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SUPREME COURT OF INDIA
DEEPAK VERMA & K.S. RADHAKRISHNAN, JJ.
STATE TR.P.S.LODHI COLONY NEW DELHI - Appellant
VERSUS
SANJEEV NANDA - Respondent
Criminal Appeal No. 1168 of 2012 [Arising out of S.L.P. (Crl.) No.3292 of 2010]
Decided on : 03-08-2012.
(a) Indian Penal Code, 1860 - Section 304 Part II - Offender having knowledge that rash and negligent driving under intoxication might cause death - Still he did not have any knowledge of the victims being there and had no intention to cause death or such bodily injury to them as is likely to cause death - Offence falls under Section 304 Part II. (Para 40)
AIR 1936 PC 253 (2); (1976) 1 SCC 889; (2008) 1 SCC 791 - Relied upon
(2012) 2 SCC 648 - Distinguished impliedly
(1976) 1 SCC 889; (2008) 1 SCC 791; (1981) 4 SCC 245; (2000) 5 SCC 82; (2004) 1 SCC 525 - Referred
(b) Criminal Trial - Sentence - While sentencing mitigating and aggravating circumstances must be weighed properly - Instantly mitigating circumstances outweigh aggravating circumstances - Sentence reduced to period undergone. (Para 45)
Per K. S. Radhakrishnan, J.
(c) Motor Vehicles Act, 1988 - Section 185 r/w sections 203 and 205 - Drunken driving - Breath tests are to be carried out while driving or attempting to drive - Accused escaping from scene of occurrence - Breath tests not possible or feasible - Blood tests soon after and clinical tests next morning confirming drunken state of accused at the time of occurrence - Acceptable. (Para 28)
AIR 1965 SC 1616 - Relied upon
(d) Motor Vehicles Act, 1988 - Section 3 - An American driving licence - Not valid unless recognized in India - A driver must have a license recognised in India or issued by the Licensing Authority in India. (Para 35)
AIR 1968 SC 829 - Distinguished
(e) Motor Vehicles Act, 1988 - Section 134 - Duty of driver in accident - Accused escaping from scene of occurrence instead of helping victims - Liable for punishment under section 187 - Direction for providing medical assistance on Highways reiterated. (Para 38)
(1996) 4 SCC 37 - Relied upon
(f) Criminal Trial - Hostile witness - A growing menace - Courts should made efforts to unearth truth - Section 193 IPC should be invoked where necessary. (Para 41)
AIR 1996 SC 2766; AIR 2004 SC 524; (2010) 6 SCC 1; AIR 2006 SC 1367 - Relied upon
(g) Indian Penal Code - Section 304 Part II - Drunken driving causing death of persons attracts section 304 Part II. (Para 48)
(1976) 1 SCC 889; (2008) 1 SCC 791; (2012) 2 SCC 648; (2009) 14 SCC 771; (1976) 4 SCC 382 - Relied upon
(1981) 4 SCC 245; (2004) 1 SCC 525; (2009) 8 SCC 106; (1985) A.C. 937; (1975) 4 SCC 272; (1984) 4 SCC 116; 1991 Supp(1) SCC 39; (1971) 1 All E.R. 1089; (1989) 1 All E.R. 5; AIR 1936 PC 253; AIR 1964 SC 358; (1998) 8 SCC 493 - Referred
(h) Criminal Trial - Sentencing - Aggravating and mitigating circumstances - Age of 21 years for an urban, educated youth; and payment of compensation - Not mitigating circumstances - Sentence should be proportionate to offence. (Paras 56 and 57)
(i) Indian penal Code, 1860 - Section 304 Part II - Sentencing - Sending the accused to jail again will not serve any purpose - Fine of fifty lakhs imposed for compensation to victims of hit and run cases - In addition community service for two years with default stipulation imposed. (Paras 60 and 61)
Facts of the case:
Interpretation of Section 304 Part II and Section 304 A of the IPC falls for consideration in this appeal.
Finding of the Court:
Offence attracts section 304 Part II and not section 304A.
Result : Appeal partly allowed.
