Head
Notes
Allowing the appeal, the Court
HELD: 1.1 High Court has without
considering the relevant aspects and even
without indicating any reason,
waived the custodial sentence and imposed
only fine. The judgment
therefore is clearly unsustainable. [Para 26]
[414-D]
1.2 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 the offence and the manner in which it was executed or
committed etc.
[Para 21] [411-C]
Sevaka Perumal etc. v. State of Tamil
Naidu AIR 1991 SC 1463 - relied on.
1.3 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. 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. [Para
22] [413-A-D]
Dennis Councle MCGDautha v. State of
Callifornia 402 US 183: 28 L.D. 2d 711
- referred to.
1.4 The object
should be to protect the 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. [Para 23]
[413-E]
1.5 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 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 meager
sentences or taking too sympathetic
view merely on account of lapse of time
in respect of such offences will be
result-wise counter productive in the
long run and against societal
interest which needs to be cared for and
strengthened by string of deterrence
inbuilt in the sentencing system.
[Para 24] [413-F-H; 414-A]
1.6 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". [Para 25] [414-D]
2.1 Section 304-A IPC applies to cases
where there is no intention to cause
death and no knowledge that the act
done in all probability will cause
death. The provision is directed at
offences outside the range of Sections
299 and 300 IPC. The provision applies
only to such acts which are rash and
negligent and are directly cause of
death of another person. Negligence and
rashness are essential elements u/s.
304-A. Culpable negligence lies in the
failure to exercise reasonable and
proper care and the extent of its
reasonableness will always depend upon
the circumstances of each case.
Rashness means doing an act with the
consciousness of a risk that evil
consequences will follow but with the
hope that it will not. [Para 7] [406-
F-H]
2.2 A negligent act is an act done
without doing something which a
reasonable man guided upon those
considerations which ordinarily regulate
the conduct of human affairs would do
or act which a prudent or reasonable
man would not do in the circumstances
attending it. A rash act is a
negligent act done precipitately.
Negligence is the genus, of which
rashness is the species. [Para 6]
[405-G-H; 406-A-B]
Andrews v. Director of Public
Prosecutions (1937) AC 576 - referred to.
2.3 Negligence is a breach of duty
imposed by law. In criminal cases, the
amount and degree of negligence are
determining factors. A question whether
the accused's conduct amounted to
culpable rashness or negligence depends
directly on the question as to what is
the amount of care and
circumspection which a prudent and
reasonable man would consider to be
sufficient considering all the
circumstances of the case. [Para 7] [406-H;
407-A-B]
2.4 Criminal rashness means hazarding a
dangerous or wanton act with the
knowledge that it is dangerous or
wanton and the further knowledge that it
may cause injury but done without any
intention to cause injury or know-
ledge that it would probably be caused.
[Para 7] [407-B]
Prabhakaran v. State of Kerala 2007
(8) SCALE 605 - referred to.
Case Law Reference
2007 (8) SCALE 605 Referred to. Para
20
AIR 1991 SC 1463 Relied on. Para 21
402 US 183: 28
L.D. 2d 711 Referred to. Para 22
CRIMINAL APPELLATE JURISDICTION :
Criminal Appeal No. 428 of 2002
From the Judgement and Order dated
21.08.2000 of the High Court of
Karnataka, Criminal R. P. No. 64 of
1999.
Anil Kr. Mishra, A. Rohen Singh, Amit
Kr. Chawla Sanjay R. Hegde, for the
Appellant.
S.N. Bhat, for the Respondent.
Subject
Sentence/Sentencing:
Sentence for imprisonment and fine for
conviction u/ss. 279, 338 and 304 A
IPC - Reduction of by confining it to
fine and waiving of custodial
imprisonment - On appeal, held: High
court order not justified - Custodial
sentence was waived without indicating
any reason - Order of trial court
restored - Penal Code, 1860 - s. 71
Award of Punishment - Criterion for
determining - Discussed.
Penal Code, 1860 - s. 304-A -
Applicability of - Discussed.
