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  

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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  

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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  

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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  

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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.

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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  

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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  

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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  

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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

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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  

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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  

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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  

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(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.  

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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

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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

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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

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(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)  

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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  

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(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.  

re: 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.    

re: 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  

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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  

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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

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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  

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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

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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

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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

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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  

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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  

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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  

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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.

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