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do not justify benefit of probation to the appellant for good conduct or for any reduction of sentence.=On the South-North Road at the East side of Carter Road, Bandra (West), Mumbai in the early hours of November 12, 2006 between 3.45 – 4.00 a.m., a car ran into the pavement killing seven persons and causing injuries to eight persons. The appellant – Alister

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REPORTABLE

 

 

IN THE SUPREME COURT OF INDIA

 

CRIMINAL APPELLATE JURISDICTION

 

CRIMINAL APPEAL NOS. 1318-1320 OF 2007

 
Alister Anthony Pareira …Appellant

 

Versus

 

State of Maharashtra …Respondent

 

 

JUDGEMENT

 
R.M. LODHA, J.

 

 

On the South-North Road at the East side of

 

Carter Road, Bandra (West), Mumbai in the early hours

 

of November 12, 2006 between 3.45 – 4.00 a.m., a car

 

ran into the pavement killing seven persons and

 

causing injuries to eight persons. The appellant – Alister
Anthony Pareira – was at the wheels. He has been

 

convicted by the High Court for the offences punishable

 

under Sections 304 Part II, 338 and 337 of the Indian

 

Penal Code, 1860 (IPC).

 

2. The prosecution case against the appellant is

 

this: the repair and construction work of the Carter

 

Road, Bandra (West) at the relevant time was being

 

carried out by New India Construction Company. The

 

labourers were engaged by the construction company for

 

executing the works. The temporary sheds (huts) were

 

put up for the residence of labourers on the pavement.

 

In the night of November 11, 2006 and November 12,

 

2006, the labourers were asleep in front of their huts on

 

the pavement. Between 3.45 to 4.00 a.m., that night,

 

the appellant while driving the car (corolla) bearing

 

Registration No. MH-01-R-580 rashly and negligently

 

with knowledge that people were asleep on footpath

 

rammed the car over the pavement; caused death of

 

seven persons and injuries to eight persons. At the time

 
2
of incident, the appellant was found to have consumed

 

alcohol. A liquor bottle was recovered from the

 

appellant’s car. On his medical examination, he was

 

found to have 0.112% w/v liquor (ethyl alcohol) in his

 

blood. The appellant was fully familiar with the area

 

being the resident of Carter Road.

 

3. The contractor–Panchanadan Paramalai

 

Harijan (PW-2) – who had engaged the labourers and

 

witnessed the incident reported the matter immediately

 

to the Khar Police Station. His statement (Ex. 13) was

 

recorded and based on that a first information report

 

(No. 838) was registered under Section 304, 279, 336,

 

337, 338 and 427 IPC; Section 185 of the Motor

 

Vehicles Act, 1988 and Section 66 (1)(b) of Bombay

 

Prohibition Act, 1949.

 

4. On completion of investigation, the charge

 

sheet was submitted against the appellant by the

 

Investigating Officer in the court of Magistrate having

 

jurisdiction. The appellant was committed to the Court

 
3
of Sessions and was tried by 2nd Adhoc Additional

 

Sessions Judge, Sewree, Mumbai.

 

5. The indictment of the appellant was on two

 

charges. The two charges read:-

 

 

“(i) that on November 12, 2006 between 3.45 to

4.00 a.m. you have driven the car bearing No.

MH-01-R-580 rashly and negligently with

knowledge that people are sleeping on footpath

and likely to cause death of those persons

slept over footpath and thereby caused the

death of seven persons who were sleeping on

footpath on Carter Road and thereby

committed an offence punishable under

Section 304 Part II IPC.

 
(ii) on above date, time and place you have driven

the vehicle in rashly and negligent manner and

thereby caused grievous injury to seven

persons who were sleeping on footpath and

thereby committed an offence punishable

under Section 338 IPC.”

 

 

6. The prosecution, to prove the above charges

 

against the appellant, tendered oral as well as

 

documentary evidence. In all, 18 witnesses, namely,

 

Dr. Nitin Vishnu Barve (PW-1), Panchanadan Paramalai

 
4
Harijan (PW-2), Ramchandra Chakrawarti (PW-3), Pindi

 

Ramu (PW-4), Sriniwas Raman Pindi (PW-5), Smt.

 

Mariamma Shingamana (PW-6), Smt. Prema Chingaram

 

(PW-7), Jagan Singaram (PW-8), Sigamani Shankar Pani

 

(PW-9), Mallikarjun Bajappa Motermallappa (PW-10),

 

J.C. Cell Mendosa (PW-11), Praveen Sajjan Mohite (PW-

 

12), Limbaji Samadhan Ingle (PW-13), Dr. Sharad

 

Maniklal Ruia (PW-14), Rajendra Nilkanth Sawant (PW-

 

15), Basraj Sanjeev Mehetri (PW-16), Meenakshi Anant

 

Gondapatil (PW-17) and Somnath Baburam Phulsunder

 

(PW-18) were examined. The complaint, spot panchnama

 

along with sketch map, C.A. Reports and other

 

documents were also proved.

 
7. The statement of the appellant under Section

 

313 of the Criminal Procedure Code, 1973 (for short, `the

 

Code’) was recorded. He admitted that he was driving

 

the car no. MH-01-R-580 at the relevant time and the

 

accident did occur but his explanation was that it

 

happened on account of failure of engine and
5
mechanical defect in the car and there was no negligence

 

or rashness on his part.

 

8. The 2nd Adhoc Additional Sessions Judge,

 

Sewree, Mumbai, on April 13, 2007 convicted the

 

appellant for the offences punishable under Sections

 

304A and 337 IPC. The court sentenced him to suffer

 

simple imprisonment of six months with fine of Rs. 5

 

lakhs for the offence under Section 304A IPC and in

 

default further suffer simple imprisonment of one month

 

and simple imprisonment of 15 days for the offence

 

under Section 337 IPC. Both the sentences were ordered

 

to run concurrently.

 

9. On April 19, 2007, the Bombay High Court

 

took suo motu cognizance of the judgment and order

 

dated April 13, 2007 passed by the 2nd Adhoc Additional

 

Sessions Judge, Sewree and issued notice to the State of

 

Maharashtra, the appellant and to the heirs of the

 

deceased and also to the injured persons.

 

 

6
10. The State of Maharashtra preferred criminal

 

appeal (No. 566 of 2007) under Section 378(3) of the

 

Code challenging the acquittal of the appellant under

 

Sections 304 Part II and 338 IPC. Another criminal

 

appeal (No. 430 of 2007) was also preferred by the State

 

of Maharashtra seeking enhancement of sentence

 

awarded to the appellant for the offence under Section

 

304A and Section 337 IPC by the trial court.

 

11. The appellant also preferred criminal appeal

 

(No. 475/2007) for setting aside the judgment and order

 

dated April 13, 2007 passed by the trial court convicting

 

him under Section 304A and Section 337 IPC and the

 

sentence awarded to him by the trial court.

 

12. All these matters were heard together by the

 

High Court and have been disposed of by the common

 

judgment on September 6, 2007. The High Court set

 

aside the acquittal of the appellant under Section 304

 

IPC and convicted him for the offences under Section

 

304 Part II, Section 338 and Section 337 IPC. The High

 
7
Court sentenced the appellant to undergo rigorous

 

imprisonment for three years for the offence punishable

 

under Section 304 Part II IPC with a fine of Rs. 5 lakhs.

 

On account of offence under Section 338 IPC, the

 

appellant was sentenced to undergo rigorous

 

imprisonment for a term of one year and for the offence

 

under Section 337 IPC rigorous imprisonment for six

 

months. The High Court noted that fine amount as per

 

the order of the trial court had already been distributed

 

to the families of victims.

 

13. It is from the above judgment of the High

 

Court that the present appeals have been preferred by

 

the appellant.

 

14. A great deal of argument in the hearing of the

 

appeals turned on the indictment of the appellant on the

 

two charges, namely, the offence punishable under

 

Section 304 Part II IPC and the offence punishable under

 

Section 338 IPC and his conviction for the above offences

 

and also under Section 337 IPC. Mr. U.U. Lalit, learned

 
8
senior counsel for the appellant argued that this was

 

legally impermissible as the charges under Section 304

 

Part II IPC and Section 338 IPC were mutually

 

destructive and the two charges under these Sections

 

cannot co-exist. His submission was that the appellant

 

was charged for the above offences for committing a

 

single act i.e., rash or negligent for causing injuries to

 

eight persons and at the same time committed with

 

knowledge resulting in death of seven persons which is

 

irreconcilable and moreover that has caused grave

 

prejudice to the appellant resulting in failure of justice.

