee Sushil Ansal and Gopal Ansal.
In many cases, however, involving disasters, the charge under section 304 (II) IPC has been challenging to prove beyond those directly in charge, with courts finding them at best guilty of negligence.
The businessman’s lawyers, in the Delhi coaching class incident, have said that there cannot be any fault of a third-party like him, as he had no knowledge that the students were in the basement where the drowning took place.
