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               REPORTABLE  

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     1168        OF     2012   [Arising out of S.L.P. (Crl.) No.3292 of 2010]

State Tr.P.S.Lodhi Colony           ....Appellant New Delhi

Versus Sanjeev Nanda          ....Respondent   

J     U     D     G     M     E     N     T   

DEEPAK     VERMA,     J.   1. Delay condoned. 2. Leave granted. 3.   The solitary question that arises for our  

consideration in this appeal is whether  respondent accused deserves to be held guilty  of commission of offence under Section 304 Part  II of the Indian Penal Code (for short IPC) or  the conviction and sentence awarded to him by

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the High Court of Delhi, under Section 304 A of  the IPC should be held to be good and legally  tenable.   

4.     On 12.04.2010, limited notice was issued to  the respondent by this Court, which reads as  under:

     “Issue notice confining to the nature of  offence”.

Facts shorn of unnecessary details as unfolded by  prosecution are mentioned hereinbelow: 5.     On the intervening night of 9/10.01.1999,  

an unfortunate motor accident took place  involving BMW Car No.M-312LYP.   At the  relevant point of time, it is no more in  dispute that offending vehicle BMW was being  driven by respondent.  As per prosecution  story, the said vehicle was coming from  Nizamuddin side and was proceeding towards  Lodhi Road.  Just at the corner from where  Lodhi Road starts, seven persons were standing  

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on the road at about 4.00 a.m.  In the said  car, Manik Kapur and Sidharth Gupta (since  discharged) were also sitting.   

6.      As per prosecution story, Manoj Malik  (P.W.2) had started from his house to leave  friends Nasir, Mehendi Hasan and his friend  Gulab at Nizamudin Railway Station on foot.  When they reached the petrol pump of Lodhi  Road, three police officials of checking squad,  Constables Rajan, Ram Raj and Peru Lal, stopped  them and started checking.  In the meantime,  BMW car driven rashly and negligently came from  Nizamuddin side at a high speed and dashed  violently against them. The impact was so great  and severe, that they flew in the air and fell  on the bonnet and wind screen of the car.  Some  of them rolled down and came beneath the car.  On account of this, accused lost control of the  vehicle which swerved to right side of the road  and ultimately hit the central verge.   The  

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persons who had come under the car were dragged  up to that point.   Manoj (P.W.2) who had  fallen on the bonnet fell down at some distance  but did not come under the wheels.  After  hitting the central verge, car finally stopped  at some distance, respondent came out from the  car and inspected the gruesome site.  It is  said that co-passenger Manik Kapur asked the  accused to rush from the scene of occurrence.  Injured persons were shouting and crying for  help.  But ignoring them, he drove away the car  at high speed towards Dayal Singh College, even  though there were still some persons beneath  the car.  In the said accident ultimately six  of them were killed and Manoj (P.W.2) was  injured.  Accused then took the car to his  friend Sidharth Gupta’s house at 50, Golf  Links, New Delhi.   

7.    Prosecution story further goes to show that  there another accused Rajeev Gupta, father of  

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Sidharth Gupta with the help of two servants,  accused Shyam and Bhola washed the car and  destroyed the material evidence.

8.     Prosecution alleges that PW.1 Hari Shankar,  attendant at the petrol pump saw the accident  and immediately informed telephonically his  employer Brijesh Virmani, (P.W.70) who in turn  informed the PCR at No.100. On getting the  necessary information, police acted with  promptitude.  The telephonic information was  recorded as DD No. 27-A.

9.     Pursuant to the information being received,  SI Kailash Chand reached the spot.   By that  time few PCR vans had already reached as the  news about the accident was flashed. First to  reach the spot was A.S.I. Devendra Singh  (P.W.36), who carried Manoj Malik to the  hospital.   The other PCR vans took the  remaining injured /deceased persons to the  hospital.    

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10. S.I. Kailash Chand (P.W.58) wrote a Rukka  describing the scene of crime. As per his  description, he had found three persons, two  constables Ravi Raj and Rajan and one person  dead on the spot.  He also came to know that  other four injured persons were taken in  another PCR van to the hospital.   He found one  broken number plate and other broken parts of  the car. When plate was reassembled, the number  read as M312LYP BMW.  One black colour piece of  bumper and rear view mirror were found  scattered between 100 to 150 feet.  Head of one  person was found crushed.  There were skid  marks of the tyres of the vehicle on the spot  for a long distance.  The body of another  constable namely, Ram Raj was found crushed and  his right leg was found at a distance of 10 to  15 feet away.   Abdomen of Constable Rajan  Kumar was completely ripped open and blood was  oozing out on the road.  All the three dead  

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bodies were sent to All India Institute of  Medical Sciences (AIIMS) by ambulance.    

11. Thus, it was clear to SI Kailash Chand that  offending vehicle was a black colour BMW car  having the aforesaid number plate.  Looking to  the nature of crime said to have been  committed, he recommended registration of FIR  under Section 338/304 IPC.  The said Rukka was  dispatched to the Police Station, where formal  FIR was registered.

12. S.I. Jagdish Pandey (P.W.13) also reached the  spot.  He found a trail of oil on the road  starting from the scene of offence.  He, thus  followed the trail and was able to reach 50  Golf Links. The gate of the house was closed.  Jagdish P.W.13 peeped through the side hinges  of the gate, and found accused Rajeev Gupta,  Bhola Nath and Shyam Singh washing damaged  black BMW car.  He tried to get the gate  opened, but failed.  He then gave a message to  

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SHO Lodhi Colony, Ms. Vimlesh Yadav who reached  there with S.I. Kailash Chand and the gate was  then got opened. This car was not having any  number plate. The broken pieces collected from  the spot matched with BMW car, other parts  collected from the scene fitted well, at the  respective places where the car was damaged.  Some blood was also noticed in the rear left  wheel of the car. On enquiries being made,  accused Rajeev informed that car belonged to  respondent Sanjeev Nanda, a friend of his son  Sidharth Gupta.    

13.   Thereafter, S.I. Ulhas Giri went to the house  of the accused Sanjeev Nanda at Defence Colony.  He brought accused Sanjeev Nanda, Manik Kapur  and Sidharth Gupta to 50 Golf Links.   All the  accused were sent for their medical  examination.   Respondent accused had sustained  an injury on the lip as noticed by Dr. T.Milo  (P.W. 10) who had prepared the MLC.  He also  

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recorded that he was informed by Head Constable  with regard to history of consuming alcohol  previous night.   He also noted that a smell of  alcohol was present even though, the speech of  accused Sanjeev was coherent but gait unsteady.  Sample of blood was taken on the same day at  about 12.00 noon which was sent for medical  examination and after testing, alcohol presence  of 0.115% milligram per 100 millilitre was  recorded.  This has been proved by Dr.  Madhulika Sharma (P.W. 16).  

14.  It is pertinent to mention that no Breath  Analyzer or Alco meter was used.  Prosecution  has not assigned any cogent or valid reasons  for this default.   

15.  After completion of the investigation, charge  sheet was filed against the accused in the  Court of Additional Sessions Judge, New Delhi.  Respondent was charged under Sections 201, 304  (I), 308 read with 34 of the IPC.  The case was  

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registered as Sessions Case No. 25/1999. 16.   It is important to mention here that in fact,  

all the material witnesses had turned hostile.  P.W.1 Hari Shankar, the alleged eye witness,  P.W.2 Manoj Malik, the injured witness turned  hostile and did not support the prosecution  story.   The infamous Sunil Kulkarni was  examined as court witness, who alone supported  the prosecution story and has been believed by  the Trial Court as trustworthy.  Trial Court  recorded that testimony of this witness alone  as to how the accident took place is worthy of  credence and the same is well corroborated by  the scene of crime.   

17. On conclusion of trial, after appreciating the  evidence available on record, the trial court  found respondent guilty of commission of  offence under Section 304 Part II of the IPC  and awarded him a jail sentence of five years.  He was acquitted of other charges.  However,  

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accused Rajeev Gupta, Shyam Singh and Bhola  Nath were convicted under Section 201 IPC.  Rajeev Gupta was sentenced to undergo a  sentence of one year and Bhola Nath and Shyam  Singh to undergo a sentence of six months each.  

18. Feeling aggrieved by the said judgment and  order of conviction, respondent filed Criminal  Appeal No. 807 of 2008 in the High Court of  Delhi at New Delhi.  Co-accused, Rajeev Gupta,  Bhola Nath and Shyam filed Criminal Appeals No.  767 of 2008 and 871 of 2008 respectively  against their conviction and sentences awarded  to them under section 201 of the IPC.

19.  The learned Single Judge considered the matter  at great length and thereafter found the  accused Sanjeev Nanda guilty of commission of  offence under Section 304 A of the IPC and  reduced the sentence to two years. While  converting the conviction of said accused from  Section 304 Part II to 304 A, the High Court  

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has disbelieved the testimony of Sunil Kulkarni  which was the basis for the trial court to come  to a conclusion that the case fell under  section 304 Part II.  The High Court has also  held that though the act of accused amounted to  rashness and negligence endangering the lives  of others, since there was no intention or  knowledge of causing death, no case for  conviction of accused under section 304 Part II  was made out.

20. Other accused Rajeev Gupta, Shyam and Bhola  were found guilty of commission of offence  under Section 201 of the IPC and were awarded  six months’ and three months’ RI respectively.  As mentioned hereinabove, they have preferred  separate appeals against the said judgment and  order of conviction, which were heard  separately. Their appeals have been allowed and  they have been acquitted of the charge under  Section 201 of the IPC.

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21.  Even though lengthy arguments have been  advanced by learned Additional Solicitor  General Mr. Harin P. Raval, to show the manner  in which the investigation was conducted,  suggesting many lacunae were left in the same,  at the instance and behest of respondent  accused, who not only happens to be a rich  person but influential as well.  Much was also  argued assigning the reasons as to how relevant  and material witnesses (P.W.1) Hari Shankar,  and (P.W.2) Manoj, injured witness, had turned  hostile.  It was also then argued that the  matter was carried to higher court against  every order.  Thus, Respondent tried his best  to see to it that Sessions Trial is not  concluded early.  All these facts have been  mentioned not only by the Trial Court but have  been reiterated by learned Single Judge also.

22. In the light of this, we have heard Mr. Harin  P.Raval learned Additional Solicitor General  

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ably assisted by Mr. Siddharth S. Dave,  Advocate for Appellant and Mr. Ram Jethmalani  learned Senior Counsel with Mr. S. Kapur,  Advocate and other Advocates for the respondent  and have microscopically examined the materials  available on record.

