Considering the fact that the victim, in the case on hand, was aged about 7 years on the date of the incident and the accused was in the age of 18/19 years and also of the fact that the incident occurred nearly 10 years ago, the award of life imprisonment which is maximum prescribed is not warranted and also in view of the mandate of Section 376(2)(f) IPC, we feel that the ends of justice would be met by imposing RI for 10 years. Learned counsel appearing for the appellant informed this Court that the appellant had already served nearly 10 years.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 309 OF 2012 (Arising out of S.L.P. (Crl.) No. 2967 of 2011) Bavo @ Manubhai Ambalal Thakore .... Appellant(s) Versus State of Gujarat .... Respondent(s) J U D G M E N T P.Sathasivam,J. 1) Leave granted. 2) This appeal is directed against the final judgment and order dated 28.08.2009 passed by the Division Bench of the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 505 of 2004 whereby the High Court while affirming the conviction and sentence awarded by the trial Court dismissed the appeal of the appellant herein. 1 3) Brief facts: (a) According to the Complainant-Ramilaben, on 02.05.2002 in the morning, when her husband had gone to work, she was in her house along with her three children. At that time, her daughter - Smita, aged seven years, was having pain in her finger, therefore, she called her distant relative Bavo @ Manubhai Ambalal Thakore - the appellant herein for taking her to the doctor. (b) Thereafter, the appellant herein took Smita to a doctor at about 10:00 a.m. and at about 11:30 a.m. she returned home alone limping and crying. When the complainant asked her daughter as to what had happened, she narrated the whole incident that how the appellant herein over-powered her and the Complainant finally came to know that he has committed rape on her daughter which was also evident from her condition. Thereafter, the Complainant went to the house of the appellant, but he was not present there. When her husband returned home in the evening, she informed him about the incident and, on 05.05.2002, a complaint was lodged at Umreth Police Station. 2 (c) On 07.07.2002, the police, after conducting the investigation, filed a charge sheet before the Judicial Magistrate, First Class, Umreth. Since the case was exclusively triable by the Court of Sessions, the Judicial Magistrate committed the case to the Court of Additional Sessions Judge, Anand. On 18.03.2004, the Addl. Sessions Judge, convicted the appellant for the offence punishable under Sections 376 and 506(2) of the Indian Penal Code, 1860 (in short "the IPC") and sentenced him to undergo imprisonment for life with a fine of Rs.20,000/-, in default, to further undergo RI for three years. (d) Being aggrieved by the order of conviction and sentence, the appellant herein preferred an appeal before the High Court. The High Court, by order dated 28.08.2009, dismissed the appeal and confirmed the conviction and sentence awarded by the Addl. Sessions Judge. (e) Being aggrieved, the appellant herein has preferred this appeal by way of special leave before this Court. 3 4) Heard Mr. K.S. Bahl, learned counsel for the appellant herein and Ms. Hemantika Wahi, learned counsel for the respondent-State. 5) Learned counsel appearing for the appellant fairly states that he is not challenging the conviction but questioning the quantum of sentence only. According to him, taking note of various factors including the age of the appellant-accused being 18-19 years at the time of the incident and hailing from a poor family, award of life imprisonment and a fine of Rs.20,000/-, in default, to further undergo RI for three years is excessive. Learned counsel appearing for the respondent- State fairly submitted that the Court is free to impose appropriate sentence in terms of Section 376(2)(f) of the IPC. 6) In view of the limited submission, there is no need to go into the finding regarding conviction under Sections 376 and 506(2) of the IPC. The only question to be considered is whether the sentence of life imprisonment and a fine of Rs.20,000/- is reasonable or excessive. 7) Section 376 speaks about the punishment for rape. Sub- section(2)(f) makes it clear that whoever commits rape on a 4 woman when she is under 12 years of age shall be punished with RI for a term which shall not be less than 10 years but which may be for life and shall also be liable to fine. Proviso appended to sub-section (2) makes it clear that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than 10 years. 8) It is clear from the above statutory provision that for the offence of rape on a girl under 12 years of age, punishment shall not be less than 10 years but which may extend to life and also to fine shows that the legislature intended to adopt strictness in awarding sentence if the victim is below 12 years of age. No doubt, the proviso to Section 376(2) lays down that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than 10 years. It is settled law that courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. In the absence of any special and adequate 5 reasons, recourse to proviso mentioned above cannot be applied in a casual manner. 9) Learned counsel for the appellant relied on a decision of this Court in Narayanamma (Kum) vs. State of Karnataka and Others, (1994) 5 SCC 728 and contended that the life imprisonment is not warranted and sentence may be reduced to the period already undergone. The said decision relates to the rape on a minor girl aged 14 years. While the trial Judge convicted and sentenced the accused to three years RI, the High Court reversed the same and acquitted the accused. It was challenged before this Court. After considering the entire materials, this Court set aside the order of the High Court and affirmed the conclusion arrived at by the trial Court. Though this Court expressed displeasure in awarding only three years RI for the crime of rape, taking note of length of time, not inclined to enhance it and confirmed the sentence awarded by the trial Court. 10) Counsel for the appellant relied on another decision of this Court in Rajendra Datta Zarekar vs. State of Goa, (2007) 14 SCC 560. The said case also relates to the offence 6 under Section 376. The victim was aged about 6 years and the accused was aged about 20 years. Ultimately, this Court confirmed the conviction and sentence of 10 years as awarded by the High Court. However, the fine amount of Rs. 10,000/- awarded under Section 376(2)(f) being found to be excessive reduced to Rs. 1,000/-. 11) Considering the fact that the victim, in the case on hand, was aged about 7 years on the date of the incident and the accused was in the age of 18/19 years and also of the fact that the incident occurred nearly 10 years ago, the award of life imprisonment which is maximum prescribed is not warranted and also in view of the mandate of Section 376(2)(f) IPC, we feel that the ends of justice would be met by imposing RI for 10 years. Learned counsel appearing for the appellant informed this Court that the appellant had already served nearly 10 years. 12) Coming to the quantum of fine, in the case on hand, the learned trial Judge has imposed Rs.20,000/-, in default, to undergo RI for three years, learned counsel for the appellant submitted that the accused hails from a poor family and was 7 working as an agricultural labourer and is not in a position to pay such a huge amount as fine which is not disputed by the State. Taking note of all these aspects, we reduce the fine of Rs. 20,000/- to Rs. 1,000/-, in default, to further undergo RI for one month. 13) In view of the above discussion, the conviction imposed on the appellant herein is confirmed. However, the sentence of life imprisonment is modified to RI for 10 years with a fine of Rs.1,000/-, in default, to further undergo RI for one month. 14) With the above modification of sentence, the appeal stands disposed of. ...........................................J. (P. SATHASIVAM) ...........................................J. (J. CHELAMESWAR) NEW DELHI; FEBRUARY 3, 2012. 8

acquittal =Long ago, in England, Lord Justice GODDARD in WOOLMEINGTON Vs. DIRECTOR OF PUBLIC PROSECUTIONS (1935 AC 462), held that onus is upon the prosecution to prove the offence alleged to have been committed by the accused beyond all reasonable doubts. This has become the core of the Anglo-Saxonic Criminal Jurisprudence. 49. Since then there is no shifting of this primary duty cast upon the prosecution. The Indian Legal System is also wedded to this basic principle of English Criminal law. Even, now this is the position of Criminal law in India except to the extent statutorily excluded. For instance, offences against women (Section 113-A, 113-B, Indian Evidence Act, 1872). 50. The necessary corollary is suspicion, however, strong may not take the place of legal proof. A finding of a Criminal Court is acceptable only when it is supported by legal and valid evidence. Dehors that, it deserves rejection lock, stock and barrel.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/01/2012 CORAM THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR And THE HONOURABLE MR. JUSTICE P. DEVADASS Criminal Appeal (MD) No.394 of 2010 Sanjeevan alias Reghu .. Appellant v. The State of Tamil Nadu Rep. By its Inspector of Police Puthukadai Police Station Puthukadai Kanyakumari District. .. Respondent Appeal filed under Section 374 of the Criminal Procedure Code against the judgment of the learned Sessions Judge, Kanyakumari District at Nagercoil in S.C. No.156 of 2007 dated 24.06.2010. !For Appellant ... Mr. N. Dilip Kumar ^For Respondent ... Mr. K.S. Durai Pandian, APP :JUDGMENT P. DEVADASS.J. 1. The appellant Sanjeevan @ Reghu is the accused in S.C. No.156 of 2007, in the Court of Sessions Judge, Kanyakumari Sessions Division at Nagercoil. In this appeal, he challenges, his conviction under Sections 377 and 302 IPC and the sentences imposed upon him. 2. He stood charged under Sections 377, 302 and 201 IPC for having committed sodomy on the boy Legies, for having murdered him and for having concealed his dead body in order to screen himself from legal punishment. 3. After trial, the learned Sessions Judge convicted and sentenced him as under: Sl.No. Conviction Sentence 1. S.377 IPC 10 years Rigorous Imprisonment and fine Rs.15,000/-, in default, undergo simple imprisonment for one year. 2. S. 302 IPC Life Sentence and fine Rs.15,000/-, in default, one year simple imprisonment. The learned Sessions Judge directed that the said sentences shall run concurrently and out of the total fine amount ordered payment of Rs.25,000/- as compensation to PW.1 Lawrence, the father of the deceased boy. 4. The prosecution case proceeded as under:- (1) PW.1 Lawrence and Gresi are spouses. Their sons are Lenies, Lebies and Legies. They are residing in Vannan Vilai, Puthukkadai in Kanyakumari District. Their third son, Legies, is about 13 years old. He was studying VII Standard in St.Mary's Middle School in Puthukkadai. (2) The appellant is also residing nearby. He is a mason. He was married to Geetha Malar. They are having two daughters. There was no love last between the spouses. She left him with the children. He is residing lonely in his newly constructed house. (3) Legies is already known to the appellant. The appellant wanted to satisfy his sexual appetite through him. He was waiting for an opportunity. (4) PW.5 Raviraj, is residing in Panainerunchi Villai, Puthukkadai. On 2.9.2006, around noon, when he was crossing appellant's house, he heard Legies' crying, 'brother open the door'. Appellant opened the door. The boy came out. Appellant told him to come soon, he would give him money for buying ice-cream. Thereafter, PW.5 left for his house. Around 3 pm., in his house, the boy had shower. Then left his house. (5) PW.2 Maria Packiam is also residing in Vannan Vilai, Puthukkadai. She used to collect chit amounts near the Roman Catholic Church in Puthukkadai. On 2.9.2006, after collecting the chit amounts, around 3.10 pm, she came near the appellant's house. She heard shriek from his house. Within few minutes, appellant came out of his house. Closed the doors. PW.2 asked him what had happened. He replied her nothing and left. (6) Around 6 p.m., at the R.C. Church, PW.1's wife and sons Lenies and Lebies told him that Legies is missing. PW.1 enquired the Dance Teacher Adaikala Mary. She told him Legies did not come to dance class. Till night, the boy did not return home. (7) On 3.9.2006, at about 9 a.m., at the south western corner of Amirthain's land, the dead body of Legies was found. It was half naked. No dress below the hip. The dead body was found with shirt (MO.1) and the electronic watch (MO.2). PW.1 seen the dead body of his son. (8) At about 10 a.m., at the Puthhukkadai Police Station, PW.1 gave Ex.P1 complaint to PW.17 Ramesh Babju, Sub Inspector of Police. He registered a case of suspicious death under Section 174 Cr.P.C (Ex.P.19 FIR). PW.17 sent the FIR through PW.13 Head Constable, Joseph Raj to Judicial Magistrate No.II, Kuzhithurai. Since the Magistrate was on leave, around 12.40 am., he handed over the FIR to the Incharge-Judicial Magistrate, Thucklay. (9) On receipt of a copy of FIR, Subramony, Inspector, Puthukkadai Police Station took up his investigation. [Subramony is no more. Since PW.17 assisted him in investigating this case and knows his signature, PW.17 also has been examined to speak to Subramony's investigation of this case]. (10) At about, 10.30 a.m., at Amirtainan's land, in the presence of PW.3 Henrydhass and one Justin Paulraj, Inspector Subramony prepared Ex.P.2 Observation Mahazar-1. Recovered six bloodstained dried jack-fruit tree leaves (MO.3) under Ex.P.3 Mahazar. Drew rough sketch-1 (Ex.P.20). Examined the witnesses. Recorded their statement. In the presence of Panchayathars, held inquest over the dead body (Ex.P.21 Inquest Report). Sent the dead body through PW.14 Head Constable, Sobana Kumar with Ex.P.10 requisition to the Government Medical College Hospital at Asaripallam, Nagercoil for autopsy. (11) At about 3.30 p.m., PW.10, Dr. Velmurugan, conducted autopsy. He noted the following :- Appearances found at the post-mortem: Moderately nourished boy of a male with finger and toe nails blue in colour. Postmortem ant bite marks seen over the front of neck and chest. Eggs of flies found laid around the mouth, neck and groins. Dried blood stain seen over both nostrils, mouth, cheek and eyes. Anus found relaxed. Ante-mortem injuries: 1. Abrasion with contusion 4 x 2 cm over the left eyelid. The lid edematous. 