Alister Anthony Pareira V/s.State of Maharashtra -CRIMINAL APPEAL NOS. 1318-1320 OF 2007-JANUARY 12, 2012

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 5x3 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