Supreme Court of India
ALISTER ANTHONY PAREIRAversusSTATE OF MAHARASHTRA
- Citation
- 2012 INSC 18
- Decided
- 12 January 2012
- Disposal
- Dismissed
- Bench
- RAJENDRA MAL LODHA
Holding
Charges under s.304(Part II) IPC and s.338 IPC may co‑exist for a single rash or negligent act, the omission of ‘drunken condition’ did not prejudice the accused, the evidence proved the offences beyond reasonable doubt, and the three‑year sentence stands without modification.
Summary
Alister Anthony Pareira was convicted for causing the death of seven labourers and grievous injuries to eight others by driving a car rashly and negligently while under the influence of alcohol. The Supreme Court examined whether a person could be tried and convicted under both s.304(Part II) IPC (culpable homicide not amounting to murder) and s.338 IPC (grievous hurt) for the same act, and whether the omission of the phrase ‘drunken condition’ in the charge and the failure to put certain incriminating evidence under s.313 CrPC prejudiced the trial. The Court held that the two charges can legally co‑exist, that the omission did not cause prejudice, and that the prosecution proved the offences beyond reasonable doubt. It also affirmed the three‑year rigorous imprisonment awarded by the High Court, rejecting any sentence modification or probation, and dismissed the appeals.
Issues considered
- Whether it is permissible to try and convict a person for offences under s.304(Part II) IPC and s.338 IPC for a single act of the same transaction.
- Whether the omission of the words ‘drunken condition’ in the charge and the failure to put the entire incriminating evidence before the accused under s.313 CrPC affected the fairness of the trial.
- Whether the prosecution evidence established beyond reasonable doubt the commission of offences under s.304(Part II) IPC, s.338 IPC and s.337 IPC.
- Whether the sentence awarded for the offence under s.304(Part II) IPC required any modification.
Legislation cited
- Bombay Prohibition Act, 1949s. 66(1)(b)
- Code of Criminal Procedure, 1973s. 313, s. 464
- Indian Penal Code, 1860s. 279, s. 299, s. 300, s. 304A, s. 304(Part I), s. 304(Part II), s. 336, s. 337, s. 338
- Motor Vehicles Act, 1988s. 185
Subjects
culpable homicide not amounting to murderrash drivingnegligent drivingdouble jeopardysection 304 part IIsection 338section 313 CrPCprejudicecharge framingsentencing proportionalityprobation
Judgment
[2012] 1 S.C.R. 145
ALISTER ANTHONY PAREIRA A
v.
STATE OF MAHARASHTRA
(Criminal Appeal No. 1318-1320 of 2007)
JANUARY 12, 2012
B
[R.M. LODHA AND JAGADISH SINGH KHEHAR, JJ.]
PENAL CODE, 1860:
ss.304 (Part-I/) and 338 - Causing of death and grievous c
hurt by rash and negligent driving - Permissibility of trial and
conviction of a person for both offences for a single act of the
same transaction - Held: Indictment of an accused u/ss 304
(Part II) and 338 can co-exist in a case of single rash or
negligent act where such an act is done with the knowledge 0
of likelihood of its dangerous consequences - It cannot be said
that two charges are mutually destructive - If the act is done
with the knowledge of the dangerous consequences which are
likely to follow and if death is caused, then not only that the
punishmc nt is for the act but also for the resulting homicide E
and a case may fall within s. 299 or s. 300 depending upon
the mental state of the accused viz., as to whether the act was
done with one kind of knowledge or the other or the.intention
-There is no impediment in law for an offender being charged
with the offence punishable uls 304 (Part II) and also u/ss 337 F
and 338 /PC - A person, doing an act of rash or negligent
driving, if aware of a risk that a particular consequence is
likely to result and that result occurs, may be held guilty not
only of the act but also of the result.