2. 5 x 4 cm abrasion seen over right side of forehead. 3. Abrasion with contusion 6 x 5 cm over right cheek. 4. Abrasion 5 x . cm over the neck. 5. Abrasion 10 x 5 cm over right cheek. 6. Abrasion 6 x 4 cm over left side of cheek. 7. Abrasion with contusion 6 x 2 cm over right shoulder. 8. Abrasion 5 x 4 cm middle of chest. 9. Scratch abrasion of varying sizes over an of 20 x 12 cm over the front of left thigh. 10. Abrasion 4 x 2 cm over the front of middle of neck. 11. Abrasion 2 x 2 cm front of left knee. Chest and Abdomen: Bruising seen over upper half of sternum. About 100 ml of blood with clots seen in the thoracic cavity. Heard contused, both lungs contused. Contusion seen on inner aspect of ribs on the right side. About 200 ml of blood with clots seen in the abdominal cavity. Contusion of right lobe of liver note. Retro peritoneal clots seen over both sides of abdomen. Part of Duodenum and colour contused. Scalp Skull & Dura: Scalpal bruising with contusion over frontal, right parietal and temporal regions. The right temporal is muscle found bruised. Diffused sub Drual Haemorrhage, Sub Arachnoid Haemorrhage seen over both cerebral hemispheres. On thin dissection of neck bruising seen over inner aspect of neck. Hyoid bone: Intact. Stomach: About 250 gms of partially digested identifiable food particles (rice, banana and tender coconut with pungent odour. Mucosa congested). (12). PW.10 opined that the boy would appear to have died of multiple injuries and sequlae (Ex.P.12 final opinion). (13). On 16.9.2006, PW.7 Chandra, VAO, Painkulam was holding additional charge of Arudesam village. On 16.9.2006, in his office, at about 9.30 a.m., appellant gave him Ex.P.5 confession that on the evening of 2.9.2006, in his house, he had sodomised Legies, killed him and during night thrown away his dead body in the nearby land. PW.7 recorded it. Appellant signed it. PW.8 George and Vijayakumar, Village Assistants, attested it. (14). At about 10.30 a.m, at the Puthukkadai Police Station. PW.7 handed over the sodomite and Ex.P.5 extra-judicial confession to Inspector Subramony. He arrested him. Altered the section of law to Section 302 and 201 IPC. Sent the alteration memo to the court. (15). Appellant gave Ex.P.6 confessional statement to the Investigating Officer that if he is taken to certain places, he would show him the occurrence place, places where the dead body, boy's dress and his lungi, blanket and two empty tender coconuts were kept. (16). From Ponnappan's land, appellant produced an ash colour pant (MO.4). The Inspector seized it under Ex.P.7 Mahazar in the presence of PW.8 and Vijayakumar. (17). The appellant took the Investigating Officer to his house. In the presence of PW.4 Yesudhas and one Subash, the Inspector prepared Ex.P.4 Observation Mahazar-II. Drew Ex.P.22 Rough Sketch -II. He produced hair pieces (MO.6), woollen blanket (MO.7) and lungi (MO.8). In the presence of said witnesses, the Inspector seized them under Ex.P.9 Mahazar. (18). Through Court, the Inspector sent his requisition to conduct potency test to the accused (Ex.P.14 Court's letter). With the consent of appellant, PW.11 Dr.Rajesh conducted the test. He opined that the appellant was capable of performing sexual intercourse (Ex.P.13 Certificate). (19). The Inspector produced the appellant to the Judicial Magistrate for judicial custody. Sent the case-properties to the Lab through Court, for analysis. The Serologist found blood in MO.1 shirt (Ex.P.17). (20). Concluding his investigation, the Inspector filed Final Report for offences under sections 377, 302 and 201 IPC. 5. Prosecution examined PWs 1 to 17, marked Ex.P1 to 23 and exhibited MOs 1 to 8. 6. Placing reliance on the various circumstances projected by the prosecution through PWs.2 and 5. Ex.P.5 extra-judicial confession and Section 27 Evidence Act recoveries, on 24.6.2010, the learned Sessions Judge, came to the conclusion that the appellant committed buggery on the catamite Legies, killed him and thus convicted him under section 377 IPC and under section 302 IPC and sentenced him as already stated. 7. The said findings and sentences were assailed by Mr.N.Dilip Kumar, learned counsel for the appellant as under :- 1) The findings of the trial court are sans any legal evidence. 2) None of the circumstance has been proved. 3) PWs.2 and 5 did not tell anybody that they have seen the deceased near the appellant's house. They are liars. 4) There must be medical evidence that the appellant had committed pederasty. But, there is no medical evidence. The medical evidence let in is also contrary to the allegations made against the appellant. 5) The extra-judicial confession is false and not voluntary. That has been forcefully obtained with the assistance of obliging witnesses PWs.7 and 8 to fasten criminal liability to appellant. 6) Section 27 Evidence Act recovery is consequent upon the said concocted extra-judicial confession. 8. Per contra, Mr. K.S. Durai Pandian, learned Additional Public Prosecutor submitted that appellant had exhibited his virile behaviour by having anal intercourse with a young boy and to conceal his such human depravity, silenced him once for all. The boy suffered cruel death at his hands. He confessed to his crime to PW.7, VAO. It is voluntary and reliable and also has been corroborated by PW.8. There is medical evidence and also recovery of incriminating articles from the appellant's house. All goes to show that the appellant is the person who is responsible for the boy's untimely death. 9. P.W.1 is residing with his family in Vannan Vilai Veedu in Puthukkadai in Kanyakumari District. His third son, Legies, about 13 years old was studying VII Standard in St.Mary's Middle School in Puthukkadai. From the evening of 2.9.2006, the boy was missing. On the next day, at about 9 a.m., his half-naked dead body was found in one Amirthaian's land in Vannan Vilai. 10. The appellant is accused of, after committing sodomy on the boy, killed him and on the night stealthily disposed of his body in one Amirthaian's land in Vannan Vilai. 11. There is no ocular witness to these serious allegations. To establish the charges against the appellant, prosecution relied on several circumstances. According to prosecution, they are incriminating in nature and goes to inculpate the appellant with the offences alleged as against him. 12. In Krishnan v. State represented by Inspector of Police (2008 (4) Supreme 25), on the aspect of circumstantial evidence, Hon'ble Supreme Court observed as under :- "This Court in a series of decisions has consistently held that, 'when a case rests upon the circumstantial evidence, such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence'. (See Gambhir v. State of Maharashtra AIR 1982 SC 1157)". 13. Recently, in Kulvinder Singh and another v. State of Haryana, (2011) 5 SCC 258, Hon'ble Supreme Court observed as under: " It is a settled legal proposition that conviction of a person in an offence is generally based solely on evidence that is either oral or documentary, but in exceptional circumstances conviction may also be based solely on circumstantial evidence. The prosecution has to establish its case beyond reasonable doubt and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are in themselves complete. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The same should be of a conclusive nature and exclude all possible hypothesis except the one to be proved. Facts so established must be consistent with the hypothesis of the guilt of the accused and the chain of evidence must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (Vide Sharad Birdhichand Sarda v. State of Maharashtra and Paramjeet Singh v. State of Uttarakhand.)". 14. Thus, each circumstance must be proved beyond all reasonable doubts. [See Sanatan Naskar and Another vs. State of West Bengal (2011) 1 MLJ 687 (Crl.) (SC).] The proved circumstances must form a complete chain unerringly proceeding towards the only conclusion that the accused is the author of the crime excluding any hypothesis of innocence in his favour. There should not be any missing link. 15. To inculpate the appellant, prosecution relies on the following circumstances :- i. On the occurrence day, PW-5 has seen the boy shouting from the appellant's house. ii. On the occurrence day, PW-2 heard strange shriek from the appellant's house. iii. Medical evidence. iv. Extra-judicial confession of the appellant. v. Section 27 Evidence Act recovery of MOs 4,5, 7 and 8. 16. PW.5 Raviraj, is residing in Panainerunchi Vilai in Puthukkadai. His evidence is that, on 2.9.2006, around 2 pm., while he was crossing appellant's house, near the southern side window, in the house, the boy Legies was crying, "brother open the door, brother open the door". Appellant opened the door. The boy came out. He told him to return soon and he would give him money for buying ice-cream. After noticing this, PW.5 left the place. On the next day, at about 9 a.m., the half naked dead body of the boy was found in Amirthaian's land. 17. PW.5, is a close relative of the deceased boy. PW.5 's house is at about 100 ft. away from Puthukkadai Police Station. Puthukkadai bus stand is also nearby. Because of such a death of the boy, the whole village plunged into deep sorrow. PW.5 was available in the village. He did not tell this tell-tale circumstance to anyone till 6.9.2006, when the police enquired him. His statement recorded under section 161 CrPC, was also sent to Court only on 9.1.2007 along with the Final Report. In the circumstances, we cannot place reliance on his such evidence. 18. The next incriminating circumstance has been projected through the evidence of PW.2 Maria Packiam. She is residing in Vannan Vilai Veedu in Puthukkadai. It is very near to the boy's residence. She used to collect chit amounts at the Roman Catholic Church in Puthukkadai. It is her evidence that on 2.9.2006, at about 2.30 p.m., while she came near the appellant's house, she heard unusual shriek from his house. Within few minutes, the appellant came out, closed the door and started proceeding. When she asked him, what had happened, he replied her nothing and left. On the next day morning, she heard that the boy, Legies was found dead. 19. PW.2 did not say it is the shriek of a boy. On the next day morning, though the whole village knows about the cruel death of the boy, PW.2 did not tell that tell-tale circumstance to anyone till 19.09.2006, when police enquired her. Her statement also reached the Court along with Final Report only on 9.1.2007. Thus, she does not inspire confidence in her. It is quite unsafe to act upon her evidence. This circumstance spoken to through her also has not been established. 20. For a charge under Section 377 IPC, medical evidence is required. It involves medical examination of the appellant and the boy. The boy is dead. His dead body was examined to see whether he was sexually abused. 21. Modi, in his Text Book, 'Medical jurisprudence and Toxicoloy', 24th edition, Wadhwa Publication, at page 682, with regard to medical evidence in cases of unnatural sexual offences under Section 377 IPC comments as under:- "Examination of the Passive Agent" (in this case the boy) (i) Abrasions on the skin near the anus with pain in walking and on defecations, as well as during examination. These injuries are extensive and well defined in cases where there is a great disproportion in size between the anal orifice of the victim and the virile member of the accused. Hence, lesions will be most marked in children, while they may be almost absent in adults when there is no resistance to the anal coitus. These injuries, if slight heal very rapidly in two or three days. (ii) Owing to strong contraction of the sphincter the penis rarely penetrates beyond an inch, and consequently, the laceration produced on the mucous membrane within the anus with more or less effusion of blood is usually triangular in nature, having its base at the anus and the sides extending vertically inwards into the rectum. (iii) Blood may be found in or at the anus, on the perineum or thighs and also on the clothes. (iv) Semen may be found in or at the anus, on the perineum, or on the garments of the boy too young to have seminal emissions. Examination of the Active Agent: (the appellant) Non conclusive signs are evident, unless the man is examined soon after the commission of the crime. In that case, there may be an abrasion on the prepuce, glans penis, or fraenum, and stains of faecal matter or lubricant may be found on the penis or on the loincloth or trousers. Where no semen was found on the clothes, either of the accused or of the boy, and no, injuries were found on their persons, a case of unnatural offence was not made out [Ganpat v. Emperor, AIR 1918 Lah 322]." 22. Thus, forcible anal intercourse by an adult man with a boy will have the presence of bloodstains around anus area. At the material time when the virile behaviour of the appellant arose and indulged in homosexual activity in all probability the appellant was prone to ejaculate and there will be presence of semen in his private part area. In such circumstances, possibility of presence of semen in his clothes generally be expected unless the clothes were washed or active steps were taken to cause the disappearance of evidence of sexual violenc. But, in this case, appellant did not wash his clothes. 