 

15. Mr. U.U. Lalit, learned senior counsel also

 

argued that no question was put to the appellant in his

 

statement under Section 313 of the Code about his

 

drunken condition or that he was under the influence of

 

alcohol and, thus, had knowledge that his act was likely

 

to result in causing death. CA Report (Ex. 49) that blood

 

and urine of the appellant had alcohol content and the

 

evidence of PW-1 that he found the appellant in drunken

 
9
condition and his blood sample was taken were also not

 

put to the appellant. These incriminating evidences,

 

learned senior counsel submitted, cannot form basis of

 

conviction. The conclusion arrived at by the Investigating

 

Officers (PW-17 and PW-18) regarding drunken condition

 

of the appellant which was put to the appellant in his

 

statement under Section 313 of the Code was of no legal

 

use. Moreover, PW-17 and PW-18 have not deposed

 

before the court that the appellant was found in drunken

 

condition much less under the influence of liquor.

 

Learned senior counsel would thus submit that the sole

 

basis of the appellant’s conviction under Section 304

 

Part-II IPC that the appellant had knowledge that his

 

reckless and negligent driving in a drunken condition

 

could result in serious consequences of causing a fatal

 

accident cannot be held to have been established. In this

 

regard, learned senior counsel relied upon two decisions

 

of this Court, namely, (i) Ghulam Din Buch & Ors. v. State

 

of J & K1 and (ii) Kuldip Singh & Ors. v. State of Delhi2.

1 1996 (9) SCC 239

2 2003 (12) SCC 528

10
16. Mr. U.U. Lalit vehemently contended that no

 

charge was framed that the appellant had consumed

 

alcohol. Moreover, he submited that no reliance could

 

be placed on C.A. Report (Ex. 49) as the evidence does

 

not satisfactorily establish that the samples were kept in

 

safe custody until they reached the CFSL. Moreover, no

 

charge was framed by the court against the appellant

 

under Section 185 of the Motor Vehicles Act, 1988 and

 

Section 66(1)(b) of the Bombay Prohibition Act, 1949.

 

17. Learned senior counsel argued that

 

appellant’s conviction under Section 304A, 338 and 337

 

IPC was not legally sustainable for more than one reason.

 

First, no charge under Section 304A IPC was framed

 

against the appellant as he was charged only under

 

Section 304 Part II IPC and Section 338 IPC which are

 

not the offences of the same category. In the absence of

 

charge under Section 304A IPC, the appellant cannot be

 

convicted for the said offence being not a minor offence of

 

Section 304 Part II IPC. The charge under Section 338

 
11
IPC does not help the prosecution as by virtue of that

 

charge the appellant cannot be convicted under Section

 

304A IPC being graver offence than Section 338 IPC.

 

Secondly, the accident had occurred not on account of

 

rash or negligent act of the appellant but on account of

 

failure of the engine. He referred to the evidence of

 

Rajendra Nilkanth Sawant (PW-15) who deposed that he

 

could not state if the accident took place due to

 

dislodging of right side wheel and dislodging of the engine

 

from the foundation. In the absence of any firm opinion

 

by an expert as regards the cause of accident, the

 

possibility of the accident having occurred on account of

 

mechanical failure cannot be ruled out. Thirdly, in the

 

absence of medical certificate that the persons injured

 

received grievous injuries, charge under Section 338 IPC

 

was not established.

 

18. Learned senior counsel lastly submitted that

 

in case the charges against appellant are held to be

 

proved, having regard to the facts, namely, the age of the

 
12
appellant at the time of the accident; the appellant being

 

the only member to support his family – mother and

 

unmarried sister – having lost his father during the

 

pendency of the present appeals; the fine and

 

compensation of Rs. 8.5 lakhs having been paid and the

 

sentence of two months already undergone, the

 

appellant may be released on probation of good conduct

 

and behavior or, in the alternative, the sentence may be

 

reduced to the period already undergone by the

 

appellant.

 

19. On the other hand, Mr. Sanjay Kharde,

 

learned counsel for the State of Maharashtra stoutly

 

defended the judgment of the High Court. He argued

 

that the fact that labourers were asleep on the footpath

 

has gone unchallenged by the defence. He would submit

 

that the drunken condition of the appellant is fully

 

proved by the evidence of PW-1. Further, PW-1 has not

 

at all been cross-examined on this aspect. The recovery of

 

liquor bottle is proved by the evidence of spot panchas

 
13
(PW-11 and PW-16). They have not been cross examined

 

in this regard. PW-17 collected blood sample of the

 

appellant from PW-1 and then PW-18 forwarded the

 

blood sample to the chemical analyzer along with the

 

forwarding letter. The appellant has not challenged C.A.

 

Report (Ex. 49) in the cross-examination of PW-18.

 

20. Learned counsel for the State submitted that

 

the involvement of the appellant in the incident has been

 

fully established by the evidence of PW-13 who was an

 

eye-witness and working as a watchman at construction

 

site. Moreover, the appellant was apprehended

 

immediately after the incident. There is no denial by the

 

appellant about occurrence of the accident. The defence

 

of the appellant was that the accident happened due to

 

engine and mechanical failure but the appellant has

 

failed to probablise his defence. He referred to the

 

evidence of PW-15 – motor vehicle inspector – to show

 

that the brake and the gear of the car were operative.

 

 

14
21. Learned counsel for the State referred to the

 

evidence of injured witnesses and also the evidence of

 

PW-12 and PW-14 who issued medical certificates and

 

submitted that the prosecution has established beyond

 

reasonable doubt that the knowledge was attributable to

 

the accused as he was driving the car in a drunken

 

condition at a high speed. The accused had the

 

knowledge, as he was resident of the same area, that the

 

labourers sleep at the place of occurrence. Learned

 

counsel submitted that the evidence on record and the

 

attendant circumstances justify attributability of actual

 

knowledge to the appellant and the High Court rightly

 

held so. In this regard, the learned counsel for the State

 

placed reliance upon two decisions of this Court in Jai

 

Prakash v. State (Delhi Administration)3 and Joti Parshad

 

v. State of Haryana4. He disputed that there was any

 

error in the framing of charge. He would contend that in

 

any case an error or omission in framing of charge or

 

irregularity in the charge does not invalidate the

3 1991 (2) SCC 32

4 1993 Supp (2) SCC 497

15
conviction of an accused. The omission about the

 

drunken condition of the accused in the charge at best

 

can be said to be an irregularity but that does not affect

 

the conviction. In this regard, he relied upon Section 464

 

of the Code and the decisions of this Court in Willie

 

(William) Slaney v. State of Madhya Pradesh5, Dalbir

 

Singh v. State of U.P.6 and Annareddy Sambasiva Reddy

 

and others v. State of Andhra Pradesh7.

 

22. Mr. Sanjay Kharde submitted that by not

 

putting C.A. Report (Ex. 49) to the appellant in his

 

statement under Section 313 of the Code, no prejudice

 

has been caused to him as he admitted in his statement

 

under Section 313 of the Code that he was fully aware

 

about the statement of the witnesses and exhibits on

 

record. In this regard, learned counsel relied upon

 

decision of this Court in Shivaji Sahabrao Bobade and

 

another v. State of Maharashtra8 .

 

 

5 AIR 1956 SC 116

6 2004 (5) SCC 334

7 2009 (12) SCC 546

8 1973 (2) SCC 793

16
23. Lastly, learned counsel for the State submitted

 

that the circumstances pointed out by the learned senior

 

counsel for the appellant do not justify the benefit of

 

probation to the appellant or reduction of the sentence

 

to the period already undergone. He submitted that seven

 

innocent persons lost their lives and eight persons got

 

injured due to the act of the appellant and, therefore, no

 

sympathy was called for. He submitted that sentence

 

should be proportionate to the gravity of offence. He

 

relied upon the decisions of this Court in State of

 

Karnataka v. Krishnappa9, Dalbir Singh v. State of

 

Haryana10, Shailesh Jasvantbhai and another v. State of

 

Gujarat and others11 and Manish Jalan v. State of

 

Karnataka12.

 

24. On the contentions of the learned senior

 

counsel for the appellant and the counsel for the

 

respondent, the following questions arise for our

 

consideration :

 

9 2000 (4) SCC 75

10 2000 (5) SCC 82

11 2006 (2) SCC 359

12 2008 (8) SCC 225

17
(i) Whether indictment on the two charges, namely,

the offence punishable under Section 304 Part II

IPC and the offence punishable under Section

338 IPC is mutually destructive and legally

impermissible? In other words, whether it is

permissible to try and convict a person for the

offence punishable under Section 304 Part II IPC

and the offence punishable under Section 338

IPC for a single act of the same transaction?

