2012 Supreme(SC) 31

2012 (1) Supreme 34
SUPREME COURT OF INDIA
R.M. Lodha and Jagdish Singh Khehar, JJ.
Alister Anthony Pareira — Appellant
versus
State of Maharashtra — Respondent
Criminal Appeal Nos. 1318-1320 of 2007
Decided on : 12-1-2012

VERY IMPORTANT POINTS
1. There is no impediment in law for an offender being charged for 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.
2. 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; 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 , such omission has not caused prejudice to him resulting in failure of justice.
IMPORTANT POINTS
1. 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 the imperative duty of the accused person to have adopted.
2. 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.
3. The cases of negligence or of rashness or dangerous driving do not eliminate the act being voluntary.
4. 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.

Headnote:Indian Penal Code, 1860-Sections 304 Part II, 338 and 337 -Prosecution of appellant for driving his car rashly and negligently with knowledge that people were asleep on footpath and for ramming the car over the pavement, causing death of seven persons and injuries to eight persons- At the time of incident, appellant was found to have consumed alcohol- A liquor bottle was recovered from appellant’s car-Conviction by Trial Court-Appeals thereagainst- High Court set aside acquittal of appellant under Section 304 IPC and convicted him for offences under Section 304 Part II, Section 338 and Section 337 IPC- Appeals- Plea that indictment of appellant on two charges, offence punishable under Section 304 Part II IPC and offence punishable under Section 338 IPC and his conviction for said offences was legally impermissible as charges under Section 304 Part II IPC and Section 338 IPC were mutually destructive and two charges under these Sections cannot co-exist-Held There is no incongruity, if simultaneous with offence under Section 304 Part II, a person who has 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-Hence there is no impediment in law for an offender being charged for 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-By charging appellant for offence under Section 304 Part II IPC and Section 338 IPC which is legally permissible no prejudice had been caused to him (Paras 41 to 44)

        Indian Penal Code, 1860- Section 304A –Scope and ambit of-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 death of human being; the accused caused the death and death was caused by the doing of a rash or negligent act, though it did not amount to culpable homicide of either description (Para 37)

        Indian Penal Code, 1860-Sections 304 Part II, 338 and 337 -Prosecution of appellant for driving his car rashly and negligently with knowledge that people were asleep on footpath and for ramming the car over the pavement, causing death of seven persons and injuries to eight persons- At the time of incident, appellant was found to have consumed alcohol- A liquor bottle was recovered from appellant’s car-Conviction by Trial Court-Appeals thereagainst- High Court set aside acquittal of appellant under Section 304 IPC and convicted him for offences under Section 304 Part II, Section 338 and Section 337 IPC- Appeals- Plea that neither in charge framed against appellant, the crux of the prosecution case that appellant was in a drunken condition was stated nor incriminating evidences and circumstances relating to rashness or negligence of accused in the drunken condition were put to him in the statement under Section 313 of the Code-Held if the charge under Section 304 Part II IPC framed against appellant is seen, it would be clear that ingredients of Section 304 Part II IPC were implicit in that charge-The omission of the words ‘in drunken condition’ in charge was not very material - In any case, such omission had not at all resulted in prejudice to appellant as he was fully aware of prosecution evidence which consisted of drunken condition of appellant at the time of incident (Para 50)

        Criminal Procedure Code,1973-Section 313-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; 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 , 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-Instantly it could not be said that 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 (Paras 57 to 59)

