Case gets complex, debate is now on nature of offence

That thin, dividing line between knowledge and intention, and between culpable homicide not amounting to murder and murder often diffuses. It is only the facts and circumstances of the case that can determine the difference. But in this case even those facts are elusive as the accused, the witness and the police have differing versions of what really happened that Sunday morning.

A Supreme Court advocate said: “If I am driving my car at 100 km/hr at 2 p.m. through Connaught Place, I have the knowledge that this act could cause someone’s death. However, if I am driving at 200 km/hr at 4 a.m. down the usually deserted Lodhi Road, I wouldn’t even imagine that this act could kill someone. In this case I have neither knowledge nor intention. It is a merely negligent act on my part.”

While the prosecution is gunning for Nanda under Section 304 (culpable homicide not amounting to murder) or even Section 302 (murder) of the Indian Penal Code (IPC), the defence is pressing for the lesser offence of rash and negligent driving.

By refusing to lucidly state which part of Section 304 the offence falls under, the police have not made matters easier. According to the IPC, there is a very fine distinction between Part One and Part Two of Section 304. The former would apply if there is intention to cause death or such bodily injury as is likely to cause death. Part Two would apply if there is only knowledge that the injury is likely to result in death, but there is no intention to cause death.

Senior advocate R.K. Anand said: “Culpable homicide not amounting to murder is a question of knowledge not intention. Different from this is Section 304-A (causing death due to negligence) where you don’t have the knowledge. For example, if I’m driving very fast and my brakes fail and I hit someone, it is negligence.”

Anand also cited the example of the 1984 Bhopal gas tragedy, “The police initially booked the case under Section 304. But the Supreme Court ruled that it was a case under Section 304-A, because after all, you don’t run a factory with intention to kill people. It was a negligent act to store poisonous gases in the factory.”

With the prosecution even considering a murder charge, advocate Indira Jaising said, “You have to take the circumstances of the case into consideration. They probably had full knowledge that their act would cause death. It is not just a simple case of rash and negligent driving. It could either be culpable homicide or murder.”

What about the fact that the boys had been drinking? “Alcohol is no excuse for killing people,” says Jaising. Another advocate says: “They may have been drinking, but if they stopped, got down, saw the damage to the car and then drove off, then it is apparent that they were in their senses and aware of their act. They chose to drive off and leave people to die.”

According to the IPC, in a hit-and-run case — where it cannot be said that the accused intended to inflict the particular fatal injury — the case falls under Section 300 (clause one) (with the intention of causing death) and is punishable under section 304 (part Two).

An advocate said: “There is so much public pressure that everyone is in a hurry to get on with the case. There have been too many contradictions in the case right from the beginning. Both the defence and the prosecution have to get their facts right first. Only then will justice be served".