23. In Ex.P.5 Extra-judicial confession, it is mentioned that the appellant had attempted to sodomise the boy and the boy avoided him. The sexual desire in the appellant arose. When the boy shouted at him, the appellant gagged him, pinned him down on the ground, removed his pant, inserted his penis into his anus. 24. On 3.9.2006, PW.10 Dr.Velmurugan conducted autopsy on the dead body of the boy. In Ex.P.11, Post-mortem certificate, PW.10 mentioned that "the anus found relaxed". PW.11 Dr. Rajesh examined the appellant and mentioned that the appellant's penis length is 9 c.m., circumference is 9 c.m. He is 35 years old. (Ex.P.13 Certificate). The boy was only 13 years old. PW.10 did not see any bloodstains around the boy's anal area, no injury or rupture in the thigh area, buttocks adjacent to the anal area. 25. PW-10's evidence also suggests that if forcible carnal intercourse was attempted, there would be rupture of the anal entry point but when he examined the boy, he did not find any injury in the anal area. When one dies there will be discharge of gas through all the openings in the body such as nostrils and anal. In such circumstances, the exit entry of the anal canal used to get relaxed. It is due to the discharge of gas from inside the dead body through the anal orifice. In his cross-examination, PW.10 confirms that the anal having been found relaxed may be due to various reasons. PW.10 did not say positively that it is because of anal intercourse attempted or completed on the boy. 26. In Ex.P.5 Extra Judicial confession, it is mentioned that when the boy started shouting, the appellant pressed the boy's neck, pushed his head on the wall, pushed him down, kicked on his neck and abdomen repeatedly. So, by these over acts, there should have been fracture in skull, internal and external rupture, internal injury in the abdomen. 27. PW.10 found no injury on the head, area just inside the abdomen in the dead body. Thus, there is no medical evidence as to the alleged commission of unnatural offence on the boy and killing him thereafter as stated in Ex.P.5 Extra-Judicial confession. 28. The next incriminating circumstance relied on by the prosecution is extra-judicial confession of the appellant. It is stated that on 16.9.2006, at about 9.30 a.m., before PW.7 Chandra, VAO, Painkulam, appellant surrendered and requested him to save him and gave confession admitting his guilt and that was attested to by PW.8 George and Vijayakumar, Village Assistants. 29. Nowhere in his Indian Evidence Act, 1872, Sir James Fitz James Stephen employed the phraseology "extra-judicial confession". However, the phrase, "confession", is employed in Sections 25 to 29 of the Act. Section 17 of the Act defines, "Admission". Confession is also a form of admission. It may be either culpatory or non-culpatory. No amount of confession made to police is admissible except to the extent provided in Section 27 of the Evidence Act, namely, so much of information distinctly relates to the discovery of a fact. Admission of guilty, in other words, confession by the accused is best form of evidence. The concept of extra-judicial confession emanated from Section 24 of the Act. As to its reliability, there are certain parameters or conditions precedent. 30. In State of Rajasthan v. Raja Ram, (2003) 8 SCC 180, it was observed as under :- "An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility." 31. In S. Arul Raja v. State of Tamil Nadu, (2010) 8 SCC 233, popularly known as Aladi Aruna murder case, on the aspect of extra-judicial confession, our Hon'ble Apex Court observed as under :- " The concept of an extra-judicial confession is primarily a judicial creation, and must be used with restraint. Such a confession must be used only in limited circumstances, and should also be corroborated by way of abundant caution. This Court in Ram Singh v. Sonia has held that an extra- judicial confession while in police custody cannot be allowed. Moreover, when there is a case hanging on an extra-judicial confession, corroborated only by circumstantial evidence, then the courts must treat the same with utmost caution. This principle has been affirmed by this Court in Ediga Anamma v. State of A.P and State of Maharashtra v. Kondiba Tukaram Shirke". 32. In Sk. Yusuf v. State of W.B.,(2011) 11 SCC 754, at page 762, on the aspect of extra-judicial confession, the Honourable Supreme Court has observed as under :- "The Court while dealing with a circumstance of extra-judicial confession must keep in mind that it is a very weak type of evidence and requires appreciation with great caution. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witness must be clear, unambiguous and clearly convey that the accused is the perpetrator of the crime. The "extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility". (See State of Rajasthan v. Raja Ram and Kulvinder Singh v. State of Haryana.)." 33. Keeping the above guidance in our mind, now we shall approach the Extra-judicial confession pressed into service in this case. 34. In Ex.P.5, appellant gave his full life history, details of his children, his mother, his wife, his dispute with her, their living away from him, his job abroad, his construction of a new house in Vannan Vilai Veedu, how he developed acquaintance with the boy Legies, the boy's family details, his carnal activity towards the boy, the buggery committed on the boy, his murdering of him, stealthily disposing of his dead body and his appeal to VAO to save him. In his evidence, PW.7 Chandra VAO reiterated the above minute details. 35. The appellant belongs to Vannan Vilai in Puthukkadai. It comes under the jurisdiction of VAO, Arudesam Village. PW.7 is the VAO of Painkulam Village. Vannan Vilai does not belong to his jurisdiction. On 16.9.2006, he is stated to have held additional charge of Arudesam village. At the village level, the post of VAO is very important, as he has to discharge and attend to multifarious functions. So, VAO of one area cannot simply come and occupy the chair of another VAO. No written proof from a superior officer, such as Tahsildar, placing PW.7 in additional charge of VAO, Arudesam village has been produced. 36. Till 16.09.2006, PW-7 is an utter stranger to the appellant. Appellant had no prior acquaintance with him. Nothing has been produced or explained as to the appellant reposing confidence in such a stranger/ PW.7 to reveal everything to him. Ex.P-5 contains photographic details of the whole life history and all the matters pertaining to the prosecution case. According to prosecution, then the appellant was in distress. It is unlikely that a person placed in such a sorrowful situation will choose an utter stranger to recount from A to Z concerning commission of sodomy and murder. In the circumstances, it looks very odd. 37. In Jaspal Singh v. State of Punjab, (1997) 1 SCC 510, at page 513, the Hon'ble Apex court held that the prosecution has to show as to why and how the accused had reposed confidence on a particular person to give the extra-judicial confession. 38. In Ravi @ Ravichandran and another v. State, through the Inspector of Police, Steel Plant Police Station, Salem, 2007 (1) LW (Crl.) 555, it was observed as under : " But, in this case, it is found that there is no evidence to show that the Village Administrative Officer was known to A.1. Unless a person trusts another, there is no question of unburdening his heart to such a person. Therefore, we straight away reject the untrustworthy testimony of the Village Administrative Officer, PW.9 that A.1 voluntarily confessed the crime to him.' 39. In Jaswant Gir v. State of Punjab, (2005) 12 SCC 438, the Hon'ble Apex court held as under : " The first and foremost aspect which needs to be taken note of is, that PW.9 is not a person who had intimate relations or friendship with the appellant. PW.9 says that he knew the appellant "to some extent" meaning thereby that he had only acquaintance with him. In cross- examination, he stated that he did not visit his house earlier and that he met the appellant once or twice at the bus-stand. There is no earthly reason why he should go to PW.9 and confide to him as to what he had done.' 40. In Sunny Kapoor v. State (UT of Chandigarh), (2006) 10 SCC 182, it was observed as under : "It is wholly unlikely that the accused would make extra-judicial confession to a person whom they never knew. It also appears to be wholly improbable that unknown persons would come to seek his help unless he was known to be close to the police officers. His statements, thus, do not even otherwise inspire confidence.' 41. In the case before us, there is absolutely no material to show why appellant had reposed confidence in PW.7, to give extra-judicial confession. The prosecution has also miserably failed to produce any material to show that the accused was having close acquaintance with PW.7. 42. To corroborate the evidence of PW.7., PW.8 George Village Administrative Assistant, Ezhudesam Village has been examined. PW.8 and Vijayakumar have attested Ex.P.5 Extra-judicial confession. They were not employed either in Painkulam village or in Arudesam village. He was employed in Ezhudesam village. Between Ezhudesam and Painkulam, the distance is about 4 kms. On that day, PW.8 and Vijayakumar were asked to be present in Ezhudesam village in connection with distribution of free TVs. However, PW8 and Vijayakumar were brought to Painkulam VAO's office through a person. Arudesam itself has separate VAO. It has Village Assistants also. Why PW.8 and Vijayakumar should come all the way from Ezhudesam village to Painkulam to attest Ex.P.5 Extra-judicial confession, has not been explained. The Extra-judicial confession is stage managed, manufactured to inculpate the appellant. It is not genuine. It is not voluntary. It is highly unsafe to act upon. It deserves to be excluded from our consideration. 43. The last circumstance relied on by the prosecution is Section 27 Evidence Act recovery of MOs 4 to 8. 44. On 16.09.2006, at about 10.30 a.m, at the Puthukkadai Police station, PW.7 Chandra, VAO handed over the appellant with Ex.P.5 Extra-judicial confession to Inspector Subramony. He arrested him. Recorded his confession, Ex.P.6, that if he is taken to certain places he will produce his lungi, pant, woolen blanket and used empty tender coconuts. It was attested to by PW.8 and Vijayakumar. In pursuance of that MO.4 ash colour pant has been seized under Ex.P7 from Ponnappan's land in Vannan Vilai, from appellant's house, MO.5 empty tender coconuts, MO.6 hair pieces, MO.7 woolen blanket and MO.8 lungi were recovered under Ex.P.9 Mahazar, in the presence of PW.8 and Vijayakumar. 45. MO.8 lungi is stated to have been worn by the appellant while committing anal intercourse with the boy. There was no presence of semen in the lungi. MO.7 woolen blanket is stated to have been used by the appellant to conceal the boy's dead body. There was no blood in it. (Ex.P.16 Scientific Report). 46. On 3.9.2006, on dissection of the dead body, PW.10 Dr.Velmurugan found partially digested identifiable food particles which included tender coconut (Ex.P.11 post-mortem certificate). To correlate it, on 16.9.2006, in Ex.P.5 Extra-judicial confession it is stated that around 1 p.m., appellant gave him tender coconuts. To strengthen it, empty tender coconut has been mentioned in Ex.P.6 confession and recovery of the same from the front side of appellant's house under Ex.P.8 Mahazar in the presence of PW.8 George and Vijayakumar, Village Assistant also has been mentioned. 47. Above all, recovery of MOs. 4 to 8 is immediately after Ex.P.5 extra- judicial confession. When Ex.P.5 itself is tainted, this Section 27 Evidence Act recovery must also go. This circumstance also goes away. 48. Long ago, in England, Lord Justice GODDARD in WOOLMEINGTON Vs. DIRECTOR OF PUBLIC PROSECUTIONS (1935 AC 462), held that onus is upon the prosecution to prove the offence alleged to have been committed by the accused beyond all reasonable doubts. This has become the core of the Anglo-Saxonic Criminal Jurisprudence. 49. Since then there is no shifting of this primary duty cast upon the prosecution. The Indian Legal System is also wedded to this basic principle of English Criminal law. Even, now this is the position of Criminal law in India except to the extent statutorily excluded. For instance, offences against women (Section 113-A, 113-B, Indian Evidence Act, 1872). 50. The necessary corollary is suspicion, however, strong may not take the place of legal proof. A finding of a Criminal Court is acceptable only when it is supported by legal and valid evidence. Dehors that, it deserves rejection lock, stock and barrel. 51. It is appropriate here to note the following observations of Hon'ble Supreme Court made in, Rathinam v. State of T.N., (2011) 11 SCC 140, at page 145 : "We must, however, understand that a particularly foul crime imposes a greater caution on the court which must resist the tendency to look beyond the file, ?. It has been emphasised repeatedly by this Court that a dispassionate assessment of the evidence must be made and that the Court must not be swayed by the horror of the crime or the character of the accused and that the judgment must not be clouded by the facts of the case. In Kashmira Singh v. State of M.P. it was observed as under: (AIR p.160, para 2) "2. The murder was a particularly cruel and revolting one and for that reason it will be necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law." 24. Likewise in Ashish Batham v. State of M.P., it was observed thus: (SCC p. 327, para 8) "8. Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between 'may be true' and 'must be true' and this basic and golden rule only helps to maintain the vital distinction between 'conjectures' and 'sure conclusions' to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record." 52. No doubt, very serious charges have been made as against the appellant. We are very serious of they being proved by valid and legal evidence. Suspicion and surmises cannot be substituted for the same. None of the circumstances projected by prosecution has been proved. Everywhere the chain of circumstances woven by the prosecution is found broken. There is no connecting link. They do not form a complete chain unerringly implicating the accused with the charges framed against the appellant. 53. In view of the foregoings, the findings recorded by the learned Sessions Judge, Kanyakumari Sessions Divisions at Nagercoil cannot be sustained. Appellant is not guilty of the charges framed under section 377 and 302 IPC. He is entitled to be acquitted. 54. In the result, the Criminal Appeal is allowed. The conviction recorded and the sentences awarded to the appellant in S.C. No. 156 of 2007 on 24.06.2010 by the Sessions Judge, Kanyakumari Sessions Division at Nagercoil are set aside. The appellant shall be released immediately, if he is no longer required for any other case/ proceedings/ order. Fine amount, already paid shall be refunded to the appellant. asvm/avr To 1. The Sessions Judge, Kanyakumari District at Nagercoil. 2. The District Collector, Kanyakumari District at Nagercoil. 3. The Superintendent, Central Prison, Madurai. 4. Inspector of Police, Puthukadai Police Station, Puthukadai, Kanyakumari District.