 

(ii) Whether by not charging the appellant of

`drunken condition’ and not putting to him the

entire incriminating evidence let in by the

prosecution, particularly the evidence relating

to appellant’s drunken condition, at the time of

his examination under Section 313 of the Code,

the trial and conviction of the appellant got

affected?

 

(iii) Whether prosecution evidence establishes

beyond reasonable doubt the commission of the

offences by the appellant under Section 304

Part II, IPC, Section 338 IPC and Section 337

IPC?

 
(iv) Whether sentence awarded to the appellant by

the High Court for the offence punishable under

Section 304 Part II IPC requires any

modification?

 
re: question (i)

 

 

18
25. Section 304 IPC provides for punishment for

 

culpable homicide not amounting to murder. It reads as

 

under:

 

“S.304. – Punishment for culpable homicide not

amounting to murder – Whoever commits culpable

homicide not amounting to murder shall be punished

with imprisonment for life or imprisonment of either

description for a term which may extend to ten years,

and shall also be liable to fine, if the act by which the

death is caused is done with the intention of causing

death, or of causing such bodily injury as is likely to

cause death, or with imprisonment of either description

for a term which may extend to ten years, or with fine,

or with both, if the act is done with the

knowledge that it is likely to cause death, but

without any intention to cause death, or to cause such

bodily injury as is likely to cause death”.

 

 

26. The above Section is in two parts. Although

 

Section does not specify Part I and Part II but for the

 

sake of convenience, the investigators, the prosecutors,

 

the lawyers, the judges and the authors refer to the first

 

paragraph of the Section as Part I while the second

 

paragraph is referred to as Part II. The constituent

 

elements of Part I and Part II are different and,

 

consequently, the difference in punishment. For

 

punishment under Section 304 Part I, the prosecution

19
must prove: the death of the person in question; that

 

such death was caused by the act of the accused and

 

that the accused intended by such act to cause death or

 

cause such bodily injury as was likely to cause death. As

 

regards punishment for Section 304 Part II, the

 

prosecution has to prove the death of the person in

 

question; that such death was caused by the act of the

 

accused and that he knew that such act of his was likely

 

to cause death. In order to find out that an offence is

 

`culpable homicide not amounting to murder’ – since

 

Section 304 does not define this expression – Sections

 

299 and 300 IPC have to be seen. Section 299 IPC reads

 

as under:

 

“S.-299. – Culpable homicide.–Whoever causes

death by doing an act with the intention of

causing death, or with the intention of causing

such bodily injury as is likely to cause death, or

with the knowledge that he is likely by such act

to cause death, commits the offence of culpable

homicide.”

 

27. To constitute the offence of culpable homicide

 

as defined in Section 299 the death must be caused by

 

doing an act: (a) with the intention of causing death, or

20
(b) with the intention of causing such bodily injury as is

 

likely to cause death, or (c) with the knowledge that the

 

doer is likely by such act to cause death.

 

28. Section 300 deals with murder and also

 

provides for exceptions. The culpable homicide is murder

 

if the act by which the death is caused is done: (1) with

 

the intention of causing death, (2) with the intention of

 

causing such bodily injury as the offender knows to be

 

likely to cause the death of the person to whom the harm

 

is caused, or (3) with the intention of causing such bodily

 

injury as is sufficient in the ordinary course of nature to

 

cause death, or (4) with the knowledge that it is so

 

imminently dangerous that it must, in all probability,

 

cause death or such bodily injury as is likely to cause

 

death and commits such act without any excuse for

 

incurring the risk of causing death or such injury as

 

aforesaid. The exceptions provide that the culpable

 

homicide will not be murder if that act is done with the

 

intention or knowledge in the circumstances and subject

 
21
to the conditions specified therein. In other words, the

 

culpable homicide is not murder if the act by which

 

death is caused is done in extenuating circumstances

 

and such act is covered by one of the five exceptions set

 

out in the later part of Section 300.

 

29. It is not necessary in the present matter to

 

analyse Section 299 and Section 300 in detail. Suffice it

 

to say that the last clause of Section 299 and clause

 

`fourthly’ of Section 300 are based on the knowledge of

 

the likely or probable consequences of the act and do not

 

connote any intention at all.

 

30. Reference to few other provisions of IPC in this

 

regard is also necessary. Section 279 makes rash driving

 

or riding on a public way so as to endanger human life or

 

to be likely to cause hurt or injury to any other person an

 

offence and provides for punishment which may extend

 

to six months, or with fine which may extend to

 

Rs. 1000/-, or with both.

 

 

22
31. Causing death by negligence is an offence

 

under Section 304A. It reads :

 

“S.304A. – Causing death by negligence.–

Whoever causes the death of any person by

doing any rash or negligent act not amounting to

culpable homicide, shall be punished with

imprisonment of either description for a term

which may extend to two years, or with fine, or

with both.”

 

32. Section 336 IPC says that whoever does any

 

act so rashly or negligently as to endanger human life or

 

the personal safety of others, shall be punished with

 

imprisonment of either description for a term which may

 

extend to three months, or with fine which may extend to

 

Rs. 250/-, or with both.

 

 

33. Section 337 IPC reads as follows :

 

“S. 337. – Causing hurt by act endangering

life or personal safety of others.–Whoever

causes hurt to any person by doing any act so

rashly or negligently as to endanger human life,

or the personal safety of others, shall be

punished with imprisonment of either

description for a term which may extend to six

months, or with fine which may extend to five

hundred rupees, or with both.”

 

34. Section 338 IPC is as under :
23
“S. 338. – Causing grievous hurt by act

endangering life or personal safety of others.

–Whoever causes grievous hurt to any person

by doing any act so rashly or negligently as to

endanger human life, or the personal safety of

others, shall be punished with imprisonment of

either description for a term which may extend

to two years, or with fine which may extend to

one thousand rupees, or with both.”

 

35. In Empress of India v. Idu Beg13, Straight J.,

 

explained the meaning of criminal rashness and criminal

 

negligence in the following words: criminal rashness is

 

hazarding a dangerous or wanton act with the knowledge

 

that it is so, and that it may cause injury but without

 

intention to cause injury, or knowledge that it will

 

probably be caused. The criminality lies in running the

 

risk of doing such an act with recklessness or

 

indifference as to the consequences. Criminal negligence

 

is the gross and culpable neglect or failure to exercise

 

that reasonable and proper care and precaution to guard

 

against injury either to the public generally or to an

 

individual in particular, which, having regard to all the

 

circumstances out of which the charge has arisen, it was

 
13 1881 (3) All 776

24
the imperative duty of the accused person to have

 

adopted.

 

36. The above meaning of criminal rashness and

 

criminal negligence given by Straight J. has been adopted

 

consistently by this Court.

 

37. Insofar as Section 304A IPC is concerned, it

 

deals with death caused by doing any rash or negligent

 

act where such death is caused neither intentionally nor

 

with the knowledge that the act of the offender is likely to

 

cause death. The applicability of Section 304A IPC is

 

limited to rash or negligent acts which cause death but

 

fall short of culpable homicide amounting to murder or

 

culpable homicide not amounting to murder. An

 

essential element to attract Section 304A IPC is death

 

caused due to rash or negligent act. The three things

 

which are required to be proved for an offence under

 

Section 304A are : (1) death of human being; (2) the

 

accused caused the death and (3) the death was caused

 

 

25
by the doing of a rash or negligent act, though it did not

 

amount to culpable homicide of either description.

 

38. Like Section 304A, Sections 279, 336, 337

 

and 338 IPC are attracted for only the negligent or rash

 

act.

 

39. The scheme of Sections 279, 304A, 336, 337 and

 

338 leaves no manner of doubt that these offences are

 

punished because of the inherent danger of the acts

 

specified therein irrespective of knowledge or intention to

 

produce the result and irrespective of the result. These

 

sections make punishable the acts themselves which are

 

likely to cause death or injury to human life. The

 

question is whether indictment of an accused under

 

Section 304 Part II and Section 338 IPC can co-exist in a

 

case of single rash or negligent act. We think it can. We

 

do not think that two charges are mutually destructive. If

 

the act is done with the knowledge of the dangerous

 

consequences which are likely to follow and if death is

 

caused then not only that the punishment is for the act

 
26
but also for the resulting homicide and a case may fall

 

within Section 299 or Section 300 depending upon the

 

mental state of the accused viz., as to whether the act

 

was done with one kind of knowledge or the other or the

 

intention. Knowledge is awareness on the part of the

 

person concerned of the consequences of his act of

 

omission or commission indicating his state of mind.