23. The arguments of  Mr. Raval are as follows: a) Admittedly respondent was not holding  

any valid Indian licence to drive a  vehicle in India.

b) As per the evidence of (P.W.10) Dr.  T. Milo, and (P.W.16) Dr. Madhulika,  he was in an intoxicated condition,  at the time of accident.

c) He was driving a powerful machine  like BMW in excessive speed in a rash  and negligent manner and certainly  beyond reasonable control over it.

d) His negligence coupled with  intoxication would lead to culpable  

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homicide with knowledge. e) He knew that persons have been  

crushed and some of them were  underneath his car, yet he continued  to drive the vehicle till all the  injured were disentangled from the  vehicle.

f) He fled away from the scene of crime,  did not render any help to the  injured. Not only this, he did not  report the matter to the police and  tried to obliterate the evidence  available.

g) Even if intention may not be  attributed to him but at least he had  knowledge of what he had done, thus  ingredients mandated under Section  304 Part II IPC were fully met.  

h) Thus, High Court committed grave  error in interfering with a well  

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reasoned order of the Trial Court.  Respondent should thus be held guilty  of commission of offence under  Section 304 Part II IPC and sentence  be awarded accordingly.

24. We have been taken through almost the entire  documentary and oral material evidence adduced  by prosecution.   Following authorities have  been cited by the Appellant to show that such  type of acts would fall precisely under Section  304 Part II of the IPC and not under Section  304 A, as has been held by the learned Single  Judge in the impugned order.

25. These authorities are reported as under: a) (1976) 1 SCC 889 State of Gujarat Vs.  

Haidarali Kalubhai where  distinction  has been drawn with regard to case  falling under Sections 304 A and 304  Part II of the IPC.  In the said  

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judgment, proper and correct effect  of Sections 299 and 300 of the IPC  has also been discussed.    This  judgment has been followed by this  Court in 2008 (1) SCC 791 Naresh Giri  Vs. State of M.P.

b) (1981) 4 SCC 245 Kulwant Rai Vs.  State of Punjab, highlights main and  basic ingredients of Section 304 Part  II.

c) (2000) 5 SCC 82 Dalbir Singh Vs.  State of Haryana, has been cited to  show that as far back as in the year  2000, drunken driving was heavily  criticized and a warning was issued  to all those who may be in the habit,  to be more careful and cautious.  It  further went on to say that no  benefit to the accused found guilty,  can be granted under the Probation of  

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Offenders Act, 1958. d) (2004)  1 SCC 525 State of  

Maharashtra Vs. Salman Salim Khan was  cited to show that in identical  circumstances where the accused was  not holding a valid motor driving  licence and was under influence of  alcohol, he would be  held to have  committed offence under section 304  Part II of the IPC.

e) The last in the series is (2012) 2  SCC 648 Alister Anthony Pareira Vs.  State of Maharashtra to show that  this Court has already taken a stern  view where person involved in  commission of such offence was  driving a vehicle in a drunken  condition and has to be dealt with  severely so as to send proper and  correct message to the society.

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26. On the other hand, Mr. Ram Jethmalani, learned  Senior Counsel appearing for respondent/accused  contended that looking to the facts and  features of the case and taking into  consideration the following mitigating  circumstances, no case for interference is made  out:

a) Offence was said to have been  committed in the year 1999, almost 13  years back.

b) Respondent was aged 21 years at that  time, and was prosecuting his course  in foreign country. He had come to  India on a short holiday.  

c) He has already undergone the sentence  of two years awarded by High Court  and only thereafter, after the period  of limitation of filing the appeal  had expired, he got married to his  long time love, now they are blessed  

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with a daughter. d) His behaviour and conduct in jail was  

extremely good, which is evident from  the two affidavits filed in support  of the respondent by two NGOs.   

e) Fact cannot be given a go-by that it  was a cold wintry night of 9/10th  

January, 1999, thus possibility  cannot be ruled out that visibility  must have been poor due to fog.

f) He had neither any previous criminal  record nor has been involved in any  criminal activity ever since then.  The case of Alister Anthony (supra)  does not apply to the facts of this  case.

g) It was contended that respondent has  already learnt sufficient lesson at  young age and no useful purpose would  be served, if he is sent to jail  

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again. h) The victim and/or families of  

deceased have been paid handsome  amount of compensation of Rs.65 lacs,  in the year 1999 itself, i.e. Rs. 10  lacs each to the families of the  deceased and Rs.5 lacs to the  injured.

i) It would not only be humiliating but  great embarrassment to the  respondent, if he is again sent to  jail for little more period, over and  above the period of two years awarded  and undergone.

j) He had neither intention nor  knowledge of the ultimate  consequences of the offence said to  have been committed.

     Learned Senior Counsel for the Respondent Mr.  Ram Jethmalani further contended that it would not  

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fall within the parameters of Section 304 Part II,  IPC.   The impugned judgment and order calls for no  interference.  Even otherwise, looking to facts and  features of the case, no case for taking any other  view is made out. 27.   After having critically gone through the  

evidence available on record, we have no doubt  in our mind that accident had occurred solely  and wholly on account of rash and negligent  driving of BMW car by the respondent, at a high  speed, who was also intoxicated at that point  of time.  This fact has been admitted by the  Respondent-Accused at the Appellate stage in  the High Court that at the relevant point of  time, Respondent was driving the vehicle and  had caused the accident but even then, it would  be only his rash and negligent act, attracting  Section 304A of IPC only. Even though it is  difficult to come to the aforesaid conclusion,  since he was in an inebriated condition. For  

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the simple reason that he had already driven  almost 16 kms from the place where he had  started,  to the point where he actually met  with the accident without encountering any  untoward incident would not go absolutely in  favour of the Respondent.   There is no  evidence on record that they had consumed more  liquor on their way also.   No such material  objects were recovered from the vehicle, to  suggest that even while driving they were  consuming liquor.   One may fail to understand  if one could drive safely for a distance of 16  kms, then whether the effect of intoxication  would rise all of a sudden so as to find the  respondent totally out of control.   There is  nothing of that sort but it cannot be denied  that he must have been little tipsy because of  the drinks he had consumed some time back. It  is, indeed, extremely difficult to assess or  judge when liquor would show its effect or  

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would be at its peak.  It varies from person to  person.  

28. As mentioned hereinabove, prosecution failed to  use either the Breath Analyser or Alco Meter to  record a definite finding in this regard.  Evidence of (P.W.10) Dr. Milo and (P.W.16) Dr.  Madhulika shows that certain amount of  alcoholic contents was still found on  examination of his blood at 12.00 noon, next  day.   

29. It is a settled principle of law that if  something is required to be done in a  particular manner, then that has to be done  only in that way or not, at all.  In AIR 1936  PC 253 (2)  Nazir Ahmad Vs. King Emperor, it  has been held as follows:

    “......The rule which applies is a  different and not less well recognized  rule, namely, that where a power is  given to do a certain thing in a  certain way the thing must be done in  that way or not at all. ......”

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30. It has also come on record that seven persons  were standing close to the middle of the road.  One would not expect such a group, at least, at  that place of the road, that too in the wee  hours of the morning, on such a wintry night.  There is every possibility of the accused  failing to see them on the road. Looking to all  this, it can be safely assumed that he had no  intention of causing bodily injuries to them  but he had certainly knowledge that causing  such injuries and fleeing away from the scene  of accident,  may ultimately result in their  deaths.   

31. It is also pertinent to mention that soon after  hitting one of them, accused did not apply the  brakes so as to save at least some of the  lives. Since all the seven of them were  standing in a group, he had not realized that  impact would be so severe that they would be  dragged for several feet.  Possibility also  

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cannot be ruled out that soon after hitting  them,  respondent, a young boy of 21 years  then, might have gone into trauma and could not  decide as to what to do until vehicle came to a  halt. He must have then realized the blunder he  committed.  

32.  Respondent, instead of rendering helping hand  to the injured, ran away from the scene, thus  adding further to the miseries of the victims.  It is not a good trend to run away after  causing motor road accidents.  An attempt  should be made to render all possible help,  including medical assistance, if required.  Human touch to the same has to be given.

33. An aspect which is generally lost sight of in  such cases is that bodily injuries or death are  as a consequence of accidents. ‘Accident’  has  been defined by Black’s Law Dictionary as  under:

“Accident: An unintended and  

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unforeseen injurious occurrence;  something that does not occur in the  usual course of events or that could  not be reasonably anticipated.”

Thus, it means, if the injury/death is caused  by an accident, that itself cannot be attributed to  an intention.  If intention is proved and death is  caused, then it would amount to culpable homicide. 34. It is to be noted that in Alister Anthony  

Pareira’s case, the earlier two judgments of  this Court reported in (1976)     1     SCC     889     State    of     Gujarat   Vs. Haiderali Kalubhai, and 2008  (1)     SCC     791     Naresh     Giri     Vs. State     of     M.P.  ,  both rendered by bench of two learned Judges of  this Court, were neither cited nor have been  referred to.  Thus, the ratio decidendi of  these cases has not at all been considered in  Alister’s case.

35. In the former case, it has been held in paras 4  and 5 as under:  

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“4. Section 304-A carves out a specif- ic offence where death is caused by do- ing a rash or negligent act and that act  does not amount to culpable homicide un- der Section 299 IPC or murder under Sec- tion 300 IPC. If a person wilfully  drives a motor vehicle into the midst of  a crowd and thereby causes death to some  persons, it will not be a case of mere  rash and negligent driving and the act  will amount to culpable homicide. Each  case will, therefore, depend upon the  particular facts established against the  accused.

5. The prosecution in this case wanted  to establish a motive for committing the  offence against the sarpanch. It was  sought to be established that there was  enmity between the sarpanch and the ac- cused and his relations on account of  panchayat elections. Some evidence was  led in order to prove that the accused  and his relations were gunning against  the sarpanch for some time after the  latter's election as sarpanch. Even an  anonymous letter was received by the  sarpanch threatening his life which was  handed over to the police by the  sarpanch. Both the Sessions Judge as  well as the High Court did not accept  the evidence appertaining to motive. Mr.  Mukherjee, therefore, rightly and very  fairly did not address us with regard to  that part of the case. Even so, the  learned Counsel submits that the act per  se and the manner in which the vehicle  was driven clearly brought the case un- der Section 304 Part II IPC.”  