Words and Phrases - `Negligence' -
Meaning of in the context of s. 304 A
IPC.
Trial court awarded imprisonment and
imposed fine for conviction of the
respondent-accused u/ss. 279, 338 and
304-A IPC. High Court, in revision,
taking note of s. 71 IPC, waived the
custodial sentence and imposed fine.
Hence the present appeal.
Judgement
REPORTABLE
IN THE SUPREME COURT
OF INDIA
CRIMINAL APPELLATE
JURISDICTION
CRIMINAL APPEAL NO.
428 OF 2002
State of Karnataka
Appellant
Vs.
Muralidhar
Respondent
JUDGMENT
DR. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to
the judgment of a learned Single Judge
of the Karnataka High Court allowing
the Revision Petition filed by the
respondent. The respondent faced trial
for alleged commission of offence
punishable under Sections 279, 338,
304-A of the Indian Penal Code, 1860
(in short the `IPC') by learned IIIrd
Additional Sessions Judge, Mangalore.
For the offence punishable under
Section 338 IPC the respondent was
sentenced to undergo rigorous
imprisonment for six months and to pay a
fine of Rs.1,000/- with default
stipulation. For the offence punishable under
Section 304-A IPC he was sentenced to
rigorous imprisonment for one year
and to pay a fine of Rs.5,000/- with
default stipulation. The appeal was
dismissed by learned IIIrd Additional
Sessions Judge, D.K. Mangalore.
2. Background facts in a nutshell
are as follows:
The respondent had been driving
the bus on Ullal-Hejamadi route on
3.12.1995 at about 10.30 a.m. A tempo
was coming from the opposite
direction. Both the vehicles rubbed
through resulting in the right hand side
portion of the bus hitting the right
hand side portion of the tempo, as a result
of which a boy sitting at that hind
portion of the tempo died and one
passenger sustained grievous injuries.
It was in respect of this accident that
the respondent came to be prosecuted
and convicted.
The primary stand before the High
Court was that the offences were
such that the accused should not be
required to undergo imprisonment.
Accordingly, taking note of Section 71
IPC, High Court held that for the
offence under Section 338 IPC the
accused was to pay a fine of Rs.1,000/-
with default stipulation and for the
offence under Section 304-A the accused
was to pay a fine of Rs.5,000/- with
default stipulation and out of the total
2
amount of
Rs.6,000/- a sum of Rs.5,000/- was to be paid to the father of the
deceased boy.
3. Learned counsel for the
appellant-State submitted that the High Court
has not indicated any reason as to why
this was not a fit case where
custodial sentence was not to be
imposed. The High Court found that the
accused was rightly convicted for the
offence punishable under Sections
279, 338 and 304-A IPC. After having so
observed without any basis or
reason the custodial sentence was
waived and fines were imposed. It was
also noted that no separate sentence
was necessary in respect of offence
under Section 279 IPC. It is submitted
that the sentences should be
commensurate with the gravity of the
offence.
4. Learned counsel for the
respondent on the other hand submitted that
the occurrence took place long back
and, therefore, taking the overall view
waived the custodial sentence and
imposed fines.
5. In the instant case, 16 years old
boy lost his life because of the rash
and negligent acts of the respondent.
6. Section 304A speaks of causing
death by negligence. This section
applies to rash and negligence acts and
does not apply to cases where death
has been voluntarily caused. This
section obviously does not apply to cases
where there is an intention to cause
death or knowledge that the act will in
all probability cause death. It only
applies to cases in which without any
such intention or knowledge death is
caused by what is described as a rash
and negligent act. A
negligent act is an act done without doing something
which a
reasonable man guided upon those considerations which ordinarily
regulate the
conduct of human affairs would do or act which a prudent or
reasonable man
would not do in the circumstances attending it. A rash act is
a negligent act
done precipitately. Negligence is the genus, of which
rashness is the
species. It has sometimes been observed that in rashness the
action is done
precipitately that the mischievous or illegal consequences
may fall, but
with a hope that they will not. Lord Atkin in Andrews v.
