Head
Notes
Allowing the appeal in part, the court
HELD: 1.1. Section 304A of the Penal
Code, 1860. applies to rash and negligent acts and does not apply to
causes 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.
[Para 5] [1145-b-c]
1.2. 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 genes 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. [Para
5] [1145-c-d]
Andrews v. Director of Public
Prosecution, (1937) AC 576, referred to.
2. Negligence and rashness are
essential elements under Section 304A. Culpable
negligences 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 a criminal
case, the amount and degree of negligence are determining factors.
The question whether the conduct of the accused 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
may cause injury but done without any intention to cause injury or
knowledge that it would probably be caused. [Para 6]
[1145-h; 1146-a-c]
3. "Rashness" consists in
hazarding a dangerous or wanton act with the knowledge that it is so
and that it may cause injury. The criminality in such a case lies 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 change has arisen, it was the
imperative duty of the accused person to have adopted. [Para
7] [1146-d-e]
In Re: Nidamorti Nagabhusanam 7 Mad
H.C.R.119, referred to.
4. When the factual scenario of the
present case is analyzed, it is crystal clear that the appropriate
conviction would be under Section 304A IPC and not under Section 304
Part II IPC. Conviction is accordingly altered. The maximum sentences
which can be imposed for an offence punishable under Section 304A is
two years with fine or with both. The custodial sentences, therefore,
is reduced to the maximum i.e. two years.
[Para 19] [1150-g]
Venkat Subramaniam T.R. and Ramesh Babu
M.R. for the Appellant.
R. Sathish and M.T. George for the
Respondent.
Subject
Penal Code, 1860:
Section 304A-Causing death by
negligence-Negligence and rashness-Essential attributes
of-Distinction between knowledge and intention-A boy aged 10 years
was run over by a bus driven by the accused-Trial court found that no
intention had been proved but, at the same time, held that the
accused acted with the knowledge that it was likely to cause
death-Hence, the accused was convicted under S.304 part II-High Court
confirmed the conviction-Correctness of-Held:S.304A applies to rash
and negligent acts and does not apply to cases where death has been
voluntarily caused-This section does not apply to cases where there
is an intention to cause death or knowledge that the act will in all
probability cause death-A rash act is a negligent act done
precipitately-Negligence is the genes of which rashness is the
species-Negligence and rashness are essential elements under
S.304A-Culpable negligence lies in the failure to exercise reasonable
and proper care-Rashness means doing an act with the consciousness of
a risk-In a criminal case, the amount and degree of negligence are
determining factors-Whether the conduct of the accused amounted to
culpable rashness or negligence depends directly on 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 an act done without any intention to
cause injury or knowledge that it would probably be caused-On facts,
conviction is under S.304A and not under S.304 Part II-Conviction
altered to one under S.304A.
Words and Phrases:
"negligence" and
"rashness"-Meaning of-In the context of Section 304A of the
Penal Code, 1860.
According to the prosecution, a boy
aged 10 years was run over by a bus driven by the appellant-accused.
During the investigation it was revealed that the bus was being
driven with a very high speed and therefore, the appellant was
charged under Section 302 of the Penal Code, 1860.
The trial court found that no intention
had been proved in the case, but, at the same time, held that the
accused acted with the knowledge that it was likely to cause death.
Hence, the trial court held that the act committed by the appellant
was culpable homicide not amounting to murder punishable under
Section 304 Part II IPC and sentenced him to undergo rigorous
imprisonment for five years. The High Court did not accept the stand
that the case was covered under Section 304A IPC and confirmed the
conviction. Hence the appeal.
Citation
2007 AIR 2378, 2007(7 )SCR1141, ,
2007(8 )SCALE605 , 2007(9 )JT346
Judgement
CASE NO.:
Appeal (crl.) 775 of 2005
PETITIONER:
Prabhakaran
RESPONDENT:
State of Kerala
DATE OF JUDGMENT: 21/06/2007
BENCH:
Dr. ARIJIT PASAYAT & D.K. JAIN
JUDGMENT:
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the
order passed by the
learned Single Judge of the Kerala High
Court. By the
impugned order the appellant was found
guilty of the offence
punishable under Section 304 Part II of
the Indian Penal Code,
1860 (in short 'IPC'). Learned
Sessions Judge, Kozhikode, had
convicted the appellant for the offence
punishable under
Section 304 Part II IPC. The High
Court found the same to be
in order. Custodial sentence of five
years was confirmed.
2. The background facts in a nutshell
are as follows:
A boy aged 10 years residing in a
hostel of the Tribal
Welfare Department, while he was a
student of 4th standard in
a nearby school, was run over by a bus
driven by the appellant
in the middle of the road. The
investigation by the police
revealed that there was evidence to the
effect that even the
passengers in the bus were alarmed of
the enormous speed in
which it was being driven and had
cautioned the driver to stop
even crying, as they had seen the
school children crossing the
road in a queue. The investigation
also revealed that even the
children crossing the road had raised
both hands for stopping
the vehicle. The passengers and
pedestrians were of the view
that the bus was being driven at a high
speed and that they
had cried aloud to stop the bus. It
was, in spite of all these,
that the bus ran over the said student
on his head and the
bus could be stopped only 15 to 20 feet
ahead of the spot of
occurrence. In the light of the said
evidence, the investigating
officer felt that there was real
intention on the part of the
appellant/driver of the bus to cause
death of persons to whom
harm may be caused by reason of hitting
the bus and he was
charged with offence punishable under
Section 302 IPC. The
court below found that no 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. So, the act
committed by the appellant was culpable
homicide not
amounting to murder punishable under
Section 304 Part II
IPC. Convicting him for the said
offence, he was sentenced to
undergo rigorous imprisonment for five
years and to pay a fine
of Rs.15,000/- with a default sentence
of imprisonment for
three years. This was assailed in
appeal.
3. The High Court did not find any
substance in the plea of
the appellant that the accused had not
caused death either
with the intention of causing death or
with the intention to
cause such bodily injury as is likely
to cause death or with the
knowledge that he is likely to cause
such act to cause the
death. It was submitted that case is
covered under Section
304A IPC. Same was not accepted. So,
it was held that this is
a case of culpable homicide. It
accepted the stand of the
respondent-State that conviction is to
be made for culpable
homicide.
4. The respective stand taken before
the High Court was re-
iterated in this appeal.
5. 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 genes, 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."
6. 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.
7. 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.
8. 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)
9. Vehicular accidents resulting in
deaths and injuries are
spiraling.
10. 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).
Safety
measures for the near future
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.
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."
11. 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".
12. 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.
13. 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
# 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.
14. 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.
15. 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
16. 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
17. 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.
18. 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.
19. When the factual scenario of the
present case is
analysed, it is crystal clear that the
appropriate conviction
would be under Section 304 A IPC and
not Section 304 Part II
IPC. Conviction is accordingly altered.
The maximum sentence
which can be imposed for offence
punishable under Section
304A is two years with fine or with
both. The custodial
sentence, therefore, is reduced to the
maximum i.e. two years.
20. It is contended by the learned
counsel for the State that
in a case of this nature two years
sentence is grossly
inadequate. There is substance in this
submission considering
the increasing number of vehicular
accidents resulting in
death of large number of innocent
persons. It is for the
legislature to
provide for an appropriate sentence. But the
statute
presently provides for a maximum sentence of two
years.
21. The
appeal is allowed to the aforesaid extent.