unlawful assembly -Section 149 has two parts. First part deals with the commission of an offence by a member of unlawful assembly in prosecution of the common object of that assembly and the second part deals with the liability of the members of the unlawful assembly who knew that an offence was likely to be committed in prosecution of the object for which they had assembled. Even if the common object of the 14

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1840 of 2008 Onkar & Anr. ...Appellants Versus State of U.P. ...Respondent J U D G M E N T Dr. B.S. CHAUHAN, J. 1. This appeal has been preferred against the judgment and order dated 23.8.2007 passed by the High Court of Allahabad in Criminal Appeal No. 1096 of 1982, qua the appellants by which the judgment and order of the Trial Court dated 16.4.1982 in Sessions Trial No. 277 of 1980, of their conviction under Section 302/149; 307 read with Section 149 and Section 452 of Indian Penal Code, 1860 (hereinafter called `IPC') has been upheld and sentence awarded by the Trial Court for life imprisonment for the offence under Section 302/149; seven years for the offence under Section 307/149; and three years' rigorous imprisonment under Section 452 IPC has been maintained. 2. Facts and circumstances giving rise to this appeal are as under: A. An FIR was filed on 23.3.1980 at 2.50 A.M. with the Police Station Harduwaganj, District Aligarh that on 22-23/3/1980 at about 12 O'clock, Jalsur (PW.2) - complainant and his Uncle Onkar Singh (deceased) were sleeping on the roof of their house in their village Kidhara. The appellants came to the house of complainant alongwith other accused persons. One Jagdish who was having a shop in the outer room of the complainant's house, woke up after hearing the sound of the movement of appellants and accused persons and raised alarm and took to his heels. Jalsur (PW.2) and his uncle Onkar Singh (deceased) also woke up. Onkar Singh (deceased) climbed down from the roof towards Chabutara while Jalsur (PW.2) jumped in the adjoining house of his uncle Bahori and came out in the open and set fire to a "chappar" in front of his own house. It was in the light of the fire made on account of burning of "Chappar", that Jalsur (PW.2) saw the accused Bira, Tara, Onkar, Rati Ram and some 7-8 unknown persons. The appellants were armed with country made pistols and other assailants were armed 2 with lathi, bhala and other lethal weapons. A scuffle took place between the assailants and Onkar Singh (deceased) and he received a gun shot injury on his chest and died. Some of the assailants climbed down into the house of the informant and tried to break open the doors of the rooms but on their failure to do so, they opened fire on the doors and some of them entered the rooms through ventilators. The firing caused injuries to the informant's son Chandra Bose and daughter Tarwati. On seeing pressure mounting, the culprits pushed the deceased (Onkar) into the fire of the "Chappar" which had been set ablaze by the informant. B. On the basis of the said FIR, investigation commenced and I.O. N.P. Singh (PW.6) came at the place of occurrence and collected seven empty shells of 12 bore cartridges alleged to have been fired by the miscreants. He also recorded the statement of witnesses. Site plan was prepared. Blood stained earth and sample of ash of burnt Chappar was collected. The injured persons were sent for medical examination and treatment. Dead body of Onkar Singh was sent for post-mortem. The Investigating Officer arrested Mohd. Shafi, Ahmad Syeed and Suresh on 25.3.1980 and other accused persons subsequently. The Test Identification parade of four accused, namely, Omveer, Suresh, Ahmad Sayeed, and Mohd. Shafi 3 was conducted and the accused were identified by the witnesses, namely, Roshan Singh, Shishu Pal, Hukam Singh and Jalsur on 17.5.1980. The Investigating Officer filed chargesheet dated 14.1.1981 against 7 accused persons, namely, Bira, Tara, Onkar, Mohd. Shafi, Omveer, Ahmad Sayeed and Suresh. C. The Trial Court framed the charges on 14.1.1981 against all the 7 accused persons under Sections 147, 302/149, 307/149 and 452 IPC. So far as the present appellants and accused Bira are concerned, an additional charge was framed against them under Section 148 IPC. To prove the case, prosecution examined large number of witnesses including Jalsur (PW.2), Shishu Pal (PW.3) and Bani Singh (PW.4) as eye-witnesses of the occurrence. D. The accused persons, namely, Bira, Tara, Onkar and Omveer when examined under Section 313 of the Code of Criminal Procedure (hereinafter called Cr.P.C.) took the plea that they had falsely been implicated because of their previous enmity as 5-6 years prior to the incident, an attempt was made on the life of Shishupal, uncle of the complainant Jalsur (PW.2) and in that case accused Tara, his brother Mahabir and father Munshi faced trial and stood convicted under Section 307 IPC and they served the sentence. It was further submitted that Tara, Bira and Onkar were closely related 4 to each other. In respect of another incident, Jalsur (PW.2) had filed a complaint against Tara and Mahabir under Section 395 IPC but the said case ended in acquittal. The other accused persons took the defence that they had enmity with the police and had falsely been implicated in the case. E. After appreciating the evidence on record and considering all other facts and circumstances of the case, the Trial Court vide judgment and order dated 16.4.1982 convicted all the 7 accused persons and awarded the sentence as mentioned hereinabove in S.T. Case No.277 of 1980. Aggrieved, all the 7 convicts preferred Criminal Appeal No.1096 of 1982 before the High Court of Allahabad. F. During the pendency of the said appeal, Omveer, Ahmad Sayeed and Suresh died and thus, their appeal stood abated. At the time of hearing the appeal, it stood established that Bira was a child on the date of occurrence and therefore, his conviction was maintained but sentence was set aside giving benefit under the provisions of Section 2(4) of the U.P. Children Act, 1951. The appeal of remaining three convicts, namely, Tara, Onkar and Mohd. Shafi stood dismissed vide impugned judgment. Mohd. Shafi did not prefer any appeal. Hence, this appeal only by two convicts. 5 3. Shri S.B. Upadhyay, learned Senior counsel appearing for the appellants has submitted that injured witnesses, namely, Tarawati and Chandra Bose have not been examined. Similarly, independent eye-witnesses, namely, Roshan Singh and Hukum Singh whose presence at the scene of occurrence had been witnessed by Jalsur (PW.2) himself were not examined. Jagdish who had raised hue and cry immediately after hearing the sound of coming of the accused persons on the spot has also not been examined. Only close relatives of Onkar Singh (deceased) have been examined. Therefore, the prosecution withheld the material evidence in its possession. In the facts and circumstances of the case, the provisions of Section 149 IPC were not attracted. The prosecution miserably failed to prove that there was unlawful assembly constituted for the purpose of executing a common object. The prosecution case itself had been that the prime object was to commit dacoity and not murder of Onkar Singh (deceased). In the deposition, Jalsur (PW.2) had made a statement in the court that Rati Ram was involved in the killing of Onkar Singh (deceased) and his name also finds place in the FIR lodged by Jalsur (PW.2) but no chargesheet has been filed against him. In view of the above, the appeal deserves to be allowed. 6 4. Per contra, Shri D.K. Goswami, learned counsel appearing for the State has vehemently opposed the appeal contending that the FIR had promptly been lodged within a period of 3 hours after mid- night though the police station was at a distance of 3 miles from the place of occurrence. The appellants had been named in the FIR. Roles attributed to each of them had been explained. Motive had also been mentioned. Injuries suffered by Tarawati and Chandra Bose had also been given. Law does not proscribe reliance upon the evidence of closely related witnesses. However, it requires that evidence of such witnesses must be appreciated with care and caution. Once the evidence is found reliable/trustworthy, it cannot be discarded merely on the ground that the witness has been closely related to the victim. The injuries found on the person of the deceased as well as on Tarawati, Chandra Bose and Mohd. Shafi corroborate the case of the prosecution and in such a fact-situation, the provisions of Section 149 IPC have rightly been applied. The issue of non-examination of the injured witnesses, namely, Tarawati and Chandra Bose and of eye-witnesses, namely, Roshan Singh, Hukum Singh and Jagdish has not been put to the Investigating Officer in cross-examination who could have furnished the explanation for their non-examination. Thus, the issue cannot be 7 raised first time in appeal before this Court. The appeal lacks merit and is liable to be dismissed. 5. We have considered the rival submissions made by learned counsel for the parties and perused the record. 6. Before we enter into the merits of the case, it may be relevant to refer to the injuries caused to the victims. (a) The post mortem examination of the dead body of Onkar Singh, son of Sher Singh, was conducted by Dr. Pradeep Kumar (P.W.7) on 23.3.1980 at about 5.15 a.m. and he found following ante mortem injuries on his person:- 1. Gun shot wound of entry of left nipple 1" x 1" x chest cavity deep, margins inverted, blackening and tattooing present around the wound part of lung coming out of the wound. 2. Abrasion 3" x l" on the top of left shoulder. 3. Abrasion 1" x = on the right elbow. 4. Abrasion 2" x l" on the right iliac spine region. 5. Abrasion 1 = "x =" on left iliac spine region. 6. Abrasion 3 "x 1" on upper part of right leg. 7. Abrasion < "x <" on middle part of left leg. 8. Abrasion 2" x l" on the right side of back. 9. Superficial burn on left side of chest and abdomen. 8 On the internal examination, 3rd, 4th, 5th, 6th, 7th, ribs on the left side were found fractured. In the right lung 800 ml of dark blood and 12 pellets were recovered. Left lung was lacerated and 8 pieces of wadding were recovered. In large intestine gases and faecal matters were found. In the opinion of the doctor, death had occurred due to shock and haemorrhage due to ante mortem injuries and duration of death was > day to one day. (b) Dr. D.P. Singh (P.W.1) of PHC Harduwaganj had examined the injuries of Tarwati, daughter of Jalsur (PW.2) on 23.3.1980 at 1.15 p.m. and following injuries were found by him:- 1. Lacerated circular pellet wound 1/8" x 1/8"' x muscle deep on the anterior aspect of scalp exactly in the midline of head. 2. Lacerated circular wound 1/8" x 1/8" x muscle deep on the left side of scalp away from the midline and 2 >" above the left eye brow. 3. Lacerated circular wound 1/8" x 1/8" x muscle deep on the right of scalp, 1" behind the injury No.3. The injuries, in the opinion of the doctor, were simple and were caused by fire arm and it was half day old. (c) Chandra Bose, son of Jalsur (PW.2) was examined by Dr. D.P. Singh (PW.1) on 23.3.1980 at 1.20 p.m. and the following injuries were found by him:- 9 1. Lacerated circular wound 1/8" x 1/8" x muscle deep on the right side of face, 1 =" in front of the lower angle of right mandible. 2. Lacerated circular wound 1/8" x 1/8" x muscle deep on the right side of scalp. 4 =" above the base of right ear and 1 =" away from mid line. 3. Lacerated circular wound 1/8" x 1/8" x muscle deep on the left side of scalp. =" away from mid line and 2 = " above the left eye brow. 4. Lacerated circular wound 1/8" x 1/8" x muscle deep on the left side of scalp 1" behind the injury no.3. All the injuries were simple in nature and were caused by fire arm and their duration was about half a day old. (d) Dr. D.P. Singh (PW.1) examined the injuries of Mohd. Shafi on 26.3.1980 at 11.15 a.m. and the following injuries were found on his person:- 1. Circular wound 1/8" x 1/8" x muscle deep on the front aspect of right forearm 4" below the level of right elbow joint. 2. Multiple circular wound 1/8" x 1/8" x muscle deep on the front and lateral aspect of right upper arm 12 in numbers in an area 8" x 5" between the shoulder and elbow joint. 3. Three circular wounds 1/8" x 1/8" x muscle deep each in an area of 3 = x 2" on the right shoulder joint. 4. Multiple circular wounds 1 /8" x 1/8" x muscle deep, 5 in numbers, extending in a linear fashion starting from 3 =" above the right nipple to the lower part of 9th rib at a place 6 =" away from mid line of back. 10 In the opinion of the doctor, all the injuries were simple and were caused by fire arm. Duration of these injures was found to be 3 = days which is corresponding to the date of incident. 7. The prosecution has examined 3 eye-witnesses. According to Jalsur (PW.2), the victims' side had earlier filed criminal cases against some of the accused persons. In one case, they had been convicted and in another case they had been acquitted. In so far as this incident is concerned, Jalsur (PW.2) has fully supported the case of the prosecution. This witness deposed that accused Bira was having a gun and the present appellants were having country made pistols and the other accused were armed with lathi and ballom etc. In order to save himself from the assailants, Jalsur (PW.2) jumped in the house of his uncle and Onkar Singh climbed down from the roof. The accused had a scuffle with Onkar Singh who suffered a gun shot injury. The accused also tried to break the door of the room of Onkar Singh and when the door was not broken, they fired the shot at the door and bullets from the ventilation of the home due to which Chandra Bose and Tarawati, son and daughter of Jalsur (PW.2) suffered fire injuries. In this incident, Mohd. Shafi also got injured. His evidence is totally corroborated by Shishu Pal (PW.3) and Bani Singh (PW.4). 11 It is a settled legal proposition that evidence of closely related witnesses is required to be carefully scrutinised and appreciated before resting of conclusion the convict/accused in a given case. In case, the evidence has a ring of truth, is cogent, credible and trustworthy it can be relied upon. (Vide: Himanshu v. State (NCT of Delhi), (2011) 2 SCC 36; and Ranjit Singh & Ors. v. State of Madhya Pradesh, (2011) 4 SCC 336). There is nothing on record to show that at the time of cross-examination of the Investigating Officer (PW.6), any of the accused had put him a question as to why the other witnesses have not been examined. 8. Injuries reports so referred to hereinabove stood proved by Dr. D.P. Singh (PW.1) and Dr. Pradeep Kumar (PW.7) in the court and they corroborate the prosecution version. In spite of the fact that the accused Mohd. Shafi got injured but no grievance has ever been raised by him in this regard. The Trial Court has rightly taken note of it and reached the correct conclusion that it supports the case of the prosecution and establish the presence of Mohd. Shafi at the place of occurrence and he participated in the crime. Mohd. Shafi himself could not explain as under what circumstances such injuries have been caused to him. 12 9. The courts below have reached the correct conclusion that it is highly improbable that the witnesses would screen and spare the real assailants and falsely enroped the appellants and others only because of old enmity. Had it been so, there could have been no reason to involve at least four other accused persons in the crime, particularly, Mohd. Shafi, Suresh, Ahmad Sayeed and Omveer. Admittedly, he lodged the FIR most promptly within a period of 3 hours of the incident at 2.50 A.M. though the police station was at a distance of 3 miles from the place of occurrence. So far as the present appellants are concerned, they have specifically been named. The other co-accused who were not the residents of the village where the offence has been committed, had been duly identified in Test Identification Parade as well as in court by all the three eye-witnesses. 