 

There may be knowledge of likely consequences without

 

any intention. Criminal culpability is determined by

 

referring to what a person with reasonable prudence

 

would have known.

 

40. Rash or negligent driving on a public road

 

with the knowledge of the dangerous character and the

 

likely effect of the act and resulting in death may fall in

 

the category of culpable homicide not amounting to

 

murder. A person, doing an act of rash or negligent

 

driving, if aware of a risk that a particular consequence is

 

likely to result and that result occurs, may be held guilty

 

not only of the act but also of the result. As a matter of

 
27
law – in view of the provisions of the IPC – the cases

 

which fall within last clause of Section 299 but not

 

within clause `fourthly’ of Section 300 may cover the

 

cases of rash or negligent act done with the knowledge of

 

the likelihood of its dangerous consequences and may

 

entail punishment under Section 304 Part II IPC. Section

 

304A IPC takes out of its ambit the cases of death of any

 

person by doing any rash or negligent act amounting to

 

culpable homicide of either description.

 

41. 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 IPC.

 

42. There is no incongruity, if simultaneous with

 

the offence under Section 304 Part II, a person who has

 
28
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 IPC.

 

43. In view of the above, in our opinion there is no

 

impediment in law for an offender being charged for the

 

offence under Section 304 Part II IPC and also under

 

Sections 337 and 338 IPC. The two charges under

 

Section 304 Part II IPC and Section 338 IPC can legally

 

co-exist in a case of single rash or negligent act where a

 

rash or negligent act is done with the knowledge of

 

likelihood of its dangerous consequences.

 

44. By charging the appellant for the offence

 

under Section 304 Part II IPC and Section 338 IPC –

 

which is legally permissible – no prejudice has been

 

caused to him. The appellant was made fully aware of

 

the charges against him and there is no failure of justice.

 

We are, therefore, unable to accept the submission of Mr.

 

U.U. Lalit that by charging the appellant for the offences

 
29
under Section 304 Part II IPC and Section 338 IPC for a

 

rash or negligent act resulting in injuries to eight persons

 

and at the same time committed with the knowledge

 

resulting in death of seven persons, the appellant has

 

been asked to face legally impermissible course.

 

45. In Prabhakaran Vs. State of Kerala14, this

 

Court was concerned with the appeal filed by a convict

 

who was found guilty of the offence punishable under

 

Section 304 Part II IPC. In that case, the bus driven by

 

the convict ran over a boy aged 10 years. The

 

prosecution case was that bus was being driven by the

 

appellant therein at the enormous speed and although

 

the passengers had cautioned the driver to stop as they

 

had seen children crossing the road in a queue, the

 

driver ran over the student on his head. It was alleged

 

that the driver had real intention to cause death of

 

persons to whom harm may be caused on the bus

 

hitting them. He was charged with offence punishable

 

under Section 302 IPC. The Trial Court found that no

 

14 2007 (14) SCC 269

30
intention had been proved in the case but at the same

 

time the accused acted with the knowledge that it was

 

likely to cause death, and, therefore, convicted the

 

accused of culpable homicide not amounting to murder

 

punishable under Section 304 Part II IPC and sentenced

 

him to undergo rigorous imprisonment for five years

 

and pay a fine of Rs.15,000/- with a default sentence of

 

imprisonment for three years. The High Court dismissed

 

the appeal and the matter reached this Court. While

 

observing that Section 304A speaks of causing death by

 

negligence and applies to rash and negligent acts and

 

does not apply to cases where there is an intention to

 

cause death or knowledge that the act will in all

 

probability cause death and that Section 304A only

 

applies to cases in which without any such intention or

 

knowledge death is caused by a rash and negligent act,

 

on the factual scenario of the case, it was held that the

 

appropriate conviction would be under Section 304A IPC

 

and not Section 304 Part II IPC. Prabhakaran14 does not

 
31
say in absolute terms that in no case of an automobile

 

accident that results in death of a person due to rash

 

and negligent act of the driver, the conviction can be

 

maintained for the offence under Section 304 Part II IPC

 

even if such act (rash or negligent) was done with the

 

knowledge that by such act of his, death was likely to be

 

caused. Prabhakaran14 turned on its own facts. Each

 

case obviously has to be decided on its own facts. In a

 

case where negligence or rashness is the cause of death

 

and nothing more, Section 304A may be attracted but

 

where the rash or negligent act is preceded with the

 

knowledge that such act is likely to cause death, Section

 

304 Part II IPC may be attracted and if such a rash and

 

negligent act is preceded by real intention on the part of

 

the wrong doer to cause death, offence may be

 

punishable under Section 302 IPC.
re: question (ii)
46. On behalf of the appellant it was strenuously

 

urged that the conviction of the appellant by the High

 
32
Court for the offence under Section 304 Part II IPC rests

 

solely on the premise that the appellant had knowledge

 

that his reckless or negligent driving in a drunken

 

condition could result in serious consequences of

 

causing fatal accident . It was submitted that neither in

 

the charge framed against the appellant, the crux of the

 

prosecution case that the appellant was in a drunken

 

condition was stated nor incriminating evidences and

 

circumstances relating to rashness or negligence of the

 

accused in the drunken condition were put to him in the

 

statement under Section 313 of the Code.

 

47. It is a fact that no charge under Section 185 of

 

the Motor Vehicles Act, 1988 and Section 66(1)(b) of the

 

Bombay Prohibition Act, 1949 was framed against the

 

appellant. It is also a fact that in the charge framed

 

against the appellant under Section 304 Part II IPC, the

 

words `drunken condition’ are not stated and the charge

 

reads; `on November 12, 2006 between 3.45 to 4.00

 

a.m. he was driving the car bearing Registration No.

 
33
MH-01-R-580 rashly and negligently with knowledge that

 

people are sleeping on footpath and likely to cause death

 

of those persons rammed over the footpath and thereby

 

caused death of 8 persons who were sleeping on footpath

 

on Carter Road, Bandra (West), Mumbai and thereby

 

committed an offence punishable under Section 304 Part

 

II IPC’. The question is whether the omission of the

 

words, `in drunken condition’ after the words `negligently’

 

and before the words `with knowledge’ has caused any

 

prejudice to the appellant.

 

48. Section 464 of the Code reads as follows:

 
“S.464. – Effect of omission to frame, or

absence of, or error in, charge.-
(1) No finding sentence or order by a court

of competent jurisdiction shall be deemed

invalid merely on the ground that no charge

was framed or on the ground of any error,

omission or irregularity in the charge

including any misjoinder of charges, unless,

in the opinion of the court of appeal,

confirmation or revision, a failure of justice

has in fact been occasioned thereby.
(2) If the court of appeal, confirmation or

revision is of opinion that a failure of justice

has in fact been occasioned, it may-

 

34
(a) In the case of an omission to frame a

charge, order that a charge be framed and

that the trial be recommenced from the point

immediately after the framing of the charge.
(b) In the case of an error, omission or

irregularity in the charge, direct a new trial

to be had upon a charge framed in whatever

manner it thinks fit:
Provided that if the court is of opinion that

the facts of the case are such that no valid

charge could be preferred against the

accused in respect of the facts proved, it

shall quash the conviction.

 

 

49. The above provision has come up for

 

consideration before this Court on numerous occasions.

 

It is not necessary to refer to all these decisions.

 

Reference to a later decision of this Court in the case of

 

Anna Reddy Sambasiva Reddy7 delivered by one of us

 

(R.M. Lodha, J.) shall suffice. In paras 55-56 of the

 

Report in Anna Reddy Sambasiva Reddy7 it has been

 

stated as follows:

 
“55. In unmistakable terms, Section 464

specifies that a finding or sentence of a court

shall not be set aside merely on the ground

that a charge was not framed or that charge

was defective unless it has occasioned in

prejudice. Because of a mere defect in

35
language or in the narration or in form of the

charge, the conviction would not be rendered

bad if accused has not been adversely

affected thereby. If the ingredients of the

section are obvious or implicit, conviction in

regard thereto can be sustained irrespective

of the fact that the said section has not been

mentioned.
56. A fair trial to the accused is a sine quo

non in our criminal justice system but at the

same time procedural law contained in the

Code of Criminal Procedure is designed to

further the ends of justice and not to

frustrate them by introduction of hyper-

technicalities. Every case must depend on its

own merits and no straightjacket formula can

be applied; the essential and important

aspect to be kept in mind is: has omission to

frame a specific charge resulted in prejudice

to the accused.”
50. In light of the above legal position, if the

 

charge under Section 304 Part II IPC framed against the

 

appellant is seen, it would be clear that the ingredients

 

of Section 304 Part II IPC are implicit in that charge.