Director of Public Prosecutions (1937)
AC 576 at p.583 = 2 All E.R. 552)
observed as under:
"Simple lack of care
such as will constitute civil liability
is not enough. For purposes
of the criminal law there are
degrees of negligence; and
a very high degree of
negligence is required to
be proved before the felony is
established. Probably of
all the epithets that can be
applied `recklessness' most
nearly covers the case. It is
difficult to visualize a
case of death caused by reckless
driving in the connotation
of that term in ordinary speech
which would not justify a
conviction for manslaughter;
but it is probably not all
embracing, for `recklessness'
suggests an indifference
to risk whereas the accused may
have appreciated the risk
and intended to avoid it, and
yet shown in the means
adopted to avoid the risk such a
high degree of negligence
as would justify a conviction."
7. Section 304-A applies to cases
where there is no intention to cause
death and no knowledge that the act
done in all probability will cause death.
The provision is directed at offences
outside the range of Sections 299 and
300 IPC. The provision applies only to
such acts which are rash and
negligent and are directly cause of
death of another person. Negligence and
rashness are essential elements under
Section 304-A. Culpable negligence
lies in the failure to exercise
reasonable and proper care and the extent of its
reasonableness will always depend upon
the circumstances of each case.
Rashness means doing an act with the
consciousness of a risk that evil
consequences will follow but with the
hope that it will not. Negligence is a
breach of duty imposed by law. In
criminal cases, the amount and degree of
negligence are determining factors. A
question whether the accused's
conduct amounted to culpable rashness
or negligence depends directly on
the question as to what is the amount
of care and circumspection which a
prudent and reasonable man would
consider to be sufficient considering all
the circumstances of the case. Criminal
rashness means hazarding a
dangerous or wanton act with the
knowledge that it is dangerous or wanton
and the further knowledge that it may
cause injury but done without any
intention to cause injury or knowledge
that it would probably be caused.
8. As noted above, "Rashness"
consists in hazarding a dangerous or
wanton act with the knowledge that it
is so, and that it may cause injury.
The criminality lies in such a case in
running the risk of doing such an act
with recklessness or indifference as to
the consequences. Criminal
negligence on the other hand, 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 the imperative duty of the accused
person to have adopted.
9. The distinction has been very
aptly pointed out by Holloway J. in
these words:
``Culpable rashness is
acting with the consciousness
that the mischievous and
illegal consequences may
follow, but with the
hope that they will not, and often
with the belief that the
actor has taken sufficient
precautions to prevent
their happening. The
imputability arises from
acting despite the
consciousness. Culpable
negligence is acting without
the consciousness that the
illegal and mischievous
effect will follow, but in
circumstances which show that
the actor has not
exercised the caution incumbent upon
him and that if he had, he
would have had the
consciousness. The
imputability arises from the
negligence of the civic
duty of circumspection." (See In
re: Nidamorti Nagabhusanam
7 Mad. H.C.R. 119)
10. Vehicular accidents resulting in
deaths and injuries are spiraling.
11. The Editorial under the heading
"Road Traffic Injuries & fatalities in
India - a modern epidemic" in
Indian J. Med. Res. 123, January 2006
contains some interesting observations.
The relevant portions read as
follows:
"The United
Nations General Assembly adopted a
resolution on road safety on
October 26, 2005 which
invites Member
States to implement the
recommendations of the World
Report on Road Traffic
Injury Prevention; to
participate in the first United
Nations Global Road Safety
Week; and to recognize the
third Sunday in November of
every year as the World
Day of Remembrance for Road
Traffic Victims'. This
resolution follows the
publication of The World Report
on Road Traffic Injury
Prevention by the World Health
Organization in 2004. This
report highlights the fact that
all over the world working
age people are more likely to
suffer hospitalization,
permanent disability and death due
to road traffic injuries
than most other diseases. The
situation in India is not
very different.