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It is further held in the same judgment at  para 10 as under :  

        “10. Section 304-A, by its own  definition totally excludes the  ingredients of Section 299 or Section  300, I.P.C. Doing an act with the intent  to kill a person or knowledge that doing  of an act was likely to cause a person's  death are ingredients of the offence of  culpable homicide. When intent or  knowledge as described above is the  direct motivating force of the act  complained of, Section 304 A has to make  room for the graver and more serious  charge of culpable homicide.”

It is interesting to note that this judgment  had been a sheet anchor of arguments of both the  learned senior counsel appearing for parties.  They  have read it differently and have tried to put dif- ferent interpretations to the same.

In the latter case of Naresh Giri it has been  held in the Head note as under:  

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“Section 304 A IPC applies to  cases where there is no intention to  cause death and no knowledge that the  act done in all probability will cause  death.  The provision is directed at of- fences outside the range of Sections 299  and 300 IPC.  Section 304 A applies only  to such acts which are rash and negli- gent and are directly the cause of death  of another person.  Negligence and rash- ness are essential elements under Sec- tion 304-A.

Section 304 A carves out a spe- cific offence where death is caused by  doing a rash or negligent act and that  act does not amount to culpable homicide  under Section 299 or murder under Sec- tion 300.  If a person willfully drives  a motor vehicle into the midst of a  crowd and thereby causes death to some  person, it will not be a case of mere  rash and negligent driving and the act  will amount to culpable homicide.  Doing  an act with the intent to kill a person  or knowledge that doing an act was  likely to cause a person’s death is  culpable homicide.  When intent or know- ledge is the direct motivating force of  the act, Section 304 A has to make room  for the graver and more serious charge  of culpable homicide.”

We may profitably deal with definition of  ‘Reckless’  as defined in Lexicon, which reads as  under:-

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   “Characterized by the creation of a  substantial and unjustifiable risk of  harm to others and by a conscious (and  sometimes deliberate) disregard for or  indifference to that risk; heedless;  rash. Reckless conduct is much more than  mere negligence: it is a gross deviation  from what a reasonable person would do.  (Black, 7th Edn. 1999)  Intention cannot exist without  foresight, but foresight can exist  without intention.  For a man may  foresee the possible or even probable  consequences of his conduct and yet not  desire them to occur; none the less if  he persists on his course he knowingly  runs the risk of bringing about the  unwished result.  To describe this state  of mind the word “reckless” is the most  appropriate.”   

36. For our own benefit it is appropriate to  reproduce Section 304 of the IPC, which reads  thus:

“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  

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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.”

37. Critical and microscopic analysis thereof shows  that once knowledge that it is likely to cause  death is established but without any intention  to cause death, then jail sentence may be for a  term which may extend to 10 years or with fine  or  with both.

38. Now, we have to consider if it is a fit case  where conviction should be altered to Section  304 Part II of IPC and sentence awarded should  be enhanced.   

39. We are of the considered view that looking to  the nature and manner in which accident had  taken place, it can safely be held that he had  no intention to cause death but certainly had  

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the knowledge that his act may result in death.  40. Thus, looking to the matter from all angles, we  

have no doubt in our mind that knowledge can  still be attributed to accused Sanjeev that his  act might cause such bodily injuries which may,  in ordinary course of nature, be sufficient to  cause death but certainly he did not have any  intention to cause death.  He was not driving  the vehicle with that intention.  There is  nothing to prove that he knew that a group of  persons was standing on the road he was going  to pass through. If that be so, there cannot be  an intention to cause death or such bodily  injury as is likely to cause death.  Thus, in  our opinion, he had committed an offence under  Section 304 Part II IPC.  We accordingly hold  so.

41. Now the greater question that arises for  consideration is if sentence deserves to be  suitably enhanced or the same can be maintained  

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as awarded by the High Court, the period which  the Respondent has already undergone.

42. To do complete justice between the parties we  have to weigh aggravating and mitigating  circumstances to find out on which side justice  tilts more.  

43. In fact, the aggravating and mitigating  circumstances have been mentioned in detail in  the preceding paras. We have given our serious  thought to the whole matter and are of the  considered opinion that mitigating  circumstances as mentioned in para 26  hereinabove are heavier than the aggravating  circumstances.  The balance of justice tilts  more in favour of the accused.

44. In the case in hand, no useful purpose is going  to be served by sending the respondent accused  Sanjeev Nanda to jail once again.  Even though  in the facts and circumstances of the case,  jail sentence awarded to him may not be just  

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and appropriate but as mentioned hereinabove,  the mitigating circumstances tilt heavily in  favour of the accused.

45. In the light of the aforesaid discussion, the  appeal is partly allowed.   The judgment and  order of conviction passed by Delhi High Court  is partly set aside and the order of conviction  of Trial Court is restored and upheld.  Accused is held guilty under Section 304 Part  II of the IPC. Looking to the facts and  circumstances of the same, we deem it  appropriate to maintain the sentence awarded by  the High Court, which he has already undergone.  However, we make it clear that this has been  held so, looking to very peculiar facts and  features of this particular case and it may not  be treated as a precedent of general  proposition of law on the point, for other  cases.  

46. Appeal stands allowed to the aforesaid extent.  

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Accused has already undergone the sentence  awarded to him by the High Court.  Thus, he  need not undergo any further sentence.

......................J [DEEPAK VERMA]

......................J        [K.S. RADHAKRISHNAN]

New Delhi. August 03, 2012   

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     1168     OF     2012   [Arising out of SLP (Crl.) No. 3292 of 2010]

State through Police Station,   Lodhi Colony, New Delhi      .. Appellant(s)

Versus

Sanjeev Nanda           .. Respondent

J     U     D     G     M     E     N     T   

K.     S.     RADHAKRISHNAN,     J.   

Delay condoned.

Leave granted.

1. I had the benefit and privilege of carefully considering the  

judgment delivered by my esteemed brother.  However, I find it  

difficult to agree with some of the findings and observations  

recorded therein, even though I agree with most of the major  

conclusions, however, with a caveat.  I, therefore, deem it fit and  

proper to supplement it with few suggestions and directions.

2. Facts have been meticulously and concisely dealt with by my  

learned Brother and I do not want to burden my judgment with  

those voluminous facts which find a place in the judgment of the  

trial court as well as the High Court.

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3. The controversy in this case had been considerably narrowed  

down since learned senior counsel appearing for the accused –  

Sanjeev Nanda admitted that it was he, who was driving the BMW  

car bearing registration No. M-312 LYP in the early hours of  

10.01.1999, which resulted in the death of six persons, leaving  

another injured.  Admission was made after a prolonged trial,  

spanning over a period of nine years, that too after the trial court,  

appreciating the oral and documentary evidence adduced by the  

prosecution and defence, came to the conclusion that he was guilty  

and convicted him for the offence under Section 304(II) of the IPC  

and sentenced him to undergo rigorous imprisonment for five years.

4. The accident had occurred in early hours of 10.01.1999 near  

the Car Care Centre, Lodhi Road.  Charges were framed against the  

first accused and others on 08.04.1999.  Charges under Sections  

338, 304 of the IPC were framed against the first accused – Sanjeev  

Nanda and another for causing death of six persons and for  

attempting to commit culpable homicide not amounting to murder of  

Manoj Malik.  Another charge was also framed under Section 201/34  

against the first accused and two others for fleeing away from the  

spot with the intention to screen themselves from legal punishment.  

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5. We are in this case primarily concerned with the charge against  

Sanjeev Nanda – the first accused.  Prosecution in order to establish  

the guilt examined 61 witnesses, of which Sunil Kulkarni was given  

up by the prosecution and was examined as a court witness.  Upon  

completion of the prosecution evidence, accused persons were  

questioned and statements of the accused persons were recorded  

under Section 313 of the Cr.P.C.  On the side of the accused, DW1 to  

DW9 were examined.  Documentary evidences such as FSL report  

exhibited as P16/A etc. were also produced.  The trial court vide  

judgment dated 02.09.2008, as already stated, found the first  

accused guilty under Section 304(II) of the IPC and awarded the  

sentence of five years rigorous imprisonment.

6. Aggrieved by the judgment of the trial court, the first accused  

filed Criminal Appeal No. 807 of 2008 before the High Court and the  

High Court after examining the contentions of the parties converted  

the conviction from Section 304(II) to Section 304A of the IPC and  

reduced the sentence to two years.  The accused had already  

undergone the punishment awarded by the High Court and no  

appeal was preferred by him against the judgment of the High Court  

or the findings recorded by the High Court.  The present appeal has  

been preferred by the State contending that the High Court has  

committed an error in converting the conviction from Section 304(II)  

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to Section 304A of the IPC considering the seriousness of charges  

proved and the gravity of the offence.

7. Shri Harin P. Raval, Additional Solicitor General appearing for  

the State, submitted that in the facts and circumstances of the case,  

the High Court was not justified in converting the conviction from  

Section 304(II) to 304A of the IPC, raising various grounds.  

Learned ASG submitted that the High Court had misdirected itself in  

concluding that the facts of the case would not attract 304(II) of the  

IPC.  Shri Raval submitted that it was the first accused who had  

driven the vehicle on a high speed after consuming liquor and that  

too without a licence, causing death of six persons and injuring one,  

leaving them unattended.  Learned ASG further submitted that the  

gravity of the offence was of such a nature that it is touching the  

boundaries of Section 300(4) of the IPC.  Further, it was also pointed  

out by Shri Raval that the knowledge of the second degree  

comprehended from Part-III of Section 299 of the IPC, where death  

is caused by the offender by an act which offender knows is likely to  

cause death, would be attracted.  Reference was made to the  

judgments of this Court in State of Gujarat v. Haidarali Kalubhai  

(1976) 1 SCC 889, Kulwant Rai v. State of Punjab (1981) 4 SCC  

245, State of Maharashtra v. Salman Salim Khan & Another  

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(2004) 1 SCC 525 and Alister Anthony Pareira v. State of  

Maharashtra (2012) 2 SCC 648.  Learned counsel referred to the  

oral and documentary evidence, the scene of crime as narrated by  

Kailash Chand, S.I. in Rukka, as well as site plan and submitted that  

the scene of occurrence, which was horrifying, clearly indicates  

beyond doubt, that the accused had knowledge that the persons  

who were hit by the car might die but left the scene of occurrence  

without caring for human lives.