s.~04 (Part-II) r/w s.299 (last clause) - Seven labourers, G
while asleep killed and 8 others suffered grievous injuries by
rash and negligent driving - Nature of the offence - Held: Rash
or negligent driving on a public road with the knowledge of the
dangerous character and the likely effect of the act and
145 H
146 SUPREME COURT REPORTS [2012] 1 S.C.R.
A resulting in death may fall in the category of culpable
homicide not amounting to murder - A person, responsible
for a reckless or rash or negligent act that causes death which
he had knowledge as a reasonable man that such act was
dangerous enough to lead to some untoward thing and the
B death was likely to be caused, may be attributed with the
knowledge of the consequence, and may be fastened with
culpability of homicide not amounting to murder punishable
uls 304 (Part II) - Jn the instant case, the essential ingredients
of s. 304 (Part II) have been successfully established by the
c prosecution against the accused - The view of the High Court
being consistent with the evidence on record and law, upheld
- Judicial notice.
ss.304 (Part-II), 337 and 338 - Death of seven labourers
while asleep and grievous injuries to B others caused by rash
D and negligent driving - Sentence - Held: The facts and
circumstances of the case which have been proved by the
prosecution in bringing home the guilt of the accused for the
offence punishable u/s 304(Part II) undoubtedly show
despicable aggravated offence warranting punishment
E proportionate to the crime - Seven precious human lives were
Jost by the act of the accused - For an offence like this which
has been proved against the accused, sentence of three years
awarded by the High Court is too meagre and not adequate,
but since no appeal has been preferred by the State, the Court
F refrains from considering the matter for enhancement.
SENTENCE/SENTENCING
Sentence uls 304-A /PC - Held: The principle of
proportionality in sentencing a crime doer is well entrenched
G in criminal jurisprudence - As a matter of law, proportion
between crime and punishment bears most relevant influence
in determination of sentencing the crime doer - Court has to
take into consideration all aspects including social interest
and consciousness of the society for award of appropriate
H sentence - In view of the large number of accidental deaths
ALISTER ANTHONY PAREIRA v. STATE OF 147
MAHARASHTRA
due to speeding and drunk driving , it is high time that law A
makers revisit the sentencing policy reflected in s. 304 A /PC.
Framing of charge - Accused charged with the offences
punishable ulss.304 (Part-II) and s.338 /PC for causing death
of 7 labourers and injuries to 8 others by rash and negligent
8
driving - Words 'drunken condition' not stated in the charge -
Charge neither framed with the offence punishable u/s 185,
Motor Vehicles Act nor u/s 66 (1) (b) of Bombay Prohibition
Act - Held: Omission of the words 'in drunken condition' in the
charge is not very material and, in any case, such omission C
has not at all resulted in prejudice to the accused as he was
fully aware of the prosecution evidence which consisted of his
drunken condition at the time of incident.
CODE OF CRIMINAL PROCEDURE, 1973:
D
s. 313 - Examination of accused - Explained - Held:
. Burden is on the accused to establish that by not apprising
him of the incriminating evidence and the incu/patory
materials that had come in the prosecution evidence against
him, a prejudice has been caused resulting in miscarriage of
justice - During investigation, the police concluded that the E
rash and negligent driving of the accused by consuming
alcohol killed seven persons and caused injuries to eight
others - The conclusion drawn on the completion of
investigation was a/so put to him - Neither the doctor, who
examined the accused immediately after the incident and F
reported him to be in drunken condition, nor the Investigating
Officer, who deposed of having received the chemical
examination report, were cross-examined in this respect - It
cannot be said that the accused was not made fully aware of
the prosecution evidence that he had driven the car rashly or G
negligently in a drunken condition - He had full opportunity
to say what he wanted to say with regard to the prosecution
evidence.
The appellant was charged with offences punishable H
148 SUPREME COURT REPORTS [2012) 1 S.C.R.
A u/ss 304 (Part II) and 338 IPC for causing death of 7
labourers and grievous injuries to 8 others who were
sleeping on footpath, by running a speeding car over
them. The trial court convicted the appellant of the
offences punishable u/ss 304 A and 337 IPC and
B sentenced him to simple imprisonment for six months
with a fine of Rs. 5 lakh u/s 304 A and simple
imprisonment for 15 days u/s 337 IPC. The High Court
convicted the accused u/ss 304 (Part II), 338 and 337 IPC
and sentenced him to undergo rigorous imprisonment for
c 3 years u/s 304 (Part II) with a fine of Rs. 5 Lakh, rigorous
imprisonment for one year u/s 338, and rigorous
imprisonment for six months u/s 337 IPC.