        Indian Penal Code, 1860-Sections 304 Part II, 338 and 337 -Prosecution of appellant for driving his car rashly and negligently with knowledge that people were asleep on footpath and for ramming the car over the pavement, causing death of seven persons and injuries to eight persons- Conviction by Trial Court-Appeals thereagainst- High Court set aside acquittal of appellant under Section 304 IPC and convicted him for offences under Section 304 Part II, Section 338 and Section 337 IPC- Appeals- High Court, on consideration of entire prosecution evidence reached the conclusion that accused at the time of driving car was under the influence of liquor; he drove the car in drunken condition at a very high speed; and he failed to control the vehicle and the vehicle could not be stopped before it ran over people sleeping on the pavement- The accused was also aware of the fact that at place of occurrence people sleep as accused was resident of that area- High Court took note of the fact that accused had admitted the accident and his explanation was that accident occurred due to mechanical failure and the defect that was developed in vehicle but found his explanation improbable and unacceptable- High Court also observed that factum of high and reckless speed was evident from brake marks at the site- The speeding car could not be stopped by him instantaneously- High Court held that accused could be attributed to have a specific knowledge of event that happened- No justifiable ground to take a view different from that of High Court (Paras 65, 66)

        Indian Penal Code, 1860-Sections 304 Part II, 338 and 337 -Conviction of appellant for driving his car rashly and negligently with knowledge that people were asleep on footpath and for ramming the car over the pavement, causing death of seven persons and injuries to eight persons-Appeal-Plea that appellant be released on probation of good conduct and behaviour or the sentence awarded to him be reduced to the period already undergone- 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 accused- For an offence like this which had been proved against appellant, sentence of three years awarded by High Court held to be too meagre and not adequate but since no appeal had been preferred by the State, matter for enhancement not considered-By letting the appellant away on the sentence already undergone i.e. two months in a case like this would be travesty of justice and highly unjust, unfair, improper and disproportionate to the gravity of crime- It is true that appellant had paid compensation of Rs. 8,50,000/- but no amount of compensation could relieve the family of victims from the constant agony- Held facts and circumstances of the case not justified benefit of probation to the appellant for good conduct or for any reduction of sentence-Appeals dismissed (Paras 79 to 81)

        Sentencing Policy-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 (Para 70)

        Doctrine of proportionality-The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence-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 (Para 71)

       Facts of the Case :

        A. Appellant was prosecuted herein in the instant case for driving his car rashly and negligently with knowledge that people were asleep on footpath and for ramming the car over the pavement, causing death of seven persons and injuries to eight persons. At the time of incident, appellant was found to have consumed alcohol.A liquor bottle was recovered from appellant’s car.Trial Court convicted appellant for said offence On Appeals thereagainst, High Court set aside acquittal of appellant under Section 304 IPC and convicted him for offences under Section 304 Part II, Section 338 and Section 337 IPC.

        B. Present appeals have been filed against said order of High Court.

       Findings of the Court :

        A.High Court, on consideration of entire prosecution evidence reached the conclusion that accused at the time of driving car was under the influence of liquor; he drove the car in drunken condition at a very high speed; and he failed to control the vehicle and the vehicle could not be stopped before it ran over people sleeping on the pavement. High Court held that 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 accused was also aware of the fact that at place of occurrence people sleep as accused was resident of that area. High Court took note of the fact that accused had admitted the accident and his explanation was that accident occurred due to mechanical failure and the defect that was developed in vehicle but found his explanation improbable and unacceptable. High Court also observed that factum of high and reckless speed was evident from brake marks at the site. The speeding car could not be stopped by him instantaneously- In the backdrop of said findings, High Court held that accused could be attributed to have a specific knowledge of event that happened. 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. Held there was No justifiable ground to take a view different from that of High Court.

        B. Seven precious human lives were lost by the act of accused. For an offence like this which had been proved against appellant, sentence of three years awarded by High Court held to be too meagre and not adequate but since no appeal had been preferred by the State, matter for enhancement not considered.By letting the appellant away on the sentence already undergone i.e. two months in a case like this would be travesty of justice and highly unjust, unfair, improper and disproportionate to the gravity of crime. It is true that appellant had 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 appellant sentence of three years for an offence under Section 304 Part II IPC where seven persons were killed.Held facts and circumstances of the case not justified benefit of probation to the appellant for good conduct or for any reduction of sentence. Appeals were dismissed