8. Shri Raval also extensively referred to the oral and  

documentary evidence adduced in this case and submitted that the  

trial court as well as the High Court had concurred in finding that it  

was the accused who had committed the offence over and above  

admission of the first accused.  Prosecution case, it was pointed out,  

mainly rested on the oral evidence of PW1 –  Hari Shankar, an  

employee of petrol pump, PW2- Manoj Malik, injured and an  

employee of a hotel and PW3 –  Sunil Kulkarni,  the court witness  

though, given up by the prosecution.  Further, Shri Raval submitted  

that the evidence of all these witnesses, though turned hostile, have  

to be appreciated in the light of the peculiar facts and circumstances  

of this case and also taking note of the admission of the first  

accused that it was he who had driven the vehicle on the fateful day.  

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Learned Counsel also submitted that the court should appreciate the  

circumstance under which most of the prosecution witnesses turned  

hostile and the incidents which led to the judgment of this Court in  

R.K. Anand v. Registrar, Delhi High Court [(2009) 8 SCC 106]  

cannot be lost sight of, which revealed the unholy alliance, then  

defence counsel had with the special public prosecutor for  

subverting the criminal trial of this case.  PW2, who got injured in  

the accident, turned hostile so as to subvert trial.  Evidently, all  

these were done at the behest of the accused though the  

prosecution was successful in bringing home the guilt of the  

accused, as found by the courts below.

9. Shri Raval submitted that since learned counsel for the accused  

had admitted that it was the first accused who was driving the  

vehicle on the fateful day resulting in the death of six persons, the  

only question that remains to be considered is whether the accused  

deserves proper punishment for the offence committed under  

Section 304(II) of the IPC or whether the conviction or sentence  

awarded by the High Court under Section 304A of the IPC would be  

inadequate punishment, so far as the facts and circumstances of this  

case are concerned.  Shri Raval submitted that the accused deserves  

harsher punishment, as rightly held by the trial court considering the  

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fact that he was driving the vehicle in an inebriated state, without  

licence and that he had left the scene of occurrence without  

extending any helping hand to the victims either by taking them to  

the hospital or reporting the accident to the police at the earliest  

point of time.  Shri Raval placed considerable reliance on the  

evidence of PW-16 and the FSL report proved on record as Exhibit  

16/A and pointed out that the report indicated the presence of  

0.115% alcohol in the blood sample of the accused.  Shri Raval  

submitted that the High Court had correctly understood the scope  

and ambit of Section 185 of the Motor Vehicles Act r/w Section 203  

of the Act and came to a correct conclusion that the presence of  

0.115% alcohol was much above the limit of 30mg prescribed under  

the Motor Vehicles Act and it can definitely affect the ability to drive  

the vehicle in a normal manner.

10. Shri Raval also submitted that the fog and lack of visibility on  

the site projected by the counsel for the accused was rightly  

rejected by the High Court.  Learned counsel pointed out that this  

argument was neither raised before the trial court nor in the grounds  

of appeal taken before the High Court.  Further, PW 15 –  Dr. S.C.  

Gupta’s report had not stated the presence of fog on the site of the  

accident.  On the other hand, PW15 stated that the sky was clear  

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and the mention of mist in the report was of no consequence.  Shri  

Raval submitted that the car was coming in a high speed and  

considering the fact that there was clear visibility, the only  

conclusion possible was that the accused was in a drunken state and  

nobody knew whether he had driven the car 16 kms prior to the  

accident.  Shri Raval, therefore submitted that the High Court was  

not justified in holding that the offence will attract Section 304A of  

the IPC and not 304 (II) of the IPC.

11. Shri Ram Jethmalani, learned senior counsel appearing for the  

respondent –  accused, submitted that the accused had already  

undergone the sentence awarded by the High Court and since no  

sufficient grounds have been made by the prosecution to upset the  

conclusion reached by the High Court that in the facts and  

circumstances of the case, the offence will fall only under Section  

304A of the IPC.  Learned senior counsel submitted that the accused  

had admitted the factum of the accident that, he was driving the  

vehicle on the morning hours of 10.01.1999 so as to give a quietus  

to the entire controversy and to purchase peace for the accused,  

who had undergone agony of the criminal trial for over a decade.

12. Learned senior counsel submitted, the factum of admission  

made by the accused in this regard cannot be put against him or  

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prejudice the court in appreciating various contentions raised in  

defending his case.  Shri Jethmalani, learned senior counsel,  

submitted, though the accident had occurred in the morning hours  

of 10.01.1999, the trial was prolonged due to various reasons –  

mainly due to the lethargic attitude of the prosecution and also due  

to the delay in the court proceedings which cannot be put against  

the accused.  Further, he had already undergone the sentence of two  

years awarded by the High Court and subsequently he got married  

and has also been blessed with a daughter and it will be too harsh to  

punish him with imprisonment for a further term.   

13. Learned senior counsel also pointed out his behavior and  

conduct in jail was also well-acknowledged and he has also not been  

involved in any criminal offence subsequently.  Further, the families  

of the victims were adequately compensated in monetary terms and  

he was only 21 years on the date of the incident.  These factors  

according to the learned senior counsel should weigh with the court  

and the appeal be not entertained.  Learned senior counsel also  

attacked the various findings recorded by the High Court and  

pointed out that since the accused had already undergone the  

punishment, no appeal was preferred in challenging those findings  

and in case where the State is seeking enhancement of the  

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punishment, the accused can always raise his defence against  

various grounds raised by the prosecution in the appeal, since the  

appeal is only the continuation of the trial.   

14. Learned senior counsel pointed various instances of judicial  

unfairness meted out to the respondent.  Reference was made to the  

evidence of Sunil Kulkarni - the court witness.  Learned senior  

counsel pointed out free and fair trial is sine qua non of Article 21 of  

the Constitution of India, which was denied to the accused in the  

instant case.  In support of his contention regarding unfair trial,  

reference was made to the judgment in Jamaica (Constitutional)  

Order as referred in Herbert Bell v. Director of Public  

Prosecutions & Anr. [(1985) A.C. 937], Datar Singh v. State of  

Punjab [(1975) 4 SCC 272], Birdhichand Sarda v. State of  

Maharashtra [(1984) 4 SCC 116]  and Chandran @ Surendran  

and Anr. v. State of Kerala [1991 Supp(1) SCC 39].  Learned  

senior counsel also pointed out that the judgment in R.K. Anand  

(supra) had also influenced the judicial mind, especially that of the  

trial judge and that the High Court has rightly converted the  

conviction from Section 304(II) of the IPC to Section 304A of the  

IPC and that the accused had undergone the punishment.

15. Learned senior counsel also submitted that the prosecution had  

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committed a grave error in suppressing the PCR messages which  

were of great significance for the accused to prove his defence.  

PW2, one of the victims of the accident who was in the Jeep, also  

disclosed various facts which were suppressed by the prosecution.  

Learned senior counsel also pointed out Kulkarni was a totally  

unreliable witness and the statements made by him were given  

importance by the trial court as well as the High Court in reaching  

various conclusions against the accused.

16. Shri Jethmalani submitted there is no evidence on record to  

prove that the accused was intoxicated in the sense in which  

intoxication was understood under Section 85 of the IPC nor in the  

sense of his ability to control the motor vehicle being substantially  

impaired as a result of consuming alcohol as laid down by Section  

185(1) of the M.V. Act.  Further, it was also pointed that the test  

statutorily recognized for drunken driving is the breath analyzer test  

for drunken driving and the accused was not subjected to that test.  

Learned counsel has submitted that when a statute prescribes a  

particular method the prosecution has to follow that method and not  

any other method.  Reliance was placed on the judgments of the  

House of Lords in Rowlands v. Hamilton [(1971) 1 All E.R. 1089],  

Gumbley v. Cunningham [(1989) 1 All E.R. 5], and judgments of  

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the Privy Council in Nazir Ahmad v. Emperor   [AIR 1936 PC 253],  

State of Uttar Pradesh v. Singhara Singh and Ors.   [AIR 1964  

SC 358].  

17. Learned senior counsel also submitted that no reliance could  

be placed on the evidence tendered by PW-16 –  Dr. Madhulika  

Sharma, Senior Scientific Officer as well as the evidence of PW10 –  

Dr. T. Milo and submitted that there is nothing to show the vehicle  

was driven in a reckless or negligent manner so as to infer that the  

accused was drunk.  On the other hand, learned senior counsel  

pointed out that the accused could not have avoided the accident  

since policemen and others were standing on the middle of the road  

on a foggy day when the visibility was poor.  Further, it was pointed  

out that the accused had driven car about 16 kms before the  

accident without any untoward incident, which would indicate that,  

his condition was stable and he had not consumed liquor beyond the  

prescribed limit.   

18. Learned senior counsel also submitted that the evidence of PW  

15 - Dr. S.C. Gupta was also not properly appreciated by the courts  

below, so also the evidence tendered on the presence of fog.  The  

presence of fog, according to the learned senior counsel, clearly  

restricted the visibility and the entire fault cannot be put on the  

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accused.  Reference was also made to the evidence of PW2 on the  

presence of fog on the morning of 10.01.1999.  On the plea of  

excessive speed, learned senior counsel submitted, assuming it was  

so, that itself would not establish that the accused was negligent or  

rash, at the most, there was gross negligence.  Reference was made  

to the judgment of this Court in State of Karnataka v. Satish  

[(1998) 8 SCC 493].

19. Learned senior counsel submitted, in the facts and  

circumstances of the case, no knowledge could be attributed to the  

accused since there was nothing to show that the accused had the  

intention to commit the offence, nor any knowledge can be  

attributed to him and even if it is assumed that he was negligent or  

rash, only section 304A of the IPC would apply and not 304(II) of  

the IPC.  The judgment of this Court in Alister Anthony Pareira  

(supra), according to learned senior counsel, requires  

reconsideration.  Learned senior counsel also submitted that the  

judgment of this Court in Haidarali Kalubhai (supra) would not  

apply to the facts of this case.

20. We may at the outset point out that both the trial court and  

High Court, on appreciation of oral and documentary evidence, came  

to the clear finding that it was the accused who had driven the BMW  

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car at the early hours of 10.01.1999 – the day on which six human  

lives were lost due to the rash and negligent act of the first accused,  

leaving another person injured.  The facts and circumstances of the  

case according to the trial court, as already indicated, would attract  

conviction under Section 304(II) of the IPC but the High Court  

converted the same to Section 304A of the IPC, the correctness of  

which is the main issue that falls for consideration.  We have to first  

examine whether any prejudice had been caused to the first accused  

due to the alleged unfair and delayed trial as contended and who  

was primarily instrumental for the delay in completion of the trial  

and also whether any injustice had been caused to the accused due  

to the alleged judicial unfairness.   