10. We do not find any force in the submission made by Shri Upadhyay, learned Senior counsel that in the facts and circumstances of the case provisions of Section 149 IPC were not attracted, for the reason, that this court has been very cautious in the catena of judgments that where general allegations are made against 13 a large number of persons the court would categorically scrutinise the evidence and hesitate to convict the large number of persons if the evidence available on record is vague. It is obligatory on the part of the court to examine that if the offence committed is not in direct prosecution of the common object, it may yet fall under second part of Section 149 IPC, which states that if the offence was such as the members knew was likely to be committed. Further inference has to be drawn as to the number of persons involved in the crime; how many of them were merely passive witnesses; what arms and weapons they were carrying alongwith them. Number and nature of injuries is also relevant to be considered. "Common object" may also be developed at the time of incident. (See : Ramachandran & Ors. v. State of Kerala (2011) 9 SCC 257). 11. In Chandra Bihari Gautam & Ors. v. State of Bihar, AIR 2002 SC 1836, this Court while dealing with a similar case held as under: "Section 149 has two parts. First part deals with the commission of an offence by a member of unlawful assembly in prosecution of the common object of that assembly and the second part deals with the liability of the members of the unlawful assembly who knew that an offence was likely to be committed in prosecution of the object for which they had assembled. Even if the common object of the 14 unlawful assembly is stated to be apprehending Nawlesh Singh only, the fact that the accused persons had attacked the house of the complainant at the dead of the night and were armed with deadly weapons including the guns, and used petrol bombs proves beyond doubt that they knew that in prosecution of the alleged initial common object murders were likely to be committed. The knowledge of the consequential action in furtherance of the initial common object is sufficient to attract the applicability of Section 149 for holding the members of the unlawful assembly guilty for the commission of the offence by any member of such assembly. In this case the appellants, along with others, have been proved to have formed unlawful assembly, the common object of which was to commit murder and arson and in prosecution of the said common object they raided the house of the informant armed with guns and committed offence. The Courts below have, therefore, rightly held that the accused persons formed an unlawful assembly, the common object of which was to commit murder of the informant and his family members and in prosecution of the said common object six persons were killed. The appellants were also proved to have hired the services of some extremists for the purposes of eliminating the family of the complainant." (See also: Ramesh v. State of Haryana, AIR 2011 SC 169) 12. The witnesses have deposed that not a single article was looted nor any attempt had been made to commit dacoity, rather it has been specifically stated that all the assailants/miscreants declared that no one would be left alive and had been exhorting one another to eliminate all. All the assailants came together and participated in the crime in which Onkar Singh was killed, Tarawati 15 and Chandra Bose were injured. The assailants tried to break open the door of the house but could not succeed, thus they fired from the ventilator and that is why Tarawati and Chandra Bose got injured. After commission of the offence a large number of persons gathered at the place of occurrence. The assailants ran away. The offence was committed at mid-night. Therefore, after reading the entire evidence collectively inference can safely be drawn that the assailants had an object to commit murder of persons on the victims' side and they participated in the crime. 13. Thus, the graveness of charges against the appellants that they in concert with other accused to achieve a common object entered into the house of the complainant stood proved. 14. In view of the above, we do not find any force in the appeal. Facts and circumstances of the case do not warrant any interference in the matter. The appeal lacks merit and is, accordingly, dismissed. ................................J. (Dr. B.S. CHAUHAN) ............................. ...J. (T.S. THAKUR) New Delhi, January 18, 2012 16

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

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 1318-1320 OF 2007 Alister Anthony Pareira ...Appellant Versus State of Maharashtra ...Respondent JUDGEMENT R.M. LODHA, J. On the South-North Road at the East side of Carter Road, Bandra (West), Mumbai in the early hours of November 12, 2006 between 3.45 - 4.00 a.m., a car ran into the pavement killing seven persons and causing injuries to eight persons. The appellant - Alister Anthony Pareira - was at the wheels. He has been convicted by the High Court for the offences punishable under Sections 304 Part II, 338 and 337 of the Indian Penal Code, 1860 (IPC). 2. The prosecution case against the appellant is this: the repair and construction work of the Carter Road, Bandra (West) at the relevant time was being carried out by New India Construction Company. The labourers were engaged by the construction company for executing the works. The temporary sheds (huts) were put up for the residence of labourers on the pavement. In the night of November 11, 2006 and November 12, 2006, the labourers were asleep in front of their huts on the pavement. Between 3.45 to 4.00 a.m., that night, the appellant while driving the car (corolla) bearing Registration No. MH-01-R-580 rashly and negligently with knowledge that people were asleep on footpath rammed the car over the pavement; caused death of seven persons and injuries to eight persons. At the time 2 of incident, the appellant was found to have consumed alcohol. A liquor bottle was recovered from the appellant's car. On his medical examination, he was found to have 0.112% w/v liquor (ethyl alcohol) in his blood. The appellant was fully familiar with the area being the resident of Carter Road. 3. The contractor--Panchanadan Paramalai Harijan (PW-2) - who had engaged the labourers and witnessed the incident reported the matter immediately to the Khar Police Station. His statement (Ex. 13) was recorded and based on that a first information report (No. 838) was registered under Section 304, 279, 336, 337, 338 and 427 IPC; Section 185 of the Motor Vehicles Act, 1988 and Section 66 (1)(b) of Bombay Prohibition Act, 1949. 4. On completion of investigation, the charge sheet was submitted against the appellant by the Investigating Officer in the court of Magistrate having jurisdiction. The appellant was committed to the Court 3 of Sessions and was tried by 2nd Adhoc Additional Sessions Judge, Sewree, Mumbai. 5. The indictment of the appellant was on two charges. The two charges read:- "(i) that on November 12, 2006 between 3.45 to 4.00 a.m. you have driven the car bearing No. MH-01-R-580 rashly and negligently with knowledge that people are sleeping on footpath and likely to cause death of those persons slept over footpath and thereby caused the death of seven persons who were sleeping on footpath on Carter Road and thereby committed an offence punishable under Section 304 Part II IPC. (ii) on above date, time and place you have driven the vehicle in rashly and negligent manner and thereby caused grievous injury to seven persons who were sleeping on footpath and thereby committed an offence punishable under Section 338 IPC." 6. The prosecution, to prove the above charges against the appellant, tendered oral as well as documentary evidence. In all, 18 witnesses, namely, Dr. Nitin Vishnu Barve (PW-1), Panchanadan Paramalai 4 Harijan (PW-2), Ramchandra Chakrawarti (PW-3), Pindi Ramu (PW-4), Sriniwas Raman Pindi (PW-5), Smt. Mariamma Shingamana (PW-6), Smt. Prema Chingaram (PW-7), Jagan Singaram (PW-8), Sigamani Shankar Pani (PW-9), Mallikarjun Bajappa Motermallappa (PW-10), J.C. Cell Mendosa (PW-11), Praveen Sajjan Mohite (PW- 12), Limbaji Samadhan Ingle (PW-13), Dr. Sharad Maniklal Ruia (PW-14), Rajendra Nilkanth Sawant (PW- 15), Basraj Sanjeev Mehetri (PW-16), Meenakshi Anant Gondapatil (PW-17) and Somnath Baburam Phulsunder (PW-18) were examined. The complaint, spot panchnama along with sketch map, C.A. Reports and other documents were also proved. 7. The statement of the appellant under Section 313 of the Criminal Procedure Code, 1973 (for short, `the Code') was recorded. He admitted that he was driving the car no. MH-01-R-580 at the relevant time and the accident did occur but his explanation was that it happened on account of failure of engine and 5 mechanical defect in the car and there was no negligence or rashness on his part. 8. The 2nd Adhoc Additional Sessions Judge, Sewree, Mumbai, on April 13, 2007 convicted the appellant for the offences punishable under Sections 304A and 337 IPC. The court sentenced him to suffer simple imprisonment of six months with fine of Rs. 5 lakhs for the offence under Section 304A IPC and in default further suffer simple imprisonment of one month and simple imprisonment of 15 days for the offence under Section 337 IPC. Both the sentences were ordered to run concurrently. 9. On April 19, 2007, the Bombay High Court took suo motu cognizance of the judgment and order dated April 13, 2007 passed by the 2nd Adhoc Additional Sessions Judge, Sewree and issued notice to the State of Maharashtra, the appellant and to the heirs of the deceased and also to the injured persons. 6 10. The State of Maharashtra preferred criminal appeal (No. 566 of 2007) under Section 378(3) of the Code challenging the acquittal of the appellant under Sections 304 Part II and 338 IPC. Another criminal appeal (No. 430 of 2007) was also preferred by the State of Maharashtra seeking enhancement of sentence awarded to the appellant for the offence under Section 304A and Section 337 IPC by the trial court. 11. The appellant also preferred criminal appeal (No. 475/2007) for setting aside the judgment and order dated April 13, 2007 passed by the trial court convicting him under Section 304A and Section 337 IPC and the sentence awarded to him by the trial court. 12. All these matters were heard together by the High Court and have been disposed of by the common judgment on September 6, 2007. The High Court set aside the acquittal of the appellant under Section 304 IPC and convicted him for the offences under Section 304 Part II, Section 338 and Section 337 IPC. The High 7 Court sentenced the appellant to undergo rigorous imprisonment for three years for the offence punishable under Section 304 Part II IPC with a fine of Rs. 5 lakhs. On account of offence under Section 338 IPC, the appellant was sentenced to undergo rigorous imprisonment for a term of one year and for the offence under Section 337 IPC rigorous imprisonment for six months. The High Court noted that fine amount as per the order of the trial court had already been distributed to the families of victims. 13. It is from the above judgment of the High Court that the present appeals have been preferred by the appellant. 14. A great deal of argument in the hearing of the appeals turned on the indictment of the appellant on the two charges, namely, the offence punishable under Section 304 Part II IPC and the offence punishable under Section 338 IPC and his conviction for the above offences and also under Section 337 IPC. Mr. U.U. Lalit, learned 8 senior counsel for the appellant argued that this was legally impermissible as the charges under Section 304 Part II IPC and Section 338 IPC were mutually destructive and the two charges under these Sections cannot co-exist. His submission was that the appellant was charged for the above offences for committing a single act i.e., rash or negligent for causing injuries to eight persons and at the same time committed with knowledge resulting in death of seven persons which is irreconcilable and moreover that has caused grave prejudice to the appellant resulting in failure of justice. 15. Mr. U.U. Lalit, learned senior counsel also argued that no question was put to the appellant in his statement under Section 313 of the Code about his drunken condition or that he was under the influence of alcohol and, thus, had knowledge that his act was likely to result in causing death. CA Report (Ex. 49) that blood and urine of the appellant had alcohol content and the evidence of PW-1 that he found the appellant in drunken 9 condition and his blood sample was taken were also not put to the appellant. These incriminating evidences, learned senior counsel submitted, cannot form basis of conviction. The conclusion arrived at by the Investigating Officers (PW-17 and PW-18) regarding drunken condition of the appellant which was put to the appellant in his statement under Section 313 of the Code was of no legal use. Moreover, PW-17 and PW-18 have not deposed before the court that the appellant was found in drunken condition much less under the influence of liquor. Learned senior counsel would thus submit that the sole basis of the appellant's conviction under Section 304 Part-II IPC that the appellant had knowledge that his reckless and negligent driving in a drunken condition could result in serious consequences of causing a fatal accident cannot be held to have been established. In this regard, learned senior counsel relied upon two decisions of this Court, namely, (i) Ghulam Din Buch & Ors. v. State of J & K1 and (ii) Kuldip Singh & Ors. v. State of Delhi2. 1 1996 (9) SCC 239 2 2003 (12) SCC 528 10 16. Mr. U.U. Lalit vehemently contended that no charge was framed that the appellant had consumed alcohol. Moreover, he submited that no reliance could be placed on C.A. Report (Ex. 49) as the evidence does not satisfactorily establish that the samples were kept in safe custody until they reached the CFSL. Moreover, no charge was framed by the court against the appellant under Section 185 of the Motor Vehicles Act, 1988 and Section 66(1)(b) of the Bombay Prohibition Act, 1949. 17. Learned senior counsel argued that appellant's conviction under Section 304A, 338 and 337 IPC was not legally sustainable for more than one reason. First, no charge under Section 304A IPC was framed against the appellant as he was charged only under Section 304 Part II IPC and Section 338 IPC which are not the offences of the same category. In the absence of charge under Section 304A IPC, the appellant cannot be convicted for the said offence being not a minor offence of Section 304 Part II IPC. The charge under Section 338 11 IPC does not help the prosecution as by virtue of that charge the appellant cannot be convicted under Section 304A IPC being graver offence than Section 338 IPC. Secondly, the accident had occurred not on account of rash or negligent act of the appellant but on account of failure of the engine. He referred to the evidence of Rajendra Nilkanth Sawant (PW-15) who deposed that he could not state if the accident took place due to dislodging of right side wheel and dislodging of the engine from the foundation. In the absence of any firm opinion by an expert as regards the cause of accident, the possibility of the accident having occurred on account of mechanical failure cannot be ruled out. Thirdly, in the absence of medical certificate that the persons injured received grievous injuries, charge under Section 338 IPC was not established. 18. Learned senior counsel lastly submitted that in case the charges against appellant are held to be proved, having regard to the facts, namely, the age of the 12 appellant at the time of the accident; the appellant being the only member to support his family - mother and unmarried sister - having lost his father during the pendency of the present appeals; the fine and compensation of Rs. 8.5 lakhs having been paid and the sentence of two months already undergone, the appellant may be released on probation of good conduct and behavior or, in the alternative, the sentence may be reduced to the period already undergone by the appellant. 