About 82,000 persons were
killed on Indian
roads in 2002. Official statistics
regarding serious
injuries are not reliable as they
underestimate the actual
number, but it is estimated that the
number of people
hospitalized may be 15-20 times the
number killed. In a
do-nothing scenario, it is possible
that India will have
1,20,000 - 1,30,000 road traffic
fatalities in the year
2008 and possibly 1,50,000 - 1,75,000
in 2015. Our
vision should aim at reducing the
fatalities to less than
1,00,000 in the short term (2008) and
less than 70,000
in the long term (2015).
xxx xxx
xxx
Safety measures for the near future
xxx xxx
xxx
Motor vehicle occupants: (i)
Enforcement of
seatbelt use laws countrywide; (ii)
restricting travel in
front seat of cars by children has the
potential of
reducing injuries dramatically; and
(iii) bus and truck
occupant injuries, fatalities, and
injuries caused to other
road users can be reduced significantly
by enforcing
strict observance of speed limit
regulations on
highways. Ensuring that bus timetables
and truck
movement schedules make it possible for
drivers to
observe speed limits with ease. Random
speed checking
on highways would help ensure such
measures.
xxx xxx
xxx
Road safety strategies - Long
term
Traffic calming and speed
control: (i) Aim at
implementing speed control and traffic
calming
measures in all urban areas and at
appropriate locations
on rural highways by altering road
design, vehicle
monitoring through intelligent
transport systems, and
vehicle design by the year 2015. This
measure is likely
to give us the maximum savings in terms
of lives and
serious injuries; and (ii) segregated
lanes for vulnerable
road users and buses in urban areas.
Non-motorized
transport and buses must be provided
segregated lanes
on all major arterial roads in urban
areas. India specific
designs need to be developed and phase
wise
implementation plans drawn up for all
cities.
xxx xxx
xxx
Vehicle safely: (i) All vehicles
sold in India
should meet international
crashworthiness standards by
2010; (ii) all buses and trucks should
meet pedestrian
impact standards by 2010; (iii) all
urban buses to have
low floors and automatic closing doors;
(iv)
crashworthiness standards must be
developed for all
indigenous vehicles by 2010 and
implemented by 2012;
(v) installation of Intelligent
Transport Systems (ITS)
and other modern safety devices for
assisting and
controlling drivers; and (vi) driving
under the influence
of alcohol and other drugs. A long term
strategy to
reduce drinking and driving incidence
to less than 10
per cent of all crashes needs to be
drawn up for the next
10 yr. Sensitization of the public to
the extent of the
problem. Institution of random
roadblocks and checking
on urban roads and rural highways.
Ignition interlock
on cars."
12. In "Global Road Safety"
certain revealing data have also been
provided. They read as follows:-
"THE COMING PLAGUE OF
ROAD TRAFFIC
INJURIES: A PREVENTABLE
BURDEN FOR RICH
AND POOR COUNTRIES".
13. Almost 1.2 million people are
killed each year and 20-50 million are
injured or disabled, most people are
unaware that road traffic injuries are a
leading cause of death and disability.
14. In developing countries, death
rates from vehicle crashes are rising,
and disproportionately high in relation
to the number of crashes. According
to a report published in 2000
7 Developing and transitional
countries cumulatively represent over
85 percent of all road traffic deaths
Kenya has nearly 2,000 fatalities
per 10,000 crashes. Vietnam has
over 3,000 fatalities per 10,000
crashes.
44% of all road traffic deaths
occur in the Asia/Pacific area, which
only has 16 % of the total number of
motor vehicles.
At 71,495 and 59,927 total deaths,
China and India, respectively,
had the highest number of road
fatalities in the world in 1995.-
Pedestrian deaths represent 62 % of all
traffic fatalities in Lebanon.
In most developing countries vulnerable
road users, including pedestrians,
bicycle and motor cycle riders, account
for the majority of all fatalities.
Eastern European countries represent
6% of motor vehicles, but
11% of crash fatalities worldwide.
The Latin America/Caribbean region
has the second highest crash
costs behind Asia.