 

The omission of the words `in drunken condition’ in the

 

charge is not very material and, in any case, such

 

omission has not at all resulted in prejudice to the

 

appellant as he was fully aware of the prosecution

 

 

36
evidence which consisted of drunken condition of the

 

appellant at the time of incident.

 
51. PW-1 is the doctor who examined the

 

appellant immediately after the incident. In his

 

deposition he stated that he had taken the blood of the

 

accused as he was found in drunken condition. On

 

behalf of the appellant PW-1 has been cross examined

 

but there is no cross-examination of PW-1 on this aspect.

 
52. It is a fact that evidence of PW-1, as noticed

 

above, has not been put to the appellant in his statement

 

under Section 313 of the Code but that pales into

 

insignificance for want of cross examination of PW-1 in

 

regard to his deposition that the appellant was found in

 

drunken condition and his blood sample was taken.

 
53. CA Report (Ex. 49) too has not been

 

specifically put to the appellant at the time of his

 

examination under Section 313 of the Code but it is

 

pertinent to notice that PW-18 (Investigating Officer)

 

37
deposed that he had forwarded blood sample of the

 

accused and the bottle found in the car to the chemical

 

analyzer (CA) on 14.11.2006 and 15.11.2006

 

respectively. He further deposed that he collected the

 

medical certificate from Bhabha Hospital and he had

 

received the CA report (Ex. 49). PW-18 has also not been

 

cross examined by the defence in respect of the above. In

 

the examination under Section 313 of the Code the

 

following questions were put to the appellant: Question

 

9: “What you want to say about the further evidence of

 

above two witnesses that police while drawing spot

 

panchanama seized one ladies chappal, remote, lighter,

 

cigarette perfume and so called liquor bottle from the

 

vehicle i.e. MH-01-R-580?” The appellant answered `I do

 

not know’ Question 16: ” What you want to say about

 

the evidence of Meenakashi Patil who has stated that

 

initial investigation as carried out by her and further

 

investigation was entrusted to PI Phulsunder from

 

13.11.2006 and on due investigation police concluded

 
38
themselves that your rash and negligence driving caused

 

the death of seven persons and injury to the eight

 

persons by vehicle No. MH-01-R-580 by consuming

 

alcohol so police have charge sheeted you?” He

 

answered, `It is false’.

 
54. The above questions in his examination under

 

Section 313 of the Code show that the appellant was

 

fully aware of the prosecution evidence relating to his

 

rash and negligent driving in the drunken condition. In

 

the circumstances, by not putting to the appellant

 

expressly the CA report (Ex. 49) and the evidence of PW

 

1, no prejudice can be said to have been caused to the

 

appellant. The words of P.B. Gajendragadkar, J. (as he

 

then was) in Jai Dev Vs. State of Punjab15 speaking for

 

three-Judge Bench with reference to Section 342 of the

 

Code (corresponding to Section 313 of the 1973 Code)

 

may be usefully quoted:

 
“21 . . . . . . the ultimate test in determining

whether or not the accused has been fairly
15 AIR 1963 SC 612

39
examined under Section 342 would be to

enquire whether, having regard to all the

questions put to him, he did get an opportunity

to say what he wanted to say in respect of

prosecution case against him. If it appears that

the examination of the accused person was

defective and thereby a prejudice has been

caused to him, that would no doubt be a

serious infirmity. . . . . . . . .”.
55. In Shivaji Sahabrao Bobade and Anr. Vs. State of

 

Maharashtra8 a 3-Judge Bench of this Court stated:

 

“16. ……..It is trite law, nevertheless fundamental,

that the prisoner’s attention should be drawn to

every inculpatory material so as to enable him to

explain it. This is the basic fairness of a criminal

trial and failures in this area may gravely imperil

the validity of the trial itself, if consequential

miscarriage of justice has flowed. However, where

such an omission has occurred it does not ipso

facto vitiate the proceedings and prejudice

occasioned by such defect must be established by

the accused. In the event of evidentiary material

not being put to the accused, the court must

ordinarily eschew such material from

consideration. It is also open to the appellate court

to call upon the counsel for the accused to show

what explanation the accused has as regards the

circumstances established against him but not put

to him and if the accused is unable to offer the

appellate court any plausible or reasonable

explanation of such circumstances, the court may

assume that no acceptable answer exists and that

even if the accused had been questioned at the

proper time in the trial court he would not have

been able to furnish any good ground to get out of

the circumstances on which the trial court had

relied for its conviction”.

 

 

40
56. The above decisions have been referred in

 

Asraf Ali Vs. State of Assam16. The Court stated:

 

 

“21. Section 313 of the Code casts a duty on the

court to put in an enquiry or trial questions to

the accused for the purpose of enabling him to

explain any of the circumstances appearing in

the evidence against him. It follows as a

necessary corollary therefrom that each material

circumstance appearing in the evidence against

the accused is required to be put to him

specifically, distinctly and separately and failure

to do so amounts to a serious irregularity

vitiating trial, if it is shown that the accused was

prejudiced.

 
22. The object of Section 313 of the Code is to

establish a direct dialogue between the court

and the accused. If a point in the evidence is

important against the accused, and the

conviction is intended to be based upon it, it is

right and proper that the accused should be

questioned about the matter and be given an

opportunity of explaining it. Where no specific

question has been put by the trial court on an

inculpatory material in the prosecution evidence,

it would vitiate the trial. Of course, all these are

subject to rider whether they have caused

miscarriage of justice or prejudice.

 

24. In certain cases when there is perfunctory

examination under Section 313 of the Code, the

matter is remanded to the trial court, with a

direction to retry from the stage at which the

prosecution was closed”.

 

 

16 2008 (16) SCC 328

41
57. From the above, the legal position appears to

 

be this : the accused must be apprised of incriminating

 

evidence and materials brought in by the prosecution

 

against him to enable him to explain and respond to

 

such evidence and material. Failure in not drawing the

 

attention of the accused to the incriminating evidence

 

and inculpatory materials brought in by prosecution

 

specifically, distinctly and separately may not by itself

 

render the trial against the accused void and bad in law;

 

firstly, if having regard to all the questions put to him, he

 

was afforded an opportunity to explain what he wanted to

 

say in respect of prosecution case against him and

 

secondly, such omission has not caused prejudice to him

 

resulting in failure of justice. The burden is on the

 

accused to establish that by not apprising him of the

 

incriminating evidence and the inculpatory materials that

 

had come in the prosecution evidence against him, a

 

prejudice has been caused resulting in miscarriage of

 

justice.
42
58. Insofar as present case is concerned, in his

 

statement under Section 313, the appellant was

 

informed about the evidence relating to the incident that

 

occurred in the early hours (between 3.45 a.m. to 4.00

 

a.m.) of November 12, 2006 and the fact that repairs

 

were going on the road at that time. The appellant

 

accepted this position. The appellant was also informed

 

about the evidence of the prosecution that vehicle No.

 

MH-01-R-580 was involved in the said incident. This was

 

also accepted by the appellant. His attention was brought

 

to the evidence of the eye-witnesses and injured

 

witnesses, namely, PW-2, PW-3, PW-4, PW-5, PW-6, PW-

 

7, PW-8, PW-9 and PW-10 that at the relevant time they

 

were sleeping on the pavement of Carter Road, Bandra

 

(West) outside the temporary huts and there was an

 

accident in which seven persons died and eight persons

 

got injured. The attention of the appellant was also

 

drawn to the evidence of the spot panchas (PW-11 and

 
43
PW-16) that they had noticed that the car no. MH-01-R-

 

580 at the time of preparation of spot panchnama was in

 

a heavily damaged condition with dislodged right side

 

wheel and some blood was found on the earth and the

 

huts were found damaged. The prosecution evidence that

 

the appellant was seen driving car no. MH-01-R-580 at

 

high speed from Khar Danda side and that rammed over

 

the footpath and crushed the labourers sleeping there

 

was also brought to his notice. The evidence of the

 

mechanical expert (PW-15) that he checked the vehicle

 

and found no mechanical defect in the car was also

 

brought to his notice. During investigation, the police

 

concluded that the rash and negligent driving of the

 

appellant by consuming alcohol caused the death of

 

seven persons and injury to the eight persons. The

 

conclusion drawn on the completion of investigation was

 

also put to him. The appellant’s attention was also

 

invited to the materials such as photographs, mechanical

 

inspections of the car, seized articles, liquor bottle, etc.