In the appeals filed by the accused the questions for
consideration before the Court were:
D
(I) 'Whether it is permissible to try and convict a
person for the offence punishable under
Section 304 (Part II) IPC and the offence
punishable under Section 338 IPC for a single
E act of the same transaction?"
(ii) Whether by not charging the appellant of
'drunken condition' and not putting to him the
entire incriminating evidence let in by the
prosecution, (fhrticularly the evidence relating
F to appellant's drunken condition, afthe time of
his examination u/s 313 of the Code, the trial
and conviction of the appellant got affected?
(iii) Whe~her prosecution evidence established
G beyond reasonable doubt the commission of
the offences by the appellant punishable u/ss
304 (Part II), 338 and 337 IPC?
(iv) Whether sentence awarded to the appellant by
the High Court for the offence punishable u/s
H
ALISTER ANTHONY PAREIRA v. STATE OF 149
MAHARASHTRA
304 (Part II) IPC required any modification? A
Dismissing the appeals, the Court
HELD: 1.1. There is no impediment in law for an
offender being charged for the offences punishable u/s
304 (Part II) IPC and also u/ss 337 and 338 IPC. The two 8
charges u/ss 304 (Part II) and 338 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. It cannot be said that two
charges are mutually destructive. [para 39 and 43] [170- C
F; 171-H; 172-A]
1.2. Rash or negligent driving on a public road with
the knowledge of the dangerous character and the likely
effect of the act and resulting in death may fall in the D
category of culpable homicide not amounting to murder.
A person, doing an act of rash or negligent driving, If
aware of a risk that a particular consequence is likely to·
result and that result occurs, may be held guilty not only
of the act but also of the result. As a matter of law· in view E
of the provisions of the IPC • the cases which fall within
last clause of s. 299, but not within clause 'fourthly' of
s.300, may cover the cases of rash or negligent act done
with the knowledge of the likelihood of its dangerous
consequences and may entail punishment u/s 304 (Part F
II) IPC. A person, responsible for a reckless or rash or
negligent act that causes death which he had knowledge
as a reasonable man that such act was dangerous
enough to lead to some untoward thing and the death
was likely to be caused, may be attributed with the
knowledge of the consequence and may be fastened with G
culpability of homicide not amounting to murder and
punishable u/s 304 (Part II) IPC. [para 40-41] [171-8-F]
1.3. Section 304A IPC takes out of its ambit the cases
of death of any person by doing any rash or negligent H
150 SUPREME COURT REPORTS (2012] 1 S.C.R.
A act amounting to culpable homicide of either description.
Applicability of s. 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 s.
B 304A IPC is death caused due to rash or negligent act.
The three things which are required to be proved for an
offence punishable u/s 304A are : (1) death of human
being; (2) the accused caused the death and (3) the death
was caused by the doing of a rash or negligent act,
c though it did not amount to culpable homicide of either
description. Like s. 304A, ss. 279, 336, 337 and 338 IPC
are attracted for only the negligent or rash act.[para 31,
37 and 38) [168-E-F; 170-A-D]
Empress of India v. /du Beg 1881(3) All 776 - referred
D to.
1.4. By charging the appellant for the offence
punishable u/ s 304 (Part II) and 338 IPC, no prejudice has
been caused to him. The appellant was made fully aware
E of the charges against him and there is no failure of
justice. [para 44) [172-B-C]
In Prabhakaran Vs. State of Kera/a 2007 (7) SCR 1141
=2007 (14) sec 269 - distinguished
F 2.1. It is a fact that no charge u/s 185 of the Motor
Vehicles Act, 1988 and s. 66(1)(b) of the Bombay
Prohibition Act, 1949 was framed against the appellant.
