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 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 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
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 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.
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 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 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 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 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, 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 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.
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 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 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 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 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 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.
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
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 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 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 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 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. ......”
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 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 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:
“4. Section 304-A 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 under Section 299 IPC or murder
under Section 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 accused 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 under
Section 304 Part II IPC.”
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 different
interpretations to the same.
In the latter case of Naresh Giri it has been held in the Head
note as under:
“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
offences outside the range of Sections 299 and 300 IPC. Section
304 A 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 304-A.
Section 304 A 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 under Section 299 or murder under
Section 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 knowledge 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:-
“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 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 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 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 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. 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
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.
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.
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) 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 (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. 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 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 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 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 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
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 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 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 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 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 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 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 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, 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 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 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, 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.
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.
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 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 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 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 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.”
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
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, 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 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 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 @ 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 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 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 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 dangerous that it
must, in all probability, cause death or such bodily injury as is
likely to cause death, and commits such act without any excuse for
incurring the risk of causing death or such injury as aforesaid.
“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. 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.”
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 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 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 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 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 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 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 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 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.
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, 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
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.
::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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