 
44
Having regard to the above, it cannot be said that the

 

appellant was not made fully aware of the prosecution

 

evidence that he had driven the car rashly or negligently

 

in a drunken condition. He had full opportunity to say

 

what he wanted to say with regard to the prosecution

 

evidence.

 

 

59. The High Court in this regard held as under :

 

“29…………The salutary provision of section 313

of the Code have been fairly, or at least

substantially, complied with by the trial court, in

the facts and circumstances of this case. The

real purpose of putting the accused at notice of

the incriminating circumstances and requiring

him to offer explanation, if he so desires, has

been fully satisfied in the present case. During

the entire trial, copies of the documents were

apparently supplied to the accused, even prior to

the framing of the charge. After such charge was

framed, all the witnesses were examined in the

presence of the accused and even limited

questions regarding incriminating material put

by the court to the accused in his statement

under Section 313 of the Code shows that the

entire prosecution case along with different

exhibits was put to the accused. He in fact did

not deny the suggestions that the witnesses had

been examined in his presence and he was

aware about the contents of their statements. All
45
this essentially would lead to only one

conclusion that the contention raised on behalf

of the accused in this regard deserves to be

rejected. While rejecting this contention we

would also observe that the admission or

confession of the accused in his statement

under section 313 of the Code, in so far as it

provides support or even links to, or aids the

case of the prosecution proved on record, can

also be looked into by the court in arriving at its

final conclusion. It will be more so when

explanation in the form of answers given by the

accused under Section 313 of the Code are

apparently untrue and also when no cross

examination of the crucial prosecution witnesses

was conducted on this line.”

 

We are in agreement with the above view of the High

 

Court.
r
e: question (iii )
60. The crucial question now remains to be seen is

 

whether the prosecution evidence establishes beyond

 

reasonable doubt the commission of offence under

 

Section 304 Part II IPC, Section 338 IPC and Section 337

 

IPC against the appellant.

 

61. The appellant has not denied that in the early

 

hours of November 12, 2006 between 3.45-4.00 a.m. on

 

the South-North Road at the East side of Carter Road,

 
46
Bandra (West), Mumbai, the car bearing registration

 

no. MH-01-R-580 met with an accident and he was at the

 

wheels at that time. PW-13 was working as a watchman

 

at the construction site. He witnessed the accident. He

 

deposed that he noticed that in the night of November 11,

 

2006 and November 12, 2006 at about 4.00 a.m., the

 

vehicle bearing no. MH-01-R-580 came from Khar Danda

 

side; the vehicle was in high speed and rammed over the

 

pavement and crushed the labourers. He deposed that

 

14-15 persons were sleeping at that time on the

 

pavement. He stated that he used to take rounds during

 

his duty hours. His evidence has not at all been shaken

 

in the cross-examination.

 

62. PW-2 is the complainant. He lodged the

 

complaint of the incident at the Khar Police Station. In

 

his deposition, he has stated that he was contractor with

 

New India Construction Co. and nine labourers were

 

working under him. At Carter Road, the work of road

 

levelling was going on. He and other persons were

 
47
sleeping in a temporary hutment near railway colony.

 

The labourers were sleeping on the pavement. When he

 

was easing himself, at about 3.30 a.m. of November 12,

 

2006, he heard the commotion and saw the smoke

 

coming out of the vehicle that rammed over the footpath.

 

Six persons died on the spot; one expired in the hospital

 

and eight persons sustained injuries. He confirmed that

 

the police recorded his complaint and the complaint (Ex.

 

13) was read over to him by the police and was correct.

 

He has been cross-examined by the defence but there is

 

no cross examination in respect of his statement that he

 

had got up to ease himself at about 3.30 a.m. on

 

November 12, 2006 and he heard the commotion and

 

saw smoke coming out of the vehicle. He has denied the

 

suggestion of the defence that road was blocked to some

 

extent for construction purpose. He denied that he had

 

filed false complaint so as to avoid payment of

 

compensation to the workers.

 

 

48
63. The first Investigating Officer (PW-17), who

 

proceeded along with the staff no sooner the message

 

was received from Khar 1 Mobile Van that accident had

 

taken place at Carter Road, near Railway Officers

 

Quarters and reached the spot, has deposed that on her

 

arrival at the spot, she came to know that the labourers

 

who were sleeping on footpath were run over by the

 

vehicle bearing No. MH-01-R-580. She shifted the injured

 

to the Bhabha Hospital; went to the Khar police station

 

for recording the complaint and then came back to the

 

site of accident and prepared Panchnama (Ex. 28) in the

 

presence of Panchas PW-11 and PW-16. Exhibit 28

 

shows that the accident spot is towards south of railway

 

quarters gate and is at a distance of about 110 feet. The

 

length of footpath between railway quarters gate and

 

Varun Co-operative Housing Society gate is about 160

 

feet. The accident spot is about 50 feet from the Varun

 

Co-operative Housing Society gate. On the footpath,

 

between railway quarters gate and Varun Co-operative

 
49
Housing Society gate, the temporary sheds were set up.

 

The vehicle (Toyota Corolla) bearing No. MH-01-R-580

 

was lying in the middle of the road between road divider

 

and footpath on Carter Road at about 50 feet from the

 

north side of Varun Co-operative Housing Society gate

 

and about 110 feet from railway quarters gate on the

 

south side. The front wheel of the car was broken and

 

mudguard was pressed. The spot panchnama shows 70

 

feet long brake marks in a curve from west side of the

 

road divider towards footpath on eastern side. It is

 

further seen from the spot panchnama that a tempo,

 

mud digger and two trucks were parked on the road

 

between Railway Quarters gate and Varun Cooperative

 

Housing Society gate near the accident spot. The spot

 

panchnama is duly proved by PW-11 and PW-16. There is

 

nothing in the cross-examination of these witnesses to

 

doubt their presence or veracity. The long brake marks

 

in curve show that vehicle was being driven by the

 

appellant at the high speed; the appellant had lost

 
50
control of the speeding vehicle resulting in the accident

 

and, consequently, seven deaths and injury to eight

 

persons.

 

64. PW-15 is a motor vehicle inspector. He

 

deposed that he was summoned by the control room to

 

check the vehicle MH 01-R-580 involved in the accident.

 

At the time of inspection, right side wheel of the vehicle

 

was found dislodged from the body of the vehicle and the

 

engine was dislodged from the foundation; though the

 

steering wheel was intact and brake lever and gear lever

 

were operative. There was no air in the front wheel of the

 

vehicle. He opined that accident might have happened on

 

account of dash. He has been briefly cross-examined and

 

the only thing he said in the cross-examination was that

 

he could not say whether the accident took place due to

 

dislodging of right side wheel and dislodging of engine

 

from foundation.

 

65. The above evidence has been considered by the

 

High Court quite extensively. The High Court, on

 
51
consideration of the entire prosecution evidence and

 

having regard to the deficiencies pointed out by the

 

defence, reached the conclusion that (1) the accused at

 

the time of driving the car was under the influence of

 

liquor; (2) he drove the car in drunken condition at a

 

very high speed; and (3) he failed to control the vehicle

 

and the vehicle could not be stopped before it ran over

 

the people sleeping on the pavement. The High Court

 

observed that the accused could not concentrate on

 

driving as he was under the influence of liquor and the

 

vehicle was being driven with loud noise and a tape

 

recorder being played in high volume. The High Court

 

held that the accused had more than 22 feet wide road

 

for driving and there was no occasion for a driver to

 

swing to the left and cover a distance of more than 55

 

feet; climb over the footpath and run over the persons

 

sleeping on the footpath. The High Court took judicial

 

notice of the fact that in Mumbai people do sleep on

 

pavements. The accused was also aware of the fact that

 
52
at the place of occurrence people sleep as the accused

 

was resident of that area. The High Court took note of

 

the fact that the accused had admitted the accident and

 

his explanation was that the accident occurred due to

 

mechanical failure and the defect that was developed in

 

the vehicle but found his explanation improbable and

 

unacceptable. The High Court also observed that the

 

factum of high and reckless speed was evident from the

 

brake marks at the site. The speeding car could not be

 

stopped by him instantaneously. In the backdrop of the

 

above findings, the High Court held that the accused

 

could be attributed to have a specific knowledge of the

 

event that happened. The High Court, thus concluded

 

that the accused had knowledge and in any case such

 

knowledge would be attributable to him that his actions

 

were dangerous or wanton enough to cause injuries

 

which may even result into death of persons.