It is also a fact that in the charge framed against the
·appellant for offence u/s 304 (Part II) IPC, the words
G 'drunken condition' are not stated. However, if the charge
u/s 304 Part II IPC framed against the appellant is seen, it
would be clear that the ingredients of s.304 Part 11 IPC are
implicit in that charge. The omission of the words 'in
drunken condition' in the charge is not very material and,
H in any case, such omission has not at all resulted in
ALISTER ANTHONY PAREIRA v. STATE OF 151
MAHARASHTRA
prejudice to the appellant as he was fully aware of the A
prosecution evidence which consisted of drunken
condition of the appellant at the time of incident. [para 47
and 50] [174-8-D; 176-B-C]
Anna Reddy Sambasiva Reddy & Ors. vs. State of
8
Andhra Pradesh 2009 (6) SCR 755 = 2009 (12 ) SCC 546;
Jai Dev Vs. State of Punjab 1962 SCR 489 =AIR 1963 612;
and Shivaji Sahabrao Bobade and Anr. Vs. State of
Maharashtra 2008 (10) SCR 1115 = 2008 (1) SCC 328 -
relied on
c
Asraf Ali Vs. State of Assam 2005 Suppl. (1) SCR 562
= 2005 (5) sec 554 -referred to.
2.2. As regards the examination of the accused u/s
313 CrPC, from the decided cases, the legal position 0
appears to be this : 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 E
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; firstly, if having regard to ail the questions put
to him, he was afforded an opportunity to explain what
he wanted to say in respect of prosecution case against F
him and, secondly, 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 G
against him, a prejudice has been caused resulting in
miscarriage of justice. [para 57] [179-E-H]
2.3. In the instant case, the accused, in his statement
u/s 313, was informed about the evidence relating to the H
152 SUPREME COURT REPORTS [2012] 1 S.C.R.
A incident. During investigation, the police concluded that
the rash and negligent driving of the appellant by
consuming alcohol caused the death of seven persons
and injury to the eight persons. The conclusion drawn on
the completion of investigation was also put to him. The
B appellant's attention was also invited to the materials
such as photographs, mechanical inspections of the car,
seized articles, liquor bottle, etc. Neither PW-1, the doctor,
who examined the accused immediately after the incident
and found h·im in drunken condition, nor PW 18, the
C investigating officer, who deposed having received the
chemical examiner's report, were cross examined by the
defence in this respect. Thus, it cannot be said that the
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
0
what he wanted to say with regard to the prosecution
evidence. [para 51,53,54 and 58) [176-D; 180-A, F; 177-B;
180-G-H; 181-A]
3.1. The High Court has held: (1) the accused at the
E time of driving the car was under the influence of liquor;
(2) he drove the car in drunken condition at a very high
speed; and (3) he failed to control the vehicle and the
vehicle could not be stopped before it ran over the
people sleeping on the pavement. The High Court took
F judicial notice of the fact that in Mumbai people do sleep
on pavements. The accused was also aware of the fact
that at the place of occurrence people sleep, as he was
a resident of that area. The High Court took note of the
fact that the accused had admitted the accident and his
G explanation was that the accident occurred due to
mechanical failure and the defect that was developed in
the vehicle but found his explanation improbable and
unacceptable. The High Court held that the accused
r.ould be attributed to have a specific knowledge of the
H
ALISTER ANTHONY PAREIRA v. STATE OF 153
MAHARASHTRA
event that happened. It, thus, concluded that the accused A
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. [para 65] [184-E-H; 185-A-D]
B
3.2. There is no justifiable ground to take a view
different from that of the High Court. The evidence and
materials on record prove beyond reasonable doubt that
the appellant can be attributed with knowledge that his
act of driving the vehicle at a high speed in the rash or C
negligent manner was dangerous enough and he knew
that one result would very likely be that people who were
asleep on the pavement may be hit, should the vehicle
go out of control. The essential ingredients of s. 304 (Part
II) IPC have been successfully established by the
prosecution against the appellant. The High Court noticed D
that two injured persons, namely, PW-6 and PW-8 had
sustained injuries as covered by the 'grievous' hurt u/s
320 IPC. Charge u/s 338 IPC against the appellant is, thus,
clearly established. This Court upholds the view of the
High Court being consistent with the evidence on record E
and law. [para 66-67] [185-E-H; 186-AJ
3.3. Insofar as charge u/s 337 IPC is concerned, it is
amply established from the prosecution evidence that
PW-5, PW-7, PW-9 and PW-10 received various injuries; F
they suffered simple hurt. The trial court as well as the
High Court were justified in convicting the appellant of
the offence punishable u/s 337 IPC as well. [para 68] [186-
EJ
4.1. One of the prime objectives of the criminal law G
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. The courts have evolved certain principles: twin
