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.