19. On the other hand, Mr. Sanjay Kharde, learned counsel for the State of Maharashtra stoutly defended the judgment of the High Court. He argued that the fact that labourers were asleep on the footpath has gone unchallenged by the defence. He would submit that the drunken condition of the appellant is fully proved by the evidence of PW-1. Further, PW-1 has not at all been cross-examined on this aspect. The recovery of liquor bottle is proved by the evidence of spot panchas 13 (PW-11 and PW-16). They have not been cross examined in this regard. PW-17 collected blood sample of the appellant from PW-1 and then PW-18 forwarded the blood sample to the chemical analyzer along with the forwarding letter. The appellant has not challenged C.A. Report (Ex. 49) in the cross-examination of PW-18. 20. Learned counsel for the State submitted that the involvement of the appellant in the incident has been fully established by the evidence of PW-13 who was an eye-witness and working as a watchman at construction site. Moreover, the appellant was apprehended immediately after the incident. There is no denial by the appellant about occurrence of the accident. The defence of the appellant was that the accident happened due to engine and mechanical failure but the appellant has failed to probablise his defence. He referred to the evidence of PW-15 - motor vehicle inspector - to show that the brake and the gear of the car were operative. 14 21. Learned counsel for the State referred to the evidence of injured witnesses and also the evidence of PW-12 and PW-14 who issued medical certificates and submitted that the prosecution has established beyond reasonable doubt that the knowledge was attributable to the accused as he was driving the car in a drunken condition at a high speed. The accused had the knowledge, as he was resident of the same area, that the labourers sleep at the place of occurrence. Learned counsel submitted that the evidence on record and the attendant circumstances justify attributability of actual knowledge to the appellant and the High Court rightly held so. In this regard, the learned counsel for the State placed reliance upon two decisions of this Court in Jai Prakash v. State (Delhi Administration)3 and Joti Parshad v. State of Haryana4. He disputed that there was any error in the framing of charge. He would contend that in any case an error or omission in framing of charge or irregularity in the charge does not invalidate the 3 1991 (2) SCC 32 4 1993 Supp (2) SCC 497 15 conviction of an accused. The omission about the drunken condition of the accused in the charge at best can be said to be an irregularity but that does not affect the conviction. In this regard, he relied upon Section 464 of the Code and the decisions of this Court in Willie (William) Slaney v. State of Madhya Pradesh5, Dalbir Singh v. State of U.P.6 and Annareddy Sambasiva Reddy and others v. State of Andhra Pradesh7. 22. Mr. Sanjay Kharde submitted that by not putting C.A. Report (Ex. 49) to the appellant in his statement under Section 313 of the Code, no prejudice has been caused to him as he admitted in his statement under Section 313 of the Code that he was fully aware about the statement of the witnesses and exhibits on record. In this regard, learned counsel relied upon decision of this Court in Shivaji Sahabrao Bobade and another v. State of Maharashtra8 . 5 AIR 1956 SC 116 6 2004 (5) SCC 334 7 2009 (12) SCC 546 8 1973 (2) SCC 793 16 23. Lastly, learned counsel for the State submitted that the circumstances pointed out by the learned senior counsel for the appellant do not justify the benefit of probation to the appellant or reduction of the sentence to the period already undergone. He submitted that seven innocent persons lost their lives and eight persons got injured due to the act of the appellant and, therefore, no sympathy was called for. He submitted that sentence should be proportionate to the gravity of offence. He relied upon the decisions of this Court in State of Karnataka v. Krishnappa9, Dalbir Singh v. State of Haryana10, Shailesh Jasvantbhai and another v. State of Gujarat and others11 and Manish Jalan v. State of Karnataka12. 24. On the contentions of the learned senior counsel for the appellant and the counsel for the respondent, the following questions arise for our consideration : 9 2000 (4) SCC 75 10 2000 (5) SCC 82 11 2006 (2) SCC 359 12 2008 (8) SCC 225 17 (i) Whether indictment on the two charges, namely, the offence punishable under Section 304 Part II IPC and the offence punishable under Section 338 IPC is mutually destructive and legally impermissible? In other words, whether it is permissible to try and convict a person for the offence punishable under Section 304 Part II IPC and the offence punishable under Section 338 IPC for a single act of the same transaction? (ii) Whether by not charging the appellant of `drunken condition' and not putting to him the entire incriminating evidence let in by the prosecution, particularly the evidence relating to appellant's drunken condition, at the time of his examination under Section 313 of the Code, the trial and conviction of the appellant got affected? (iii) Whether prosecution evidence establishes beyond reasonable doubt the commission of the offences by the appellant under Section 304 Part II, IPC, Section 338 IPC and Section 337 IPC? (iv) Whether sentence awarded to the appellant by the High Court for the offence punishable under Section 304 Part II IPC requires any modification? re: question (i) 18 25. Section 304 IPC provides for punishment for culpable homicide not amounting to murder. It reads as under: "S.304. - Punishment for culpable homicide not amounting to murder - Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death". 26. The above Section is in two parts. Although Section does not specify Part I and Part II but for the sake of convenience, the investigators, the prosecutors, the lawyers, the judges and the authors refer to the first paragraph of the Section as Part I while the second paragraph is referred to as Part II. The constituent elements of Part I and Part II are different and, consequently, the difference in punishment. For punishment under Section 304 Part I, the prosecution 19 must prove: the death of the person in question; that such death was caused by the act of the accused and that the accused intended by such act to cause death or cause such bodily injury as was likely to cause death. As regards punishment for Section 304 Part II, the prosecution has to prove the death of the person in question; that such death was caused by the act of the accused and that he knew that such act of his was likely to cause death. In order to find out that an offence is `culpable homicide not amounting to murder' - since Section 304 does not define this expression - Sections 299 and 300 IPC have to be seen. Section 299 IPC reads as under: "S.-299. - Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide." 27. To constitute the offence of culpable homicide as defined in Section 299 the death must be caused by doing an act: (a) with the intention of causing death, or 20 (b) with the intention of causing such bodily injury as is likely to cause death, or (c) with the knowledge that the doer is likely by such act to cause death. 28. Section 300 deals with murder and also provides for exceptions. The culpable homicide is murder if the act by which the death is caused is done: (1) with the intention of causing death, (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or (3) with the intention of causing such bodily injury as is sufficient in the ordinary course of nature to cause death, or (4) with the knowledge that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. The exceptions provide that the culpable homicide will not be murder if that act is done with the intention or knowledge in the circumstances and subject 21 to the conditions specified therein. In other words, the culpable homicide is not murder if the act by which death is caused is done in extenuating circumstances and such act is covered by one of the five exceptions set out in the later part of Section 300. 29. It is not necessary in the present matter to analyse Section 299 and Section 300 in detail. Suffice it to say that the last clause of Section 299 and clause `fourthly' of Section 300 are based on the knowledge of the likely or probable consequences of the act and do not connote any intention at all. 30. Reference to few other provisions of IPC in this regard is also necessary. Section 279 makes rash driving or riding on a public way so as to endanger human life or to be likely to cause hurt or injury to any other person an offence and provides for punishment which may extend to six months, or with fine which may extend to Rs. 1000/-, or with both. 22 31. Causing death by negligence is an offence under Section 304A. It reads : "S.304A. - Causing death by negligence.-- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 32. Section 336 IPC says that whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to Rs. 250/-, or with both. 33. Section 337 IPC reads as follows : "S. 337. - Causing hurt by act endangering life or personal safety of others.--Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both." 34. Section 338 IPC is as under : 23 "S. 338. - Causing grievous hurt by act endangering life or personal safety of others. --Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both." 35. In Empress of India v. Idu Beg13, Straight J., explained the meaning of criminal rashness and criminal negligence in the following words: criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was 13 1881 (3) All 776 24 the imperative duty of the accused person to have adopted. 36. The above meaning of criminal rashness and criminal negligence given by Straight J. has been adopted consistently by this Court. 37. Insofar as Section 304A IPC is concerned, it deals with death caused by doing any rash or negligent act where such death is caused neither intentionally nor with the knowledge that the act of the offender is likely to cause death. The applicability of Section 304A IPC is limited to rash or negligent acts which cause death but fall short of culpable homicide amounting to murder or culpable homicide not amounting to murder. An essential element to attract Section 304A IPC is death caused due to rash or negligent act. The three things which are required to be proved for an offence under Section 304A are : (1) death of human being; (2) the accused caused the death and (3) the death was caused 25 by the doing of a rash or negligent act, though it did not amount to culpable homicide of either description. 38. Like Section 304A, Sections 279, 336, 337 and 338 IPC are attracted for only the negligent or rash act. 39. The scheme of Sections 279, 304A, 336, 337 and 338 leaves no manner of doubt that these offences are punished because of the inherent danger of the acts specified therein irrespective of knowledge or intention to produce the result and irrespective of the result. These sections make punishable the acts themselves which are likely to cause death or injury to human life. The question is whether indictment of an accused under Section 304 Part II and Section 338 IPC can co-exist in a case of single rash or negligent act. We think it can. We do not think that two charges are mutually destructive. If the act is done with the knowledge of the dangerous consequences which are likely to follow and if death is caused then not only that the punishment is for the act 26 but also for the resulting homicide and a case may fall within Section 299 or Section 300 depending upon the mental state of the accused viz., as to whether the act was done with one kind of knowledge or the other or the intention. Knowledge is awareness on the part of the person concerned of the consequences of his act of omission or commission indicating his state of mind. There may be knowledge of likely consequences without any intention. Criminal culpability is determined by referring to what a person with reasonable prudence would have known. 40. Rash or negligent driving on a public road with the knowledge of the dangerous character and the likely effect of the act and resulting in death may fall in the category of culpable homicide not amounting to murder. A person, doing an act of rash or negligent driving, if aware of a risk that a particular consequence is likely to result and that result occurs, may be held guilty not only of the act but also of the result. As a matter of 27 law - in view of the provisions of the IPC - the cases which fall within last clause of Section 299 but not within clause `fourthly' of Section 300 may cover the cases of rash or negligent act done with the knowledge of the likelihood of its dangerous consequences and may entail punishment under Section 304 Part II IPC. Section 304A IPC takes out of its ambit the cases of death of any person by doing any rash or negligent act amounting to culpable homicide of either description. 41. A person, responsible for a reckless or rash or negligent act that causes death which he had knowledge as a reasonable man that such act was dangerous enough to lead to some untoward thing and the death was likely to be caused, may be attributed with the knowledge of the consequence and may be fastened with culpability of homicide not amounting to murder and punishable under Section 304 Part II IPC. 42. There is no incongruity, if simultaneous with the offence under Section 304 Part II, a person who has 28 done an act so rashly or negligently endangering human life or the personal safety of the others and causes grievous hurt to any person is tried for the offence under Section 338 IPC. 43. In view of the above, in our opinion there is no impediment in law for an offender being charged for the offence under Section 304 Part II IPC and also under Sections 337 and 338 IPC. The two charges under Section 304 Part II IPC and Section 338 IPC can legally co-exist in a case of single rash or negligent act where a rash or negligent act is done with the knowledge of likelihood of its dangerous consequences. 44. By charging the appellant for the offence under Section 304 Part II IPC and Section 338 IPC - which is legally permissible - no prejudice has been caused to him. The appellant was made fully aware of the charges against him and there is no failure of justice. We are, therefore, unable to accept the submission of Mr. U.U. Lalit that by charging the appellant for the offences 29 under Section 304 Part II IPC and Section 338 IPC for a rash or negligent act resulting in injuries to eight persons and at the same time committed with the knowledge resulting in death of seven persons, the appellant has been asked to face legally impermissible course. 