H
154 SUPREME COURT REPORTS [2012] 1 S.C.R.
A 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
B attendant circumstances.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
c has to take into consideration all aspects including social
interest and consciousness of the society for award of
appropriate sentence. [para 70-71) [187-8-E]
State of Karnataka v. Krishnappa 2000 (2) SCR 761 =
2000 (4) sec 75 - relied on
D
Dhananjoy Chatterjee alias Dhana v. State of WB. 1994
=
(1) SCR 37 1994 (2) SCC 220 ; Ravji alias Ram Chandra
=
v. State of Rajasthan 1995 ( 6 ) Suppl. SCR 195 1996 (2)
SCC 175; State of M.P. v. Ghanshyam Singh 2003 (3) Suppl.
=
E SCR 618 2003 (8) SCC 13, Surjit Singh v. Nahara Ram &
=
Anr. 2004 Suppl. (3 ) SCR 356 2004 (6) SCC 513, State
of M.P. v. Munna Choubey 2005 (1) SCR 781 = 2005 (2)
SCC 71 O; Hari Singh v. Sukhbir Singh & Ors. 1988 (2) Suppl.
=
SCR 571 1988 (4) SCC 551 ; Sarwan Singh & Ors. v. State
F of Punjab 1979 ( 1 ) SCR 383 = 1978 ( 4) sec 111; and
Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. & Anr. 2007
=
(4) SCR 1122 2007 (6) sec 528 - distinguished.
4.2. The facts and circumstances of the instant case
which have been proved by the prosecution in bringing
G home the guilt of the accused u/s 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 the accused.
For an offence like this which has been proved against
H the appellant, sentence of three years awarded by the
ALISTER ANTHONY PAREIRA v. STATE OF 155
MAHARASHTRA
High Court is too meagre and not adequate but since no A
appeal has been preferred by the State, this Court refrain
from considering the matter for enhancement. The facts
and circumstances of the case do not justify benefit of
probation to the appellant for good conduct or for any
reduction of sentence. [para 79-80] (194-C-G] 8
4.3. In view of the large number of accidental deaths
due to speeding and drunk driving, it is high time that law
makers revisit the sentencing policy reflected in s. 304 A
IPC. [para 78] [193-H; 194-A-B]
c
Ghulam Din Buch .vs. State of J &K 1996 ( 3) SCR 1121
= 1996 (9) SCC 239; Ku/dip Singh & Ors. vs. State of Delhi
2003(12) SCC 528; Jai Prakash v. State (Delhi
Administration) 1991 (1) SCR 202 = 1991 (2) SCC 32 and
Joti Parshad v. State of Haryana 1993 (2) Suppl. SCC 497; D
Willie (William) Slaney v. State of Madhya Pradesh 1955
SCR 1140 =1956 AIR 116 Dalbir Singh v. State of U.P. 2004
(5) SCC 334; Shivaji Sahabrao Boliade and another v. State
of Maharashtra 1974 (1) SCR 489 = 1973 (2) SCC 793;
=
Dalbir Singh v. State of Haryana 2000 (3) SCR 1000 2000 E
(5) SCC 82, Shailesh Jasvantbhai and another v. State of
=
Gujarat and others 2006 (1) SCR 477 2006 (2) SCC 359
and Manish Ja/an v. State of Kamataka 2008 (8 ) SCC 225
- cited.
Case Law Reference: F
1996 (3) SCR 1121 cited para 16
2003(12) sec 528 cited para 16
1991 (1) SCR 202 cited para 21 G
1993 ( 2 ) Suppl. sec 497 cited para 21
1955 SCR 1140 cited para 21
2004 (5) sec 334 cited para 21
H
156 SUPREME COURT REPORTS [2012] 1 S.C