Key Points: - (!) Knowledge that act might cause death but no intent leads to 304 Part II, not 304A. - (!) Court held that knowledge can be attributed and conviction under 304 Part II valid; Court maintained that intent not shown. - (!) Judgment partly allowed; conviction under 304 Part II upheld; sentence to be that already undergone. - (!) Emphasizes duty to render aid and impact of conduct post-accident. - (!) 304A requires death by rash or negligent act not amounting to culpable homicide; distinctions clarified. - (!) Naresh Giri: 304A applies when no intent/knowledge death likely; negligence element. - (!) Pareira: scope of 304A vs 304(II) depends on knowledge/intent; seven lives case discussed. - (!) Court directs monetary and community service sanctions as alternative to further imprisonment for 304(II) case (specific to this appeal). - (!) Final order: conviction under 304 Part II restored; sentence already undergone; additional community service and Rs.50 lakh to Union of India ordered.
JUDGMENT
Deepak Verma, J.-Delay condoned.
2. Leave granted.
3. The solitary question that arises for our consideration in this appeal is whether respondent accused deserves to be held guilty of commission of offence under Section 304 Part II of the Indian Penal Code (for short IPC) or the conviction and sentence awarded to him by the High Court of Delhi, under Section 304 A of the IPC should be held to be good and legally tenable.
4. On 12.04.2010, limited notice was issued to the respondent by this Court, which reads as under:
“Issue notice confining to the nature of offence”.
Facts shorn of unnecessary details as unfolded by prosecution are mentioned hereinbelow:
5. On the intervening night of 9/10.01.1999, an unfortunate motor accident took place involving BMW Car No.M-312LYP. At the relevant point of time, it is no more in dispute that offending vehicle BMW was being driven by respondent. As per prosecution story, the said vehicle was coming from Nizamuddin side and was proceeding towards Lodhi Road. Just at the corner from where Lodhi Road starts, seven persons were standing on the road at about 4.00 a.m. In the said car, Manik Kapur and Sidharth Gupta (since discharged) were also sitting.
6. As per prosecution story, Manoj Malik (P.W.2) had started from his house to leave friends Nasir, Mehendi Hasan and his friend Gulab at Nizamudin Railway Station on foot. When they reached the petrol pump of Lodhi Road, three police officials of checking squad, Constables Rajan, Ram Raj and Peru Lal, stopped them and started checking. In the meantime, BMW car driven rashly and negligently came from Nizamuddin side at a high speed and dashed violently against them. The impact was so great and severe, that they flew in the air and fell on the bonnet and wind screen of the car. Some of them rolled down and came beneath the car. On account of this, accused lost control of the vehicle which swerved to right side of the road and ultimately hit the central verge. The persons who had come under the car were dragged up to that point. Manoj (P.W.2) who had fallen on the bonnet fell down at some distance but did not come under the wheels. After hitting the central verge, car finally stopped at some distance, respondent came out from the car and inspected the gruesome site. It is said that co-passenger Manik Kapur asked the accused to rush from the scene of occurrence. Injured persons were shouting and crying for help. But ignoring them, he drove away the car at high speed towards Dayal Singh College, even though there were still some persons beneath the car. In the said accident ultimately six of them were killed and Manoj (P.W.2) was injured. Accused then took the car to his friend Sidharth Gupta’s house at 50, Golf Links, New Delhi.
7. Prosecution story further goes to show that there another accused Rajeev Gupta, father of Sidharth Gupta with the help of two servants, accused Shyam and Bhola washed the car and destroyed the material evidence.
8. Prosecution alleges that PW.1 Hari Shankar, attendant at the petrol pump saw the accident and immediately informed telephonically his employer Brijesh Virmani, (P.W.70) who in turn informed the PCR at No.100. On getting the necessary information, police acted with promptitude. The telephonic information was recorded as DD No. 27-A.
9. Pursuant to the information being received, SI Kailash Chand reached the spot. By that time few PCR vans had already reached as the news about the accident was flashed. First to reach the spot was A.S.I. Devendra Singh (P.W.36), who carried Manoj Malik to the hospital. The other PCR vans took the remaining injured /deceased persons to the hospital.
10. S.I. Kailash Chand (P.W.58) wrote a Rukka describing the scene of crime. As per his description, he had found three persons, two constables Ravi Raj and Rajan and one person dead on the spot. He also came to know that other four injured persons were taken in another PCR van to the hospital. He found one broken nu
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