15. As vehicle use in developing
countries are increasing, road traffic
injuries are expected to become the
third leading cause of death and
disability worldwide by 2020. In
developing countries, each vehicle is much
more lethal than the vehicles in
developed countries, because it most
frequently takes the lives not of
vehicle occupants, but of vulnerable road
users: pedestrians, cyclists. Many
developing countries are increasing the
rate of motorized vehicle use at up to
18% per year. In India, for example,
there has been a 23% increase in the
number of vehicles from 1990-1999
and a 60-fold increase is predicted by
2050.
16. The human toll in such accidents
is tragic. Survivors and family
members are affected not only by an
immediate death or disability, but also
lifetime psychological and physical
suffering. Crashes often result in
orphans, and some victims, as young as
infants, spend the rest of their lives
with medical facilities.
ECONOMIC IMPACT
17. In addition to the devastating
human toll, the economic impact of
road crashes is also enormous. Many of
those injured or killed are wage
earners, leaving families destitute and
without means of support. Loss of
wages, property damage, and other
factors affected by road traffic crashes
represented 4.6% of the gross national
product of the United States in 1994.
In developing countries, road traffic
crashes represent 3-5% of the GNP.
`The estimated annual cost of road
traffic crashes in developing countries
exceeds $100 billion (US). This amounts
to nearly double the total
combined development assistance these
countries receive every year from
bilateral and multi-lateral government
organizations. Globally, the estimated
annual costs of road crashes are 500
billion (US).
THIS PROBLEM IS PREVENTABLE
18. We have the tools needed to
combat this epidemic. In the developed
nations, proven methods such as
enforcement of laws regarding driving
under the influence of alcohol or
drugs, reducing speed limits, and requiring
seat belts and restraints have shown
significant reduction in traffic fatalities.
Road design and road environment,
vehicle design, and road safety
standards are also strategies that
successfully address traffic safety. For
maximum impact of RTI's, a systems
approach with multiple, scientifically
proven prevention techniques must be
employed. Education alone has been
shown to be less effective, and often
ineffective.
19. Proven interventions for
developed countries require research,
modification, and testing for
developing countries. For example, developing
countries face poorly designed and
maintained roadways, unsafe vehicles,
drivers under the influence of drugs or
alcohol, lack of national policies, and
inadequate enforcement. Success will
require significant new resources
supported by sustained political
commitment.
20. These aspects were highlighted in
Prabhakaran v. State of Kerala
(2007 (8) SCALE 605).
21. 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 the offence and the
manner in which it was executed or
committed etc. This position was
illuminatingly stated by this Court in
Sevaka Perumal etc. v. State of Tamil
Naidu (AIR 1991 SC 1463).
22. 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 MCGDautha v. State of
Callifornia: 402 US 183: 28 L.D.
2d 711 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.
23. The object should be to protect
the 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.
24. 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 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 meager sentences or
taking too sympathetic view merely on
account of lapse of time in respect of
such offences will be result-wise
counter productive in the long run and
against societal interest which needs
to be cared for and strengthened by
string of deterrence inbuilt in the
sentencing system.
25. 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".
26. This is a case where the High
Court has without considering the
relevant aspects and even without
indicating any reason, waived the
custodial sentence and imposed only
fine. The judgment therefore is clearly
unsustainable. The impugned judgment of
the High Court is set aside and
that of the trial Court is restored.
- The appeal is allowed.
(Dr. ARIJIT PASAYAT)
........................................J.
(ASOK KUMAR GANGULY)
New Delhi,
March 16, 2009
Labels----duty
of every court while awarding proper sentence, Section 304-A IPC,
'rash and negligent act' defined, u/ss. 279 and 338 and 304 (A) IPC,
Custodial sentence was waived without indicating any reason, Award of
Punishment - Criterion for determining - Discussed, s. 304-A -
Applicability of - Discussed, `Negligence' - Meaning of in the
context of s. 304 (A) IPC, s. 71 IPC, Road Safety measures,
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