 

66. We have also carefully considered the evidence

 

let in by prosecution – the substance of which has been

 
53
referred to above – and we find no justifiable ground to

 

take a view different from that of the High Court. We

 

agree with the conclusions of the High Court and have no

 

hesitation in holding that the evidence and materials on

 

record prove beyond reasonable doubt that the appellant

 

can be attributed with knowledge that his act of driving

 

the vehicle at a high speed in the rash or negligent

 

manner was dangerous enough and he knew that one

 

result would very likely be that people who were asleep

 

on the pavement may be hit, should the vehicle go out of

 

control. There is a presumption that a man knows the

 

natural and likely consequences of his acts. Moreover,

 

an act does not become involuntary act simply because

 

its consequences were unforeseen. The cases of

 

negligence or of rashness or dangerous driving do not

 

eliminate the act being voluntary. In the present case,

 

the essential ingredients of Section 304 Part II IPC have

 

been successfully established by the prosecution against

 

the appellant. The infirmities pointed out by Mr. U.U.

 
54
Lalit, learned senior counsel for the appellant, which

 

have been noticed above are not substantial and in no

 

way affect the legality of the trial and the conviction of

 

the appellant under Section 304 Part II IPC. We uphold

 

the view of the High Court being consistent with the

 

evidence on record and law.

 

67. The trial court convicted the accused of the

 

offence under Section 337 IPC but acquitted him of the

 

charge under Section 338 IPC. The High Court noticed

 

that two injured persons, namely, PW-6 and PW-8 had

 

injuries over the right front temporal parietal region of

 

the size of 5×3 cms. with scar deep with bleeding (Ex. 37

 

and 33 respectively). The High Court held that these were

 

not simple injuries and were covered by the grievous hurt

 

under Section 320 IPC. We agree. Charge under Section

 

338 IPC against the appellant is clearly established.

 

68. Insofar as charge under Section 337 IPC is

 

concerned, it is amply established from the prosecution

 

evidence that PW-5, PW-7, PW-9 and PW-10 received

 
55
various injuries; they suffered simple hurt. The trial

 

court as well as the High Court was justified in convicting

 

the appellant for the offence punishable under Section

 

337 IPC as well.
r
e: question (iv )

 
69. The question now is whether the maximum

 

sentence of three years awarded to the appellant by the

 

High Court for the offence under Section 304 Part II IPC

 

requires any modification? It was argued on behalf of the

 

appellant that having regard to the facts : (i) the

 

appellant has already undergone sentence of two months

 

and has paid Rs. 8,50,000/- by way of fine and

 

compensation; (ii) the appellant is further willing to pay

 

reasonable amount as compensation/fine as may be

 

awarded by this Court; (iii) the appellant was about 20

 

years of age at the time of incident; and (iv) the appellant

 

lost his father during the pendency of the appeal and

 

presently being the only member to support his family

 

which comprises of mother and unmarried sister, he may
56
be released on probation of good conduct and behaviour

 

or the sentence awarded to him be reduced to the period

 

already undergone.

 

70. Sentencing is an important task in the matters

 

of crime. One of the prime objectives of the criminal law

 

is imposition of appropriate, adequate, just and

 

proportionate sentence commensurate with the nature

 

and gravity of crime and the manner in which the crime

 

is done. There is no straitjacket formula for sentencing

 

an accused on proof of crime. The courts have evolved

 

certain principles: twin objective of the sentencing policy

 

is deterrence and correction. What sentence would meet

 

the ends of justice depends on the facts and

 

circumstances of each case and the court must keep in

 

mind the gravity of the crime, motive for the crime,

 

nature of the offence and all other attendant

 

circumstances.

 

71. The principle of proportionality in sentencing a

 

crime doer is well entrenched in criminal jurisprudence.

 
57
As a matter of law, proportion between crime and

 

punishment bears most relevant influence in

 

determination of sentencing the crime doer. The court

 

has to take into consideration all aspects including social

 

interest and consciousness of the society for award of

 

appropriate sentence.

 

72. This Court has laid down certain principles of

 

penology from time to time. There is long line of cases on

 

this aspect. However, reference to few of them shall

 

suffice in the present case.

 

73. In the case of Krishnappa9, though this Court

 

was concerned with the crime under Section 376 IPC but

 

with reference to sentencing by courts, the Court made

 

these weighty observations :

 

“18. …….. Protection of society and deterring the

criminal is the avowed object of law and that is

required to be achieved by imposing an

appropriate sentence. The sentencing courts are

expected to consider all relevant facts and

circumstances bearing on the question of

sentence and proceed to impose a sentence

commensurate with the gravity of the offence.

Courts must hear the loud cry for justice by the

society in cases of the heinous crime of rape on

innocent helpless girls of tender years, as in this

58
case, and respond by imposition of proper

sentence. Public abhorrence of the crime needs

reflection through imposition of appropriate

sentence by the court. There are no extenuating

or mitigating circumstances available on the

record which may justify imposition of any

sentence less than the prescribed minimum on

the respondent. To show mercy in the case of

such a heinous crime would be a travesty of

justice and the plea for leniency is wholly

misplaced. ………”

 

74. In the case of Dalbir Singh10, this Court was

 

concerned with a case where the accused was held guilty

 

of the offence under Section 304A IPC. The Court made

 

the following observations (at Pages 84-85 of the Report):

 

“1. When automobiles have become death traps

any leniency shown to drivers who are found

guilty of rash driving would be at the risk of

further escalation of road accidents. All those

who are manning the steering of automobiles,

particularly professional drivers, must be kept

under constant reminders of their duty to adopt

utmost care and also of the consequences

befalling them in cases of dereliction. One of the

most effective ways of keeping such drivers

under mental vigil is to maintain a deterrent

element in the sentencing sphere. Any latitude

shown to them in that sphere would tempt them

to make driving frivolous and a frolic.”

 

Then while dealing with Section 4 of the Probation of

 

Offenders Act, 1958, it was observed that Section 4 could

 

be resorted to when the court considers the

59
circumstances of the case, particularly the nature of the

 

offence, and the court forms its opinion that it is suitable

 

and appropriate for accomplishing a specified object that

 

the offender can be released on the probation of good

 

conduct. For application of Section 4 of the Probation of

 

Offenders Act, 1958 to convict under Section 304A IPC,

 

the court stated in paragraph 11 of the Report (at Pg. 86)

 

thus:-

 

“Courts must bear in mind that when any plea is

made based on Section 4 of the PO Act for

application to a convicted person under Section

304-A IPC, that road accidents have proliferated

to an alarming extent and the toll is galloping

day by day in India, and that no solution is in

sight nor suggested by any quarter to bring

them down……….”

 

Further, dealing with this aspect, in paragraph 13 (at

 

page 87) of the Report, this Court stated :

 

“Bearing in mind the galloping trend in road

accidents in India and the devastating

consequences visiting the victims and their

families, criminal courts cannot treat the nature

of the offence under Section 304-A IPC as

attracting the benevolent provisions of Section 4

of the PO Act. While considering the quantum of

sentence to be imposed for the offence of causing

death by rash or negligent driving of

automobiles, one of the prime considerations
60
should be deterrence. A professional driver

pedals the accelerator of the automobile almost

throughout his working hours. He must

constantly inform himself that he cannot afford

to have a single moment of laxity or

inattentiveness when his leg is on the pedal of a

vehicle in locomotion. He cannot and should not

take a chance thinking that a rash driving need

not necessarily cause any accident; or even if

any accident occurs it need not necessarily

result in the death of any human being; or even

if such death ensues he might not be convicted

of the offence; and lastly, that even if he is

convicted he would be dealt with leniently by the

court. He must always keep in his mind the fear

psyche that if he is convicted of the offence for

causing death of a human being due to his

callous driving of the vehicle he cannot escape

from a jail sentence. This is the role which the

courts can play, particularly at the level of trial

courts, for lessening the high rate of motor

accidents due to callous driving of automobiles.”