21. The incident had occurred on 10.01.1999 and charge-sheet  

against the accused was filed on 08.04.1999.  Sixty one witnesses  

were examined on the side of the prosecution and nine witnesses  

were examined on the side of the defence and a large number of  

documents were produced including expert evidence before the trial  

court and the court finally rendered its judgment on 02.09.2008.  

When the trial was on, the part played by Sunil Kulkarni, one of the  

eye witnesses, who later turned hostile and the unholy alliance he  

had with the defence counsel etc. were also adversely commented  

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upon by this court in R.K. Anand case (supra). The operative  

portion of which reads as follows:

“Before laying down the records of the case we must also  advert to another issue of great importance that causes  grave concern to this Court. At the root of this odious  affair is the way the BMW trial was allowed to be  constantly interfered with till it almost became  directionless.”

Further, the court held as follows:

“Every trial that fails due to external interference is a  tragedy for the victim(s) of the crime. More importantly,  every frustrated trial defies and mocks the society based  on the rule of law. Every subverted trial leaves a scar on  the criminal justice system. Repeated scars make the  system unrecognisable and it then loses the trust and  confidence of the people.”

22. We do not want to delve much into the background facts in  

R.K. Anand (supra) any further, but only to put a question, but for  

the accused for whose benefit the entire drama was played by  

Anand and Sunil Kulkarni.  We have referred to the above judgment  

since an argument was raised by Shri Ram Jethmalani on the right  

of the accused for speedy trial and on judicial unfairness.  Had the  

first accused been honest enough and wanted early disposal of the  

trial, he would have come out with the truth at the earliest  

opportunity.  Only after a protracted trial that too after examining  

sixty one witnesses and producing and proving a host of documents  

and after having been found guilty and convicted under Section  

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304(II) of the IPC and sentenced to five years rigorous  

imprisonment, wisdom dawned on the accused, that too, at the  

appellate stage.  Learned senior counsel for the accused before the  

High Court then submitted that to narrow down the controversy, the  

accused is admitting the factum of the accident and that he was  

driving the BMW on the fateful morning of 10.01.1999.  The High  

Court recorded the same as follows:

“As already noticed, to narrow down the controversy,  Mr. Ram Jethmalani very fairly conceded at the  threshold of the arguments that he would proceed in  the matter by admitting the factum of the accident and  the appellant being on the driver seat on the fateful  morning of 10th January, 1999, when the horrifying  incident had taken place.  This admission on the part  of the counsel for the appellant would mean that the  appellant gives up his right to challenge the findings of  the Lower Court so far as the factum of accident by the  appellant while driving BMW car bearing registration  No. M312LYP resulted in death of six persons and  injury to one person on the morning of 10th January,  1999 near Car Care Centre petrol pump at Lodhi Road  is concerned, despite the fact that several contentions  have been raised by the appellant denying his  involvement in the accident in the grounds of appeal.”

23. Shri Ram Jethmalani, as already pointed out, submitted that  

the first accused was seriously prejudiced due to the unfair and  

delayed trial, which was also commented upon by the High Court  

which reads as follows:

“In any event of the matter, the appellant himself must  share the burden of causing delay in the matter as  with a view to hoodwink the prosecution and to escape  

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from the clutches of law, he denied the factum of  accident.  It is only at the stage of final arguments  before the trial court and in appeal, the appellant  turned hostile to accept occurrence of the said  horrifying accident while driving BMW car bearing  registration No. M-312-LYP.  Certainly, a lot of time  could have been saved had the accused been honest  from day one and admitted his guilt.”

24. Accused, though did not file any appeal against those findings,  

we heard his senior counsel at length on all points and we do not  

find any illegality in the reasoning of the trial court as well as the  

High Court which we fully concur with.  Learned senior counsel,  

however, after admitting the factum of the accident and that it was  

the accused, who was driving the car on the fateful day, causing  

death of persons, pointed out various factors which according to the  

counsel had contributed to the accident and hence no further  

enhancement of sentence is warranted.   

Drunken     driving    

25. Learned senior counsel, appearing for the accused, as already  

pointed, has stated that there was nothing on record to prove that  

the first accused was intoxicated in the sense in which it is  

understood under Section 85 of the IPC nor in the sense that his  

ability to control the motor vehicle had been substantially impaired  

as a result of consumption of alcohol as laid down by Section 185 of  

the M.V. Act.  Further, it was also stated that the first accused had  

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driven the vehicle about 16 kms prior to the accident.  If he was in a  

drunken state, he could not have driven the car for that much of  

distance.  Further, it was also pointed out that the procedure laid  

down under Section 185 of the M.V. Act was not followed.  

Consequently, learned senior counsel pointed out that the courts  

have committed an error in holding that he was under the influence  

of liquor when the accident had happened.  In our view, both the  

courts below have rightly rejected those contentions raised by  

learned senior counsel.  The scope of Section 185 is not what the  

senior counsel submits.   

Section 185 of the M.V. Act is extracted herein below:

“Section 185 - Driving by a drunken person or by a  person under the influence of drugs

Whoever, while Driving, or attempting to drive, a  motor vehicle,-

(a) has, in his blood, alcohol exceeding 30 mg. per  100 ml. of blood detected in a test by a breath  analyser, or

(b) is under this influence of a drug to such an extent  as to be incapable of exercising proper control over  the vehicle,

shall be punishable for the first offence with  imprisonment for a term which may extend to six  months, or with fine which may extend to two  thousand rupees, or with both; and for a second or  subsequent offence, if committed within three years  of the commission of the previous similar offence,  

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with imprisonment for a term which may extend to  two years, or with fine which may extend to three  thousand rupees, or with both.

Explanation. -For the purposes of this section, the  drug or drugs specified by the Central Government in  this behalf, by notification in the Official Gazette, shall  be deemed to render a person incapable of exercising  proper control over a motor vehicle.”

26. Section 203 of the MV Act deals with Breath Tests.   The  

relevant portion for our purpose is given below:

“203. Breath tests.-  (1) A police officer in  uniform or an officer of the Motor Vehicles Department,  as may be authorized in this behalf by that Department,  may require any person driving or attempting to drive a  motor vehicle in a public place to provide one or more  specimens of breath for breath test there or nearby, if  such police officer or officer has any reasonable cause to  suspect him of having committed an offence under  section 185:

xxx xxx xxx xxx xxx xxx (4) If a person, required by a police officer under  

sub-section (1) or sub-section (2) to provide a specimen  of breath for a breath test, refuses or fails to do so and  the police officer has reasonable cause to suspect him of  having alcohol in his blood, the police officer may arrest  him without warrant except while he is at a hospital as an  indoor patient.

xxx xxx xxx xxx xxx xxx”

Section 205 deals with presumption of unfitness to drive which reads  

as follows:

“205. Presumption of unfitness to drive.- In any  proceeding for an offence punishable under section 185 if  

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it is proved that the accused when requested by a police  officer at any time so to do, had refused, omitted or  failed to consent to the taking of or providing a specimen  of his breath for a breath test or a specimen of his blood  for a laboratory test, his refusal, omission or failure may,  unless reasonable cause therefor is shown, be presumed  to be a circumstance supporting any evidence given on  behalf of the prosecution, or rebutting any evidence given  on behalf of the defence, with respect to his condition at  that time.”

The accused, in this case, escaped from the scene of occurrence,  

therefore, he could not be subjected to Breath Analyzer Test  

instantaneously, or take or provide specimen of his breath for a  

breath test or a specimen of his blood for a laboratory test.  

Cumulative effect of the provisions, referred to the above, would  

indicate that the Breath Analyzer Test has a different purpose and  

object.  The language of the above sections would indicate that the  

said test is required to be carried out only when the person is  

driving or attempting to drive the vehicle.  The expressions “while  

driving”  and “attempting to drive”  in the above sections have a  

meaning “in praesenti”.  In such situations, the presence of alcohol  

in the blood has to be determined instantly so that the offender may  

be prosecuted for drunken driving.  A Breath Analyzer Test is applied  

in such situations so that the alcohol content in the blood can be  

detected. The breath analyzer test could not have been applied in  

the case on hand since the accused had escaped from the scene of  

the accident and there was no question of subjecting him to a breath  

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analyzer test instantaneously.  All the same, the first accused was  

taken to AIIMS hospital at 12.29 PM on 10.01.1999 when his blood  

sample was taken by Dr. Madulika Sharma, Senior Scientific Officer  

(PW16).  While testing the alcohol content in the blood, she noticed  

the presence of 0.115% weight/volume ethyl alcohol.  The report  

exhibited as PW16/A was duly proved by the Doctor.  Over and  

above in her cross-examination, she had explained that 0.115%  

would be equivalent to 115 mg per 100 ml of blood and deposed  

that as per traffic rules, if the person is under the influence of liquor  

and alcohol content in blood exceeds 30 mg per 100 ml of blood, the  

person is said to have committed the offence of drunken driving.   

27. Further, the accused was also examined on the morning of  

10.01.1999 by Dr. T. Milo – PW10, Senior Resident, Department of  

Forensic Medicine, AIIMS, New Delhi and reported as follows:

“On examination, he was conscious, oriented, alert  and co-operative.  Eyes were congested, pupils were  bilaterally dilated.  The speech was coherent and gait  unsteady.  Smell of alcohol was present.”

28. Evidence of the experts clearly indicates the presence of  

alcohol in blood of the accused beyond the permissible limit, that  

was the finding recorded by the Courts below.  Judgments referred  

to by the counsel that if a particular procedure has been prescribed  

under Sections 185 and 203, then that procedure has to be followed,  

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has no application to the facts of this case.  Judgments rendered by  

the House of Lords were related to the provision of Road Safety Act,  

1967, Road Traffic Act, 1972 etc. in U.K. and are not applicable to  

the facts of this case.

29. We are in this case not merely dealing with a traffic violation or  

a minor accident, but an accident where six human beings were  

killed.  we find no relevance in the argument that the accused was  

coming from a distance of 16 kms. before the accident, causing no  

untoward incident and hence it is to be presumed that he was in a  

normal state of mind.  First of all, that statement is not supported  

by evidence apart from the assertion of the accused.  Assuming so,  

it is a weak defence, once it is proved that the person had consumed  

liquor beyond the prescribed limit on scientific evidence.  This court  

in Kurban Hussain v. State [AIR 1965 SC 1616] approved the plea  

that simply because of the fact that no untoward incident had taken  

place prior to the occurrence of the accident, one cannot infer that  

the accused was sober and not in a drunken state.  In the instant  

case, the presence of alcohol content was much more (i.e. 0.115%)  

than the permissible limit and that the accused was in an inebriated  

state at the time of accident due to the influence of liquor and in the  

accident, six human lives were lost.   