45. In Prabhakaran Vs. State of Kerala14, this Court was concerned with the appeal filed by a convict who was found guilty of the offence punishable under Section 304 Part II IPC. In that case, the bus driven by the convict ran over a boy aged 10 years. The prosecution case was that bus was being driven by the appellant therein at the enormous speed and although the passengers had cautioned the driver to stop as they had seen children crossing the road in a queue, the driver ran over the student on his head. It was alleged that the driver had real intention to cause death of persons to whom harm may be caused on the bus hitting them. He was charged with offence punishable under Section 302 IPC. The Trial Court found that no 14 2007 (14) SCC 269 30 intention had been proved in the case but at the same time the accused acted with the knowledge that it was likely to cause death, and, therefore, convicted the accused of culpable homicide not amounting to murder punishable under Section 304 Part II IPC and sentenced him to undergo rigorous imprisonment for five years and pay a fine of Rs.15,000/- with a default sentence of imprisonment for three years. The High Court dismissed the appeal and the matter reached this Court. While observing that Section 304A speaks of causing death by negligence and applies to rash and negligent acts and does not apply to cases where there is an intention to cause death or knowledge that the act will in all probability cause death and that Section 304A only applies to cases in which without any such intention or knowledge death is caused by a rash and negligent act, on the factual scenario of the case, it was held that the appropriate conviction would be under Section 304A IPC and not Section 304 Part II IPC. Prabhakaran14 does not 31 say in absolute terms that in no case of an automobile accident that results in death of a person due to rash and negligent act of the driver, the conviction can be maintained for the offence under Section 304 Part II IPC even if such act (rash or negligent) was done with the knowledge that by such act of his, death was likely to be caused. Prabhakaran14 turned on its own facts. Each case obviously has to be decided on its own facts. In a case where negligence or rashness is the cause of death and nothing more, Section 304A may be attracted but where the rash or negligent act is preceded with the knowledge that such act is likely to cause death, Section 304 Part II IPC may be attracted and if such a rash and negligent act is preceded by real intention on the part of the wrong doer to cause death, offence may be punishable under Section 302 IPC. re: question (ii) 46. On behalf of the appellant it was strenuously urged that the conviction of the appellant by the High 32 Court for the offence under Section 304 Part II IPC rests solely on the premise that the appellant had knowledge that his reckless or negligent driving in a drunken condition could result in serious consequences of causing fatal accident . It was submitted that neither in the charge framed against the appellant, the crux of the prosecution case that the appellant was in a drunken condition was stated nor incriminating evidences and circumstances relating to rashness or negligence of the accused in the drunken condition were put to him in the statement under Section 313 of the Code. 47. It is a fact that no charge under Section 185 of the Motor Vehicles Act, 1988 and Section 66(1)(b) of the Bombay Prohibition Act, 1949 was framed against the appellant. It is also a fact that in the charge framed against the appellant under Section 304 Part II IPC, the words `drunken condition' are not stated and the charge reads; `on November 12, 2006 between 3.45 to 4.00 a.m. he was driving the car bearing Registration No. 33 MH-01-R-580 rashly and negligently with knowledge that people are sleeping on footpath and likely to cause death of those persons rammed over the footpath and thereby caused death of 8 persons who were sleeping on footpath on Carter Road, Bandra (West), Mumbai and thereby committed an offence punishable under Section 304 Part II IPC'. The question is whether the omission of the words, `in drunken condition' after the words `negligently' and before the words `with knowledge' has caused any prejudice to the appellant. 48. Section 464 of the Code reads as follows: "S.464. - Effect of omission to frame, or absence of, or error in, charge.- (1) No finding sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may- 34 (a) In the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge. (b) In the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit: Provided that if the court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction. 49. The above provision has come up for consideration before this Court on numerous occasions. It is not necessary to refer to all these decisions. Reference to a later decision of this Court in the case of Anna Reddy Sambasiva Reddy7 delivered by one of us (R.M. Lodha, J.) shall suffice. In paras 55-56 of the Report in Anna Reddy Sambasiva Reddy7 it has been stated as follows: "55. In unmistakable terms, Section 464 specifies that a finding or sentence of a court shall not be set aside merely on the ground that a charge was not framed or that charge was defective unless it has occasioned in prejudice. Because of a mere defect in 35 language or in the narration or in form of the charge, the conviction would not be rendered bad if accused has not been adversely affected thereby. If the ingredients of the section are obvious or implicit, conviction in regard thereto can be sustained irrespective of the fact that the said section has not been mentioned. 56. A fair trial to the accused is a sine quo non in our criminal justice system but at the same time procedural law contained in the Code of Criminal Procedure is designed to further the ends of justice and not to frustrate them by introduction of hyper- technicalities. Every case must depend on its own merits and no straightjacket formula can be applied; the essential and important aspect to be kept in mind is: has omission to frame a specific charge resulted in prejudice to the accused." 50. In light of the above legal position, if the charge under Section 304 Part II IPC framed against the appellant is seen, it would be clear that the ingredients of Section 304 Part II IPC are implicit in that charge. The omission of the words `in drunken condition' in the charge is not very material and, in any case, such omission has not at all resulted in prejudice to the appellant as he was fully aware of the prosecution 36 evidence which consisted of drunken condition of the appellant at the time of incident. 51. PW-1 is the doctor who examined the appellant immediately after the incident. In his deposition he stated that he had taken the blood of the accused as he was found in drunken condition. On behalf of the appellant PW-1 has been cross examined but there is no cross-examination of PW-1 on this aspect. 52. It is a fact that evidence of PW-1, as noticed above, has not been put to the appellant in his statement under Section 313 of the Code but that pales into insignificance for want of cross examination of PW-1 in regard to his deposition that the appellant was found in drunken condition and his blood sample was taken. 53. CA Report (Ex. 49) too has not been specifically put to the appellant at the time of his examination under Section 313 of the Code but it is pertinent to notice that PW-18 (Investigating Officer) 37 deposed that he had forwarded blood sample of the accused and the bottle found in the car to the chemical analyzer (CA) on 14.11.2006 and 15.11.2006 respectively. He further deposed that he collected the medical certificate from Bhabha Hospital and he had received the CA report (Ex. 49). PW-18 has also not been cross examined by the defence in respect of the above. In the examination under Section 313 of the Code the following questions were put to the appellant: Question 9: "What you want to say about the further evidence of above two witnesses that police while drawing spot panchanama seized one ladies chappal, remote, lighter, cigarette perfume and so called liquor bottle from the vehicle i.e. MH-01-R-580?" The appellant answered `I do not know' Question 16: " What you want to say about the evidence of Meenakashi Patil who has stated that initial investigation as carried out by her and further investigation was entrusted to PI Phulsunder from 13.11.2006 and on due investigation police concluded 38 themselves that your rash and negligence driving caused the death of seven persons and injury to the eight persons by vehicle No. MH-01-R-580 by consuming alcohol so police have charge sheeted you?" He answered, `It is false'. 54. The above questions in his examination under Section 313 of the Code show that the appellant was fully aware of the prosecution evidence relating to his rash and negligent driving in the drunken condition. In the circumstances, by not putting to the appellant expressly the CA report (Ex. 49) and the evidence of PW 1, no prejudice can be said to have been caused to the appellant. The words of P.B. Gajendragadkar, J. (as he then was) in Jai Dev Vs. State of Punjab15 speaking for three-Judge Bench with reference to Section 342 of the Code (corresponding to Section 313 of the 1973 Code) may be usefully quoted: "21 . . . . . . the ultimate test in determining whether or not the accused has been fairly 15 AIR 1963 SC 612 39 examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity. . . . . . . . .". 55. In Shivaji Sahabrao Bobade and Anr. Vs. State of Maharashtra8 a 3-Judge Bench of this Court stated: "16. ........It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction". 40 56. The above decisions have been referred in Asraf Ali Vs. State of Assam16. The Court stated: "21. Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced. 22. The object of Section 313 of the Code is to establish a direct dialogue between the court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. 24. In certain cases when there is perfunctory examination under Section 313 of the Code, the matter is remanded to the trial court, with a direction to retry from the stage at which the prosecution was closed". 16 2008 (16) SCC 328 41 57. From the above, the legal position appears to be this : the accused must be apprised of incriminating evidence and materials brought in by the prosecution against him to enable him to explain and respond to such evidence and material. Failure in not drawing the attention of the accused to the incriminating evidence and inculpatory materials brought in by prosecution specifically, distinctly and separately may not by itself render the trial against the accused void and bad in law; firstly, if having regard to all the questions put to him, he was afforded an opportunity to explain what he wanted to say in respect of prosecution case against him and secondly, such omission has not caused prejudice to him resulting in failure of justice. The burden is on the accused to establish that by not apprising him of the incriminating evidence and the inculpatory materials that had come in the prosecution evidence against him, a prejudice has been caused resulting in miscarriage of justice. 42 58. Insofar as present case is concerned, in his statement under Section 313, the appellant was informed about the evidence relating to the incident that occurred in the early hours (between 3.45 a.m. to 4.00 a.m.) of November 12, 2006 and the fact that repairs were going on the road at that time. The appellant accepted this position. The appellant was also informed about the evidence of the prosecution that vehicle No. MH-01-R-580 was involved in the said incident. This was also accepted by the appellant. His attention was brought to the evidence of the eye-witnesses and injured witnesses, namely, PW-2, PW-3, PW-4, PW-5, PW-6, PW- 7, PW-8, PW-9 and PW-10 that at the relevant time they were sleeping on the pavement of Carter Road, Bandra (West) outside the temporary huts and there was an accident in which seven persons died and eight persons got injured. The attention of the appellant was also drawn to the evidence of the spot panchas (PW-11 and 43 PW-16) that they had noticed that the car no. MH-01-R- 580 at the time of preparation of spot panchnama was in a heavily damaged condition with dislodged right side wheel and some blood was found on the earth and the huts were found damaged. The prosecution evidence that the appellant was seen driving car no. MH-01-R-580 at high speed from Khar Danda side and that rammed over the footpath and crushed the labourers sleeping there was also brought to his notice. The evidence of the mechanical expert (PW-15) that he checked the vehicle and found no mechanical defect in the car was also brought to his notice. During investigation, the police concluded that the rash and negligent driving of the appellant by consuming alcohol caused the death of seven persons and injury to the eight persons. The conclusion drawn on the completion of investigation was also put to him. The appellant's attention was also invited to the materials such as photographs, mechanical inspections of the car, seized articles, liquor bottle, etc. 44 Having regard to the above, it cannot be said that the appellant was not made fully aware of the prosecution evidence that he had driven the car rashly or negligently in a drunken condition. He had full opportunity to say what he wanted to say with regard to the prosecution evidence. 59. The High Court in this regard held as under : "29............The salutary provision of section 313 of the Code have been fairly, or at least substantially, complied with by the trial court, in the facts and circumstances of this case. The real purpose of putting the accused at notice of the incriminating circumstances and requiring him to offer explanation, if he so desires, has been fully satisfied in the present case. During the entire trial, copies of the documents were apparently supplied to the accused, even prior to the framing of the charge. After such charge was framed, all the witnesses were examined in the presence of the accused and even limited questions regarding incriminating material put by the court to the accused in his statement under Section 313 of the Code shows that the entire prosecution case along with different exhibits was put to the accused. He in fact did not deny the suggestions that the witnesses had been examined in his presence and he was aware about the contents of their statements. All 45 this essentially would lead to only one conclusion that the contention raised on behalf of the accused in this regard deserves to be rejected. While rejecting this contention we would also observe that the admission or confession of the accused in his statement under section 313 of the Code, in so far as it provides support or even links to, or aids the case of the prosecution proved on record, can also be looked into by the court in arriving at its final conclusion. It will be more so when explanation in the form of answers given by the accused under Section 313 of the Code are apparently untrue and also when no cross examination of the crucial prosecution witnesses was conducted on this line." We are in agreement with the above view of the High Court. r e: question (iii ) 60. The crucial question now remains to be seen is whether the prosecution evidence establishes beyond reasonable doubt the commission of offence under Section 304 Part II IPC, Section 338 IPC and Section 337 IPC against the appellant. 61. The appellant has not denied that in the early hours of November 12, 2006 between 3.45-4.00 a.m. on the South-North Road at the East side of Carter Road, 46 Bandra (West), Mumbai, the car bearing registration no. MH-01-R-580 met with an accident and he was at the wheels at that time. PW-13 was working as a watchman at the construction site. He witnessed the accident. He deposed that he noticed that in the night of November 11, 2006 and November 12, 2006 at about 4.00 a.m., the vehicle bearing no. MH-01-R-580 came from Khar Danda side; the vehicle was in high speed and rammed over the pavement and crushed the labourers. He deposed that 14-15 persons were sleeping at that time on the pavement. He stated that he used to take rounds during his duty hours. His evidence has not at all been shaken in the cross-examination. 62. PW-2 is the complainant. He lodged the complaint of the incident at the Khar Police Station. In his deposition, he has stated that he was contractor with New India Construction Co. and nine labourers were working under him. At Carter Road, the work of road levelling was going on. He and other persons were 47 sleeping in a temporary hutment near railway colony. The labourers were sleeping on the pavement. When he was easing himself, at about 3.30 a.m. of November 12, 2006, he heard the commotion and saw the smoke coming out of the vehicle that rammed over the footpath. Six persons died on the spot; one expired in the hospital and eight persons sustained injuries. He confirmed that the police recorded his complaint and the complaint (Ex. 13) was read over to him by the police and was correct. He has been cross-examined by the defence but there is no cross examination in respect of his statement that he had got up to ease himself at about 3.30 a.m. on November 12, 2006 and he heard the commotion and saw smoke coming out of the vehicle. He has denied the suggestion of the defence that road was blocked to some extent for construction purpose. He denied that he had filed false complaint so as to avoid payment of compensation to the workers. 