 

75. In State of M.P. v. Saleem alias Chamaru &

 

Anr.17, while considering the case under Section 307 IPC

 

this Court stated in paragraphs 6-10 (pages 558-559) of

 

the Report as follows :

 

“6. Undue sympathy to impose inadequate

sentence would do more harm to the justice

system to undermine the public confidence in

the efficacy of law and society could not long

endure under such serious threats. It is,

therefore, the duty of every court to award

proper sentence having regard to the nature of

 
17 2005 (5) SCC 554

61
the offence and the manner in which it was

executed or committed, etc. . . . . . . . . . .

 

7. After giving due consideration to the facts and

circumstances of each case, for deciding just

and appropriate sentence to be awarded for an

offence, the aggravating and mitigating factors

and circumstances in which a crime has been

committed are to be delicately balanced on the

basis of really relevant circumstances in a

dispassionate manner by the court. Such act of

balancing is indeed a difficult task. It has been

very aptly indicated in Dennis Councle McGautha

v. State of California (402 US 183) that no

formula of a foolproof nature is possible that

would provide a reasonable criterion in

determining a just and appropriate punishment

in the infinite variety of circumstances that may

affect the gravity of the crime. In the absence of

any foolproof formula which may provide any

basis for reasonable criteria to correctly assess

various circumstances germane to the

consideration of gravity of crime, the

discretionary judgment in the facts of each case,

is the only way in which such judgment may be

equitably distinguished.

 

8. The object should be to protect society and to

deter the criminal in achieving the avowed object

of law by imposing appropriate sentence. It is

expected that the courts would operate the

sentencing system so as to impose such

sentence which reflects the conscience of the

society and the sentencing process has to be

stern where it should be.

 

9. Imposition of sentence without considering its

effect on the social order in many cases may be

in reality a futile exercise. The social impact of

the crime e.g. where it relates to offences against
62
women, dacoity, kidnapping, misappropriation

of public money, treason and other offences

involving moral turpitude or moral delinquency

which have great impact on social order and

public interest, cannot be lost sight of and per se

require exemplary treatment. Any liberal attitude

by imposing meagre sentences or taking too

sympathetic view merely on account of lapse of

time in respect of such offences will be result

wise counterproductive in the long run and

against societal interest which needs to be cared

for and strengthened by a string of deterrence

inbuilt in the sentencing system.

 

10. The court will be failing in its duty if

appropriate punishment is not awarded for a

crime which has been committed not only

against the individual victim but also against the

society to which the criminal and victim belong.

The punishment to be awarded for a crime must

not be irrelevant but it should conform to and be

consistent with the atrocity and brutality with

which the crime has been perpetrated, the

enormity of the crime warranting public

abhorrence and it should “respond to the

society’s cry for justice against the criminal”.”

 

76. In the case of Shailesh Jasvantbhai11, the

 

Court referred to earlier decisions in Dhananjoy

 

Chatterjee alias Dhana v. State of W.B.18, Ravji alias Ram

 

Chandra v. State of Rajasthan19, State of M.P. v.

 

Ghanshyam Singh20, Surjit Singh v. Nahara Ram & Anr.21,

 

18 (1994) 2 SCC 220

19 (1996) 2 SCC 175

20 (2003) 8 SCC 13

21 (2004) 6 SCC 513

63
State of M.P. v. Munna Choubey22. In Ravji19, this Court

 

stated that the court must not only keep in view the

 

rights of the criminal but also the rights of the victim of

 

the crime and the society at large while considering the

 

imposition of appropriate punishment. The punishment

 

to be awarded for a crime must not be irrelevant but it

 

should conform to and be consistent with the atrocity

 

and brutality with which the crime has been perpetrated,

 

the enormity of the crime warranting public abhorrence

 

and it should “respond to the society’s cry for justice

 

against the criminal”.

 

77. In Manish Jalan12, this Court considered

 

Section 357 of the Code in a case where the accused was

 

found guilty of the offences punishable under Sections

 

279 and 304A IPC. After noticing Section 357, the Court

 

considered earlier decision of this Court in Hari Singh v.

 

Sukhbir Singh & Ors.23 wherein it was observed, `it may

 

be noted that this power of courts to award compensation

 

 

22 (2005) 2 SCC 710

23 (1988) 4 SCC 551

64
is not ancillary to other sentences but it is in addition

 

thereto. This power was intended to do something to

 

reassure the victim that he or she is not forgotten in the

 

criminal justice system. It is a measure of responding

 

appropriately to crime as well of reconciling the victim

 

with the offender. It is, to some extent, a constructive

 

approach to crimes. It is indeed a step forward in our

 

criminal justice system”. Then the court noticed another

 

decision of this Court in Sarwan Singh & Ors. v. State of

 

Punjab24 in which it was observed that in awarding

 

compensation, it was necessary for the court to decide if

 

the case was a fit one in which compensation deserved

 

to be granted. Then the court considered another

 

decision of this Court in Dilip S. Dahanukar v. Kotak

 

Mahindra Co. Ltd. & Anr.25 wherein the court held at Page

 

545 of the Report as under:

 

“38. The purpose of imposition of fine and/or

grant of compensation to a great extent must be

considered having the relevant factors therefor

in mind. It may be compensating the person in

one way or the other. The amount of
24 (1978) 4 SCC 111

25 (2007) 6 SCC 528

65
compensation sought to be imposed, thus, must

be reasonable and not arbitrary. Before issuing a

direction to pay compensation, the capacity of

the accused to pay the same must be judged. A

fortiori, an enquiry in this behalf even in a

summary way, may be necessary. Some reasons,

which may not be very elaborate, may also have

to be assigned; the purpose being that whereas

the power to impose fine is limited and direction

to pay compensation can be made for one or the

other factors enumerated out of the same; but

sub-section (3) of Section 357 does not impose

any such limitation and thus, power thereunder

should be exercised only in appropriate cases.

Such a jurisdiction cannot be exercised at the

whims and caprice of a Judge.”

 

Having regard to the above legal position and the fact

 

that the mother of the victim had no grievance against

 

the appellant therein and she prayed for some

 

compensation, this Court held that a lenient view could

 

be taken in the matter and the sentence of imprisonment

 

could be reduced and, accordingly, reduced the sentence

 

to the period already undergone and directed the

 

appellant to pay compensation of Rs. One lakh to the

 

mother of the victim.

 

78. World Health Organisation in the Global

 

Status Report on Road Safety has pointed out that

 
66
speeding and drunk driving are the major contributing

 

factors in road accidents. According to National Crime

 

Records Bureau (NCRB), the total number of deaths due

 

to road accidents in India every year is now over

 

1,35,000. NCRB Report also states drunken driving as a

 

major factor for road accidents. Our country has a

 

dubious distinction of registering maximum number of

 

deaths in road accidents. It is high time that law makers

 

revisit the sentencing policy reflected in Section 304A

 

IPC.

 

79. The facts and circumstances of the case which

 

have been proved by the prosecution in bringing home

 

the guilt of the accused under Section 304 Part II IPC

 

undoubtedly show despicable aggravated offence

 

warranting punishment proportionate to the crime.

 

Seven precious human lives were lost by the act of the

 

accused. For an offence like this which has been proved

 

against the appellant, sentence of three years awarded

 

by the High Court is too meagre and not adequate but

 
67
since no appeal has been preferred by the State, we

 

refrain from considering the matter for enhancement.

 

By letting the appellant away on the sentence already

 

undergone i.e. two months in a case like this, in our

 

view, would be travesty of justice and highly unjust,

 

unfair, improper and disproportionate to the gravity of

 

crime. It is true that the appellant has paid

 

compensation of Rs. 8,50,000/- but no amount of

 

compensation could relieve the family of victims from the

 

constant agony. As a matter of fact, High Court had been

 

quite considerate and lenient in awarding to the

 

appellant sentence of three years for an offence under

 

Section 304 Part II IPC where seven persons were killed.

 

80. We are satisfied that the facts and

 

circumstances of the case do not justify benefit of

 

probation to the appellant for good conduct or for any

 

reduction of sentence.

 

81. The appeals are, accordingly, dismissed.

 

Appellant’s bail bonds are cancelled. He shall forthwith

 
68
surrender for undergoing the remaining sentence as

 

awarded by the High Court in the Judgment and Order

 

dated September 6, 2007.

 

…………………………… J.

(R. M. Lodha)

 

 

………………………….. J.

(Jagdish Singh

Khehar)

NEW DELHI,

JANUARY 12, 2012.

 

 

69

 

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