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30. Drunken driving has become a menace to our society.  

Everyday drunken driving results in accidents and several human  

lives are lost, pedestrians in many of our cities are not safe.  Late  

night parties among urban elite have now become a way of life  

followed by drunken driving.  Alcohol consumption impairs  

consciousness and vision and it becomes impossible to judge  

accurately how far away the objects are.  When depth perception  

deteriorates, eye muscles lose their precision causing inability to  

focus on the objects.  Further, in more unfavourable conditions like  

fog, mist, rain etc., whether it is night or day, it can reduce the  

visibility of an object to the point of being below the limit of  

discernibility. In short, alcohol leads to loss of coordination, poor  

judgment, slowing down of reflexes and distortion of vision.   

31. Punishment meted out to a drunken driver, is at least a  

deterrent for other such persons getting away with minor  

punishment and fine.  Such incidents are bound to increase with no  

safety for pedestrians on the roads.  The contention raised by  

learned senior counsel that the accused was not under the influence  

of liquor or beyond the limit prescribed under the M.V. Act and he  

was in his senses and the victims were at fault being on the middle  

of the road, is without any substance and only to be rejected.

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Fog,     visibility     and     speed   

32. Learned senior counsel, as already indicated, pointed out that  

the morning of 10.01.1999 was a foggy one and that disrupted the  

visibility.  Reference was made to the report exhibited as PW15/B,  

that of Dr. S.C. Gupta Director of Meteorological Department.  

Learned senior counsel pointed out that the presence of fog is a fact  

supported by the said report.  Further, it was also pointed out that  

PW2 – Manoj Malik had also suggested the presence of fog and the  

absence of street light and all those factors contributed to the  

accident.  It was pointed out by the High Court that even, during the  

course of the arguments, there was no mention of the plea of fog  

nor was the ground taken in the appeal memorandum.  Further, it  

was also pointed out that such an argument was never raised before  

the trial court as well.  No case was built up by the defence on the  

plea of fog and in our view there is no foundation for such an  

argument.   

33. Even going by the evidence of PW15 – Dr. S.C. Gupta and also  

the report exhibited as PW 15/B, there is nothing to show the  

presence of fog on the spot of the accident.  PW15 Dr. Gupta’s  

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report stated the sky was mainly clear and there was no mention of  

the presence of mist or fog at the spot in the report.  The visibility of  

100 m of clear sky was reported by PW 15 in exhibit 15/B which  

would demolish the theory of fog at the spot of the accident and  

poor visibility.  In our view, there is another fallacy in that  

argument.  Assuming that there was presence of fog, it was a duty  

of the accused either to stop the vehicle if the visibility was poor or  

he should have been more cautious and driven the vehicle carefully  

in a lesser speed so that it would not have blurred his vision.  This  

never happened since the accused was in an inebriated state and the  

fact that six persons died practically on the spot would indicate that  

the vehicle was driven in a rash and negligent manner at an  

excessive speed.  The plea of fog, even if its presence had been  

established, would only weaken the defence case and the trial court  

and the High Court had rightly rejected that plea.   

Driving     without     licence   

34. Learned senior counsel, appearing for the accused, submitted  

that the first accused knows driving, though he does not have a  

licence duly issued by a licencing authority under the M.V. Act, 1988.  

Learned senior counsel submitted that the accused had driven the  

vehicle in America and European countries and possesses a valid  

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driving licence issued by the licencing authority of a State in the  

United States at the relevant point of time.  Learned senior counsel,  

therefore, pointed out that the mere fact that he was not holding a  

driving licence would not mean that he does not know driving.   

35. Learned senior counsel also submitted that there is no  

presumption in law that a person who has no licence does not know  

driving.  Further, it was also pointed out that driving without a  

licence is an offence under M.V. Act and not under the Penal Code,  

unless and until it is proved that a person was driving a vehicle in a  

rash and negligent manner so as to attract Section 304A of the IPC.  

Admittedly, the first accused was not having an Indian licence at the  

time of accident though he had produced a licence issued by the  

Licencing Authority from a State in the United States.  A person who  

is conversant in driving a motor vehicle in the United States and  

European countries may not be familiar with the road conditions in  

India.  In India, the driver is always on the defensive due to various  

reasons.  Pedestrians in India seldom use footpaths nor respect  

Zebra lines or traffic lights, two wheelers, auto-rickshaws, cyclists  

and street-vendors are common sights on Indian roads.  A driver in  

Indian roads should expect the unexpected always, therefore, the  

plea that the accused has an American driving licence is not an  

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answer for driving in Indian roads unless it is recognized in India or  

that person is having a driving licence issued by the Licensing  

Authority in India.  We have to necessarily draw an inference that  

the accused was not conversant in driving a vehicle on the Indian  

roads in the absence of an Indian licence at the time of the accident.  

Therefore, the judgment of this Court in Suleman Rahiman Mulani  

and Anr. V. State of Maharashtra [AIR 1968 SC 829] that there is  

no presumption of law that a person who possesses only a learning  

licence or possesses no licence at all, does not know driving is  

inapplicable to the facts of this case.  In any view, in the instant  

case, we have already found that the accused was in an inebriated  

state, therefore, the question whether he knew driving is not of  

much consequence.  

Duty     of     Driver,     Passengers     and     Bystanders   

36. We have found on facts that the accused had never extended  

any helping hand to the victims lying on the road and fled from the  

scene.  Section 134 of M.V. Act, 1988 casts a duty on a driver to  

take reasonable steps to secure medical attention for the injured  

person.  Section 134 of M.V. Act, 1988 reads as follows:

“134. Duty  of  driver  in  case  of  accident  and  injury  to  a  person. –  When  any  person  is  injured  or  any  property  of  a  third  party  is  

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damaged,  as  a  result  of  an  accident  in  which  a  motor  vehicle  is  involved,  the  driver  of  the  vehicle  or  other  person  in  charge  of  the  vehicle  shall –  

(a)  unless it is not practicable to do so on account of  mob  fury  or  any other  reason  beyond  his control,  take all reasonable  steps to  secure  medical  attention  for  the  injured  person, by  conveying  him  to  the  nearest  medical  practitioner  or  hospital, and it shall be the duty of every registered  medical practitioner or the doctor  on the duty in the  hospital  immediately  to  attend  to  the  injured  person  and  render  medical  aid  or  treatment  without  waiting  for  any  procedural  formalities,  unless  the  injured  person  or  his  guardian,  in  case  he is  a minor,  desired  otherwise;  

(b)  give  on  demand  by  a  police  officer  any  information  required by  him  or,  if  no  police  officer  is  present,  report  the  circumstances  of  the  occurrence, including  the circumstances,  if  any,  or  not  taking  reasonable  steps  to  secure    medical  attention    as    required    under  clause (a),  at  the  nearest  police  station  as  soon  as  possible,  and  in  any  case  within  twenty-four  hours  of  the  occurrence;  

(c)  give  the  following  information  in  writing  to  the insurer,  who  has   issued  the  certificates  of  insurance,  about  the  occurrence  of  the  accident,  namely :-  

(i) insurance  policy  number  and  period  of  its  validity;  (ii) date, time and place of accident;  (iii.) particulars  of  the  persons  injured  or  killed  in  the  accident;  (iv.) name of  the  driver  and  the  particulars  of  his  driving  licence.  Explanation. –  For  the  purposes  of  this  section,  the  expression “driver” includes  the  owner  of  the  vehicle.”

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Section 187 of the M.V. Act, 1988 provides for punishment relating  

to accident, which reads as follows:

“187.  Punishment  for  offence  relating to  accident. –  Whoever  fails to  comply  with  the  provisions  of  clause  (c)  of  sub-section  (1)  of  section  132  or  of  section  133  or  section  134  shall  be  punishable  with  imprisonment  for  a  term  which  may  extend  to  three  months,  or  with  fine  which  may  extend  to  five  hundred  rupees,  or  with  both  or,  if  having  been  previously  convicted  of  an  offence  under  this  section,  he  is  again  convicted  of  an  offence  under  this  section,  with  imprisonment  for  a  term  which  may  extend  to  six  months,  or  with  fine  which  may  extend  to  one  thousand  rupees,  or  with  both.”

Of course, no proceedings were instituted against the accused in the  

case on hand invoking the above mentioned provisions, however,  

the unfortunate accident in which six persons were killed at the  

hands of the accused, prompted us to express our deep concern and  

anguish on the belief that, at least, this incident would be an eye-

opener and also food for thought as to what we should do in future  

when such situations arise.  This Court in Pt. Parmanand Katara v.  

Union of India (UOI) and Ors.  [(1989) 4 SCC 286] pointed out  

that it is the duty of every citizen to help a motor accident victim,  

more so when one is the cause of the accident, or is involved in that  

particular accident.  Situations may be there, in a highly charged  

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atmosphere or due to mob fury, the driver may flee from the place,  

if there is a real danger to his life, but he cannot shirk his  

responsibility of informing the police or other authorized persons or  

good samaritans forthwith, so that human lives could be saved.  

Failure to do so, may lead to serious consequences, as we see in the  

instant case.  Passengers who are in the vehicle which met with an  

accident, have also a duty to arrange proper medical attention for  

the victims.  Further they have equal responsibility to inform the  

police about the factum of the accident, in case of failure to do so  

they are aiding the crime and screening the offender from legal  

punishment.

37. No legal obligation as such is cast on a bystander either under  

the Motor Vehicle Act or any other legislation in India.  But greater  

responsibility is cast on them, because they are people at the scene  

of the occurrence, and immediate and prompt medical attention and  

care may help the victims and their dear ones from unexpected  

catastrophe.  Private hospitals and government hospitals, especially  

situated near the Highway, where traffic is high, should be equipped  

with all facilities to meet with such emergency situations.  

Ambulance with all medical facilities including doctors and  

supporting staff should be ready, so that, in case of emergency,  

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prompt and immediate medical attention could be given.  In fact,  

this Court in Paschim Banga Khet Mazdoor Samiti and Ors. V.  