48 63. The first Investigating Officer (PW-17), who proceeded along with the staff no sooner the message was received from Khar 1 Mobile Van that accident had taken place at Carter Road, near Railway Officers Quarters and reached the spot, has deposed that on her arrival at the spot, she came to know that the labourers who were sleeping on footpath were run over by the vehicle bearing No. MH-01-R-580. She shifted the injured to the Bhabha Hospital; went to the Khar police station for recording the complaint and then came back to the site of accident and prepared Panchnama (Ex. 28) in the presence of Panchas PW-11 and PW-16. Exhibit 28 shows that the accident spot is towards south of railway quarters gate and is at a distance of about 110 feet. The length of footpath between railway quarters gate and Varun Co-operative Housing Society gate is about 160 feet. The accident spot is about 50 feet from the Varun Co-operative Housing Society gate. On the footpath, between railway quarters gate and Varun Co-operative 49 Housing Society gate, the temporary sheds were set up. The vehicle (Toyota Corolla) bearing No. MH-01-R-580 was lying in the middle of the road between road divider and footpath on Carter Road at about 50 feet from the north side of Varun Co-operative Housing Society gate and about 110 feet from railway quarters gate on the south side. The front wheel of the car was broken and mudguard was pressed. The spot panchnama shows 70 feet long brake marks in a curve from west side of the road divider towards footpath on eastern side. It is further seen from the spot panchnama that a tempo, mud digger and two trucks were parked on the road between Railway Quarters gate and Varun Cooperative Housing Society gate near the accident spot. The spot panchnama is duly proved by PW-11 and PW-16. There is nothing in the cross-examination of these witnesses to doubt their presence or veracity. The long brake marks in curve show that vehicle was being driven by the appellant at the high speed; the appellant had lost 50 control of the speeding vehicle resulting in the accident and, consequently, seven deaths and injury to eight persons. 64. PW-15 is a motor vehicle inspector. He deposed that he was summoned by the control room to check the vehicle MH 01-R-580 involved in the accident. At the time of inspection, right side wheel of the vehicle was found dislodged from the body of the vehicle and the engine was dislodged from the foundation; though the steering wheel was intact and brake lever and gear lever were operative. There was no air in the front wheel of the vehicle. He opined that accident might have happened on account of dash. He has been briefly cross-examined and the only thing he said in the cross-examination was that he could not say whether the accident took place due to dislodging of right side wheel and dislodging of engine from foundation. 65. The above evidence has been considered by the High Court quite extensively. The High Court, on 51 consideration of the entire prosecution evidence and having regard to the deficiencies pointed out by the defence, reached the conclusion that (1) the accused at the time of driving the car was under the influence of liquor; (2) he drove the car in drunken condition at a very high speed; and (3) he failed to control the vehicle and the vehicle could not be stopped before it ran over the people sleeping on the pavement. The High Court observed that the accused could not concentrate on driving as he was under the influence of liquor and the vehicle was being driven with loud noise and a tape recorder being played in high volume. The High Court held that the accused had more than 22 feet wide road for driving and there was no occasion for a driver to swing to the left and cover a distance of more than 55 feet; climb over the footpath and run over the persons sleeping on the footpath. The High Court took judicial notice of the fact that in Mumbai people do sleep on pavements. The accused was also aware of the fact that 52 at the place of occurrence people sleep as the accused was resident of that area. The High Court took note of the fact that the accused had admitted the accident and his explanation was that the accident occurred due to mechanical failure and the defect that was developed in the vehicle but found his explanation improbable and unacceptable. The High Court also observed that the factum of high and reckless speed was evident from the brake marks at the site. The speeding car could not be stopped by him instantaneously. In the backdrop of the above findings, the High Court held that the accused could be attributed to have a specific knowledge of the event that happened. The High Court, thus concluded that the accused had knowledge and in any case such knowledge would be attributable to him that his actions were dangerous or wanton enough to cause injuries which may even result into death of persons. 66. We have also carefully considered the evidence let in by prosecution - the substance of which has been 53 referred to above - and we find no justifiable ground to take a view different from that of the High Court. We agree with the conclusions of the High Court and have no hesitation in holding that the evidence and materials on record prove beyond reasonable doubt that the appellant can be attributed with knowledge that his act of driving the vehicle at a high speed in the rash or negligent manner was dangerous enough and he knew that one result would very likely be that people who were asleep on the pavement may be hit, should the vehicle go out of control. There is a presumption that a man knows the natural and likely consequences of his acts. Moreover, an act does not become involuntary act simply because its consequences were unforeseen. The cases of negligence or of rashness or dangerous driving do not eliminate the act being voluntary. In the present case, the essential ingredients of Section 304 Part II IPC have been successfully established by the prosecution against the appellant. The infirmities pointed out by Mr. U.U. 54 Lalit, learned senior counsel for the appellant, which have been noticed above are not substantial and in no way affect the legality of the trial and the conviction of the appellant under Section 304 Part II IPC. We uphold the view of the High Court being consistent with the evidence on record and law. 67. The trial court convicted the accused of the offence under Section 337 IPC but acquitted him of the charge under Section 338 IPC. The High Court noticed that two injured persons, namely, PW-6 and PW-8 had injuries over the right front temporal parietal region of the size of 5x3 cms. with scar deep with bleeding (Ex. 37 and 33 respectively). The High Court held that these were not simple injuries and were covered by the grievous hurt under Section 320 IPC. We agree. Charge under Section 338 IPC against the appellant is clearly established. 68. Insofar as charge under Section 337 IPC is concerned, it is amply established from the prosecution evidence that PW-5, PW-7, PW-9 and PW-10 received 55 various injuries; they suffered simple hurt. The trial court as well as the High Court was justified in convicting the appellant for the offence punishable under Section 337 IPC as well. r e: question (iv ) 69. The question now is whether the maximum sentence of three years awarded to the appellant by the High Court for the offence under Section 304 Part II IPC requires any modification? It was argued on behalf of the appellant that having regard to the facts : (i) the appellant has already undergone sentence of two months and has paid Rs. 8,50,000/- by way of fine and compensation; (ii) the appellant is further willing to pay reasonable amount as compensation/fine as may be awarded by this Court; (iii) the appellant was about 20 years of age at the time of incident; and (iv) the appellant lost his father during the pendency of the appeal and presently being the only member to support his family which comprises of mother and unmarried sister, he may 56 be released on probation of good conduct and behaviour or the sentence awarded to him be reduced to the period already undergone. 70. Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. 71. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. 57 As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence. 72. This Court has laid down certain principles of penology from time to time. There is long line of cases on this aspect. However, reference to few of them shall suffice in the present case. 73. In the case of Krishnappa9, though this Court was concerned with the crime under Section 376 IPC but with reference to sentencing by courts, the Court made these weighty observations : "18. ........ Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, as in this 58 case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. There are no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum on the respondent. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. ........." 74. In the case of Dalbir Singh10, this Court was concerned with a case where the accused was held guilty of the offence under Section 304A IPC. The Court made the following observations (at Pages 84-85 of the Report): "1. When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic." Then while dealing with Section 4 of the Probation of Offenders Act, 1958, it was observed that Section 4 could be resorted to when the court considers the 59 circumstances of the case, particularly the nature of the offence, and the court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on the probation of good conduct. For application of Section 4 of the Probation of Offenders Act, 1958 to convict under Section 304A IPC, the court stated in paragraph 11 of the Report (at Pg. 86) thus:- "Courts must bear in mind that when any plea is made based on Section 4 of the PO Act for application to a convicted person under Section 304-A IPC, that road accidents have proliferated to an alarming extent and the toll is galloping day by day in India, and that no solution is in sight nor suggested by any quarter to bring them down.........." Further, dealing with this aspect, in paragraph 13 (at page 87) of the Report, this Court stated : "Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the PO Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations 60 should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly, that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of the vehicle he cannot escape from a jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles." 75. In State of M.P. v. Saleem alias Chamaru & Anr.17, while considering the case under Section 307 IPC this Court stated in paragraphs 6-10 (pages 558-559) of the Report as follows : "6. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of 17 2005 (5) SCC 554 61 the offence and the manner in which it was executed or committed, etc. . . . . . . . . . . 7. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle McGautha v. State of California (402 US 183) that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished. 8. The object should be to protect society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. 9. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against 62 women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result wise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system. 10. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal"." 76. In the case of Shailesh Jasvantbhai11, the Court referred to earlier decisions in Dhananjoy Chatterjee alias Dhana v. State of W.B.18, Ravji alias Ram Chandra v. State of Rajasthan19, State of M.P. v. Ghanshyam Singh20, Surjit Singh v. Nahara Ram & Anr.21, 18 (1994) 2 SCC 220 19 (1996) 2 SCC 175 20 (2003) 8 SCC 13 21 (2004) 6 SCC 513 63 State of M.P. v. Munna Choubey22. In Ravji19, this Court stated that the court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". 77. In Manish Jalan12, this Court considered Section 357 of the Code in a case where the accused was found guilty of the offences punishable under Sections 279 and 304A IPC. After noticing Section 357, the Court considered earlier decision of this Court in Hari Singh v. Sukhbir Singh & Ors.23 wherein it was observed, `it may be noted that this power of courts to award compensation 22 (2005) 2 SCC 710 23 (1988) 4 SCC 551 64 is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system". Then the court noticed another decision of this Court in Sarwan Singh & Ors. v. State of Punjab24 in which it was observed that in awarding compensation, it was necessary for the court to decide if the case was a fit one in which compensation deserved to be granted. Then the court considered another decision of this Court in Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. & Anr.25 wherein the court held at Page 545 of the Report as under: "38. The purpose of imposition of fine and/or grant of compensation to a great extent must be considered having the relevant factors therefor in mind. It may be compensating the person in one way or the other. The amount of 24 (1978) 4 SCC 111 25 (2007) 6 SCC 528 65 compensation sought to be imposed, thus, must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of the accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way, may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned; the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but sub-section (3) of Section 357 does not impose any such limitation and thus, power thereunder should be exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a Judge." Having regard to the above legal position and the fact that the mother of the victim had no grievance against the appellant therein and she prayed for some compensation, this Court held that a lenient view could be taken in the matter and the sentence of imprisonment could be reduced and, accordingly, reduced the sentence to the period already undergone and directed the appellant to pay compensation of Rs. One lakh to the mother of the victim. 78. World Health Organisation in the Global Status Report on Road Safety has pointed out that 66 speeding and drunk driving are the major contributing factors in road accidents. According to National Crime Records Bureau (NCRB), the total number of deaths due to road accidents in India every year is now over 1,35,000. NCRB Report also states drunken driving as a major factor for road accidents. Our country has a dubious distinction of registering maximum number of deaths in road accidents. It is high time that law makers revisit the sentencing policy reflected in Section 304A IPC. 79. The facts and circumstances of the case which have been proved by the prosecution in bringing home the guilt of the accused under Section 304 Part II IPC undoubtedly show despicable aggravated offence warranting punishment proportionate to the crime. Seven precious human lives were lost by the act of the accused. For an offence like this which has been proved against the appellant, sentence of three years awarded by the High Court is too meagre and not adequate but 67 since no appeal has been preferred by the State, we refrain from considering the matter for enhancement. By letting the appellant away on the sentence already undergone i.e. two months in a case like this, in our view, would be travesty of justice and highly unjust, unfair, improper and disproportionate to the gravity of crime. It is true that the appellant has paid compensation of Rs. 8,50,000/- but no amount of compensation could relieve the family of victims from the constant agony. As a matter of fact, High Court had been quite considerate and lenient in awarding to the appellant sentence of three years for an offence under Section 304 Part II IPC where seven persons were killed. 80. We are satisfied that the facts and circumstances of the case do not justify benefit of probation to the appellant for good conduct or for any reduction of sentence. 81. The appeals are, accordingly, dismissed. Appellant's bail bonds are cancelled. He shall forthwith 68 surrender for undergoing the remaining sentence as awarded by the High Court in the Judgment and Order dated September 6, 2007. ................................. J. (R. M. Lodha) ................................ J. (Jagdish Singh Khehar) NEW DELHI, JANUARY 12, 2012. 69