State of West Bengal and Ors. (1996) 4 SCC 37, after referring to  

the report of Justice Lilamoy Ghose, a retired Judge of the Calcutta  

High Court, gave various directions to the Union of India and other  

States to ensure immediate medical attention in such situations and  

to provide immediate treatment to save human lives.  Law  

Commission in its 201st report dated 31.8.2006 had also made  

various recommendations, but effective and proper steps are yet to  

be taken by Union of India and also many State Governments.  We  

call for the immediate attention of the Union of India and other  

State Governments, if they have not already implemented those  

directions, which they may do at the earliest.

38.   Seldom, we find that the passing vehicles stop to give a  

helping hand to take the injured persons to the nearby hospital  

without waiting for the ambulance to come.  Proper attention by the  

passing vehicles will also be of a great help and can save human  

lives.  Many a times, bystanders keep away from the scene, perhaps  

not to get themselves involved in any legal or court proceedings.  

Good Samaritans who come forward to help must be treated with  

respect and be assured that they will have to face no hassle and will  

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be properly rewarded.  We, therefore, direct the Union of India and  

State Governments to frame proper rules and regulations and  

conduct awareness programmes so that the situation like this could,  

to a large extent, be properly attended to and, in that process,  

human lives could be saved.

Hostile     Witnesses   

39. We notice, in the instant case, the key prosecution witnesses  

PW1 – Harishankar, PW2 – Manoj Malik, PW3 – Sunil Kulkarni turned  

hostile.  Even though the above mentioned witnesses turned hostile  

and Sunil Kulkarni was later examined as court witness, when we  

read their evidence with the evidence of others as disclosed and  

expert evidence, the guilt of the accused had been clearly  

established.  In R.K. Anand (supra), the unholy alliance of Sunil  

Kulkarni with the defence counsel had been adversely commented  

upon and this Court also noticed that the damage they had tried to  

cause was far more serious than any other prosecution witness.   

40. Witness turning hostile is a major disturbing factor faced by  

the criminal courts in India.  Reasons are many for the witnesses  

turning hostile, but of late, we see, especially in high profile cases,  

there is a regularity in the witnesses turning hostile, either due to  

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monetary consideration or by other tempting offers which  

undermine the entire criminal justice system and people carry the  

impression that the mighty and powerful can always get away from  

the clutches of law thereby, eroding people’s faith in the system.  

This court in State of U.P. v. Ramesh Mishra and Anr. [AIR 1996  

SC 2766] held that it is equally settled law that the evidence of  

hostile witness could not be totally rejected, if spoken in favour of  

the prosecution or the accused, but it can be subjected to closest  

scrutiny and that portion of the evidence which is consistent with the  

case of the prosecution or defence may be accepted.  In K.  

Anbazhagan v. Superintendent of Police and Anr. [AIR 2004 SC  

524], this Court held that if a court finds that in the process the  

credit of the witness has not been completely shaken, he may after  

reading and considering the evidence of the witness as a whole with  

due caution, accept, in the light of the evidence on the record that  

part of his testimony which it finds to be creditworthy and act upon  

it.  This is exactly what was done in the instant case by both the  

trial court and the High Court and they found the accused guilty.   

41. We cannot, however, close our eyes to the disturbing fact in  

the instant case where even the injured witness, who was present  

on the spot, turned hostile.  This Court in Sidhartha Vashisht @  

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Manu Sharma v. State (NCT o Delhi) [(2010) 6 SCC 1] and in  

Zahira Habibullah Shaikh v. State of Gujarat [AIR 2006 SC  

1367] had highlighted the glaring defects in the system like non-

recording of the statements correctly by the police and the retraction  

of the statements by the prosecution witness due to intimidation,  

inducement and other methods of manipulation.   Courts, however,  

cannot shut their eyes to the reality.  If a witness becomes hostile to  

subvert the judicial process, the Courts shall not stand as a mute  

spectator and every effort should be made to bring home the truth.  

Criminal judicial system cannot be overturned by those gullible  

witnesses who act under pressure, inducement or intimidation.  

Further, Section 193 of the IPC imposes punishment for giving false  

evidence but is seldom invoked.  

Section     304(II)     or     Section     304A     of     the     IPC    

42. We may in the above background examine whether the offence  

falls under Section 304(II) of the IPC or Section 304A of the IPC  

from the facts unfolded in this case.  Shri Raval, appearing for the  

State, as already indicated, argued that the facts of this case lead to  

the irresistible conclusion that it would fall under Section 304(II) of  

the IPC.  Learned counsel pointed out that the accused after having  

noticed that the speeding car had hit several persons, left the spot  

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without giving any medical aid or help knowing fully well that his act  

was likely to cause death.  Learned counsel pointed out that in any  

view, it would at least fall under Section 304(II) of the IPC.  

43. Shri Ram Jethmalani, on the other hand, submitted that  

Section 304(II), will never apply in a case of this nature, especially  

in the absence of any premeditation.  Learned senior counsel  

submitted that the accused entertained no knowledge that his action  

was likely to cause death assuming he was rash and negligent in  

driving the car.  Learned senior counsel pointed out that the offence  

of culpable homicide presupposes an intention or knowledge and the  

intention must be directed either deliberately to put an end to  

human life or to some act which to the knowledge of the accused is  

likely to eventuate in putting an end to human life.  Learned senior  

counsel submitted that the accused had no such knowledge either  

before or immediately after the accident.

44. First we will examine the scope of section 304A of the IPC  

which reads as follows:

“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  

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years, or with fine, or with both.”

On reading the above mentioned provision, the following  

requirements must be satisfied before applying this section:

(i) Death must have been caused by the accused;

(ii) Death caused by rash or negligent act;

(iii) Rash and negligent act must not amount to culpable  

homicide.

Section 304A carves out a specific offence where death is caused by  

doing a rash or negligent act and that act does not amount to  

culpable homicide not amounting to murder under Section 299 or  

murder under Section 300.  Section 304A excludes all the  

ingredients of Section 299 or Section 300.

45. The above mentioned section came up for consideration in  

Haidarali Kalubhai (supra) wherein this Court held as follows:

“Section 304A carves out a specific offence where death  is caused by doing a rash or negligent act and that act  does not amount to culpable homicide u/s 299 IPC or  murder u/s 300 IPC.  If a person willfully drives a motor  vehicle in the midst of a crowd and thereby causes  death to some persons, it will not be a cause of mere  rash and negligent driving and the act will amount to  culpable homicide.  Each case will, therefore, depend  upon the particular facts established against the  accused.”

Before elaborating and examining the above principle laid down by  

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this court, we will refer to sections 299, 300, 304A of the IPC.

Section     299   A person commits culpable homicide if the act by  which the death is caused is done ******** (c) with the knowledge that he is likely to cause death. Section     300   Except in the cases hereinafter excepted, culpable  homicide is murder, if the act by which the death is  caused is done ********  (4) with the knowledge that it is so imminently dan- gerous that it must, in all probability, cause death or  such bodily injury as is likely to cause death, and com- mits such act without any excuse for incurring the risk  of causing death or such injury as aforesaid.

“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.”

46. Section 299 of the IPC defines culpable homicide as an act of  

causing death (i) with the intention of causing death; (ii) with the  

intention of causing some bodily injury as is likely to cause death;  

and (iii) with the knowledge that such act is likely to cause death.  

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The first and second clauses of the section refer to intention apart  

from knowledge and the third clause refers to knowledge apart from  

intention.  “Intention”  and “knowledge”  postulate the existence of  

positive mental attitude.  The expression ‘knowledge’ referred to in  

section 299 and section 300 is the personal knowledge of the person  

who does the act.  To make out an offence punishable under Section  

304(II) of the IPC, the prosecution has to prove the death of the  

person in question and such death was caused by the act of the  

accused and that he knew such act of his is likely to cause death.

47. Section 304A, as already indicated, carves out a specific  

offence where death is caused by doing a rash or negligent act and  

that act does not amount to culpable homicide not amounting to  

murder under Section 299 or murder under Section 300.  The scope  

of the above mentioned provisions came up for consideration before  

this court in the judgment of Naresh Giri v. State of M.P. [(2008)  

1 SCC 791]; wherein this court held as follows:

“Section 304A IPC applies to cases where there is no  intention to cause death and no knowledge that the act  done in all probability will cause death.  The provision is  directed at offences outside the range of Sections 299  and 300 IPC.  Section 304A applies only to such acts  which are rash and negligent and are directly the cause  of death of another person.  Negligence and rashness  are essential elements under Section 304A.”

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48. In a recent judgment, in Alister Anthony Pareira  (supra),  

this Court after surveying a large number of judgments on the scope  

of Sections 304A and 304(II) of the IPC, came to the conclusion that  

in a case of drunken driving resulting in the death of seven persons  

and causing injury to eight persons, the scope of Sections 299, 300  

and 304(I) and (II) of the IPC stated to be as follows:

“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 Indian Penal Code  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 Indian Penal Code.”

On facts, the court concluded as follows:  

“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 Indian  Penal Code 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 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  

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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 Indian Penal Code where  seven persons were killed.”

49. In Jagriti Devi v. State of Himachal Pradesh [(2009) 14  

SCC 771]; wherein the Bench of this Court held that it is trite law  

that Section 304 Part II comes into play when the death is caused  

by doing an act with knowledge that it is likely to cause death but  

there is no intention on the part of the accused either to cause death  

or to cause such bodily injury as is likely to cause death.

50. One of the earlier decisions of this Court in State of Andhra  

Pradesh v. Rayavarapu Punnayya and Another [(1976) 4 SCC  

382], this Court succinctly examined the distinction between Section  

299 and Section 300 of the IPC and in para 12 of the Judgment and  

held as follows:

“In the scheme of the Penal Code, 'culpable homicide'  is genus and 'murder' its specie. All 'murder' is  'culpable homicide' but not vice-versa. Speaking  generally, 'culpable homicide' sans 'special  characteristics of murder', is 'culpable homicide not  amounting to murder'. For the purpose of fixing  punishment, proportionate to the gravity of this  generic offence, the Code practically recognises three  degrees of culpable homicide. The first is, what may  be called, culpable homicide of the first degree. This is  the gravest form of culpable homicide which is defined  in Section 300 as 'murder'. The second may be termed  

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as 'culpable homicide of the second degree'. This is  punishable under the 1st part of Section 304. Then,  there is 'culpable homicide of the third degree.' This is  the lowest type of culpable homicide and the  punishment provided for it is, also, the lowest among  the punishments provided for the three grades.  Culpable homicide of this degree is punishable under  the second Part of Section 304.”

51. Referring to para 14 of that judgment, the Court opined that  

the difference between Clause (b) of Section 299 and Clause (3) of  

Section 300 is one of the degree of probability of death resulting  

from the intended bodily injury. The word "likely" in Clause (b) of  

Section 299 conveys the sense of 'probable' as distinguished from a  

mere possibility.  The words "bodily injury...sufficient in the ordinary  

course of nature to cause death" mean that death will be the "most  

probable" result of the injury having regard to the ordinary course of  

nature.

Ultimately, the Court concluded as follows:

“From the above conspectus, it emerges that  whenever a court is confronted with the question  whether the offence is 'murder' or 'culpable homicide  not amounting to murder,' on the facts of a case, it will  be convenient for it to approach the problem in three  stages. The question to be considered at the first stage  would be, whether the accused has done an act by  doing which he has caused the death of another. Proof  of such causal connection between the act of the  accused and the death, leads to the second stage for  considering whether that act of the accused amounts  to "culpable homicide" as defined in Section 299. If the  answer to this question is prima facie found in the  

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affirmative, the stage for considering the operation of  Section 300, Penal Code is reached. This is [the stage  at which the Court should determine whether the facts  proved by the prosecution bring the case within the  ambit of any of the four Clauses of the definition of  murder' contained in Section 300. If the answer to this  question is in the negative the offence would be  'culpable homicide not amounting to murder',  punishable under the first or the second part of  Section 304, depending, respectively, on. whether the  second or the third Clause of Section 299 is applicable.  If this question is found in the positive, but the case  comes, within any of the Exceptions enumerated in  Section 300, the offence would still be 'culpable  homicide not amounting to murder', punishable under  the First Part of Section 304, Penal Code.”

52. The principle mentioned by this court in Alister Anthony  

Pareira (supra) indicates that the person must be presumed to  

have had the knowledge that, his act of driving the vehicle without a  

licence in a high speed after consuming liquor beyond the  

permissible limit, is likely or sufficient in the ordinary course of  

nature to cause death of the pedestrians on the road.  In our view,  

Alister Anthony Pareira (supra) judgment calls for no  

reconsideration.   Assuming that Shri Ram Jethmalani is right in  

contending that while he was driving the vehicle in a drunken state,  

he had no intention or knowledge that his action was likely to cause  

death of six human beings, in our view, at least, immediately after  

having hit so many human beings and the bodies scattered around,  

he had the knowledge that his action was likely to cause death of so  

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many human beings, lying on the road unattended.  To say, still he  

had no knowledge about his action is too childish which no  

reasonable man can accept as worthy of consideration.  So far as  

this case is concerned, it has been brought out in evidence that the  

accused was in an inebriated state, after consuming excessive  

alcohol, he was driving the vehicle without licence, in a rash and  

negligent manner in a high speed which resulted in the death of six  

persons.  The accused had sufficient knowledge that his action was  

likely to cause death and such an action would, in the facts and  

circumstances of this case fall under Section 304(II) of the IPC and  

the trial court has rightly held so and the High Court has committed  

an error in converting the offence to Section 304A of the IPC.   

53. We may now examine the mitigating and aggravating  

circumstances and decide as to whether the punishment awarded by  

the High Court is commensurate with the gravity of the offence.

54. Mitigating circumstances suggested by the defence counsel are  

as follows:  

(i) The accused was only 21 years on the date of the  

accident, later married and has a daughter;

(ii) Prolonged trial, judicial unfairness caused prejudice;

(iii) The accused has undergone sentence of two years  

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awarded by the High Court and, during that period, his  

conduct and behavior in the jail was appreciated;

(iv) Accident occurred on a foggy day in the early hours of  

morning with poor visibility;  

(v) The accused had no previous criminal record nor has he  

been involved in any criminal case subsequently;

(vi) The accused and the family members contributed and  

paid a compensation of 65 lacs, in total, in the year 1999  

to the families of the victims;

(vii) The accused had neither the intention nor knowledge of  

the ultimate consequences of his action and that he was  

holding a driving licence from the United States.

55. Following are, in our view, the aggravating circumstances  

unfolded in this case:

(i) Six persons died due to the rash and negligent driving of  

the accused and the car was driven with the knowledge  

that drunken driving without licence is likely to cause  

death.

(ii) Much of the delay in completing the trial could have been  

avoided if wisdom had dawned on the accused earlier.  

Only at the appellate stage the accused had admitted  

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that it was he who was driving the vehicle on the fateful  

day which resulted in the death of six persons and delay  

in completion of the trial cannot be attributed to the  

prosecution as the prosecution was burdened with task of  

establishing the offence beyond reasonable doubt by  

examining sixty one witnesses and producing several  

documents including expert evidence.

(iii) The accused did not stop the vehicle in spite of the fact  

that the vehicle had hit six persons and one got injured  

and escaped from the spot without giving any helping  

hand to the victims who were dying and crying for help.  

Human lives could have been saved, if the accused had  

shown some mercy.

(iv) The accused had the knowledge that the car driven by  

him had hit the human beings and human bodies were  

scattered around and they might die, but he thought of  

only his safety and left the place, leaving their fate to  

destiny which, in our view, is not a normal human  

psychology and no court can give a stamp of approval to  

that conduct.

(v) Non-reporting the crime to the police even after reaching  

home and failure to take any steps to provide medical  

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help even after escaping from the site.

56. Payment of compensation to the victims or their relatives is not  

a mitigating circumstance, on the other hand, it is a statutory  

obligation.  Age of 21, as such is also not a mitigating factor, in the  

facts of this case, since the accused is not an illiterate, poor, rustic  

villager but an educated urban elite, undergoing studies abroad.  

We have to weigh all these mitigating and aggravating  

circumstances while awarding the sentence.   

 Sentencing

57. We have to decide, after having found on facts, that this case  

would fall under Section 304 Part II, what will be the appropriate  

sentence.  Generally, the policy which the court adopts while  

awarding sentence is that the punishment must be appropriate and  

proportional to the gravity of the offence committed.  Law demands  

that the offender should be adequately punished for the crime, so  

that it can deter the offender and other persons from committing  

similar offences.  Nature and circumstances of the offence; the need  

for the sentence imposed to reflect the seriousness of the offence;  

to afford adequate deterrence to the conduct and to protect the  

public from such crimes are certain factors to be considered while  

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imposing the sentence.

58. The imposition of sentence without considering its effect on the  

social order in many cases is in reality a futile exercise.  In our view,  

had the accused extended a helping hand to the victims of the  

accident, caused by him by making arrangements to give immediate  

medical attention, perhaps lives of some of the victims could have  

been saved.  Even after committing the accident, he only thought of  

his safety, did not care for the victims and escaped from the site  

showing least concern to the human beings lying on the road with  

serious injuries.  Conduct of the accused is highly reprehensible and  

cannot be countenanced, by any court of law.

59. The High Court, in our view, has committed an error in  

converting the conviction to Section 304A of the IPC from that of  

304(II) IPC and the conviction awarded calls for a re-look on the  

basis of the facts already discussed, otherwise this Court will be  

setting a bad precedent and sending a wrong message to the public.  

After having found that the offence would fall under Section 304(II)  

IPC, not under Section 304A, the following sentence awarded would  

meet the ends of justice, in addition to the sentence already  

awarded by the High Court.

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Community     Service     for     Avoiding     Jail     Sentence   

60. Convicts in various countries, now, voluntarily come forward to  

serve the community, especially in crimes relating to motor vehicles.  

Graver the crime greater the sentence.  But, serving the society  

actually is not a punishment in the real sense where the convicts pay  

back to the community which he owes.   Conduct of the convicts will  

not only be appreciated by the community, it will also give a lot of  

solace to him, especially in a case where because of one’s action and  

inaction, human lives have been lost.   

61. In the facts and circumstances of the case, where six human  

lives were lost, we feel, to adopt this method would be good for the  

society rather than incarcerating the convict further in jail.  Further  

sentence of fine also would compensate at least some of the victims  

of such road accidents who have died, especially in hit and run cases  

where the owner or driver cannot be traced.  We, therefore, order as  

follows:

(1) Accused has to pay an amount of Rs.50 lakh (Rupees  

Fifty lakh) to the Union of India within six months, which  

will be utilized for providing compensation to the victim of  

motor accidents, where the vehicle owner, driver etc. could  

not be traced, like victims of hit and run cases.  On default,  

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he will have to undergo simple imprisonment for one year.  

This amount be kept in a different head to be used for the  

aforesaid purpose only.   

(2) The accused would do community service for two years  

which will be arranged by the Ministry of Social Justice and  

Empowerment within two months.  On default, he will have  

to undergo simple imprisonment for two years.

The Appeal is allowed to the aforesaid extent and the accused  

is sentenced as above.

........………..……………………….……J. (DEEPAK VERMA)

……..…………………….………….J. (K.S. RADHAKRISHNAN)

New Delhi, August 3, 2012

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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.1168         OF     2012   [Arising out of S.L.P. (Crl.) No.3292 of 2010]

State Tr.P.S.Lodhi Colony           ....Appellant New Delhi

Versus

Sanjeev Nanda            ....Respondent

O     R     D     E     R   

1. Delay condoned.

2. Leave granted.

3. In the light of separate judgments pronounced by us  

today, the judgment and order of conviction passed by  

Delhi High Court under Section 304A of the Indian Penal  

Code (IPC) is set aside and the order of conviction of  

Trial Court under Section 304 Part II of the I.P.C. is  

restored and upheld.   However, we deem it appropriate to  

maintain the sentence awarded by the High Court, which  

the accused has already undergone.    

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::2::

4. In addition, the accused is put to the following  

terms:

(1)  Accused has to pay an amount of Rs.50 lakh  

(Rupees Fifty lakh) to the Union of India within  

six months, which will be utilized for providing  

compensation to the victim of motor accidents,  

where the vehicle owner, driver etc. could not be  

traced, like victims of hit and run cases.  On  

default, he will have to undergo simple  

imprisonment for one year. This amount be kept in  

a different head to be used for the aforesaid  

purpose only.   

(2)  The accused would do community service for  

two years which will be arranged by the Ministry  

of Social Justice and Empowerment within two  

months.  On default, he will have to undergo  

simple imprisonment for two years.

The Appeal is accordingly allowed in terms of the  

judgments and this common order.

................................J. (DEEPAK VERMA)                     

................................J. (K.S. RADHAKRISHNAN)               

NEW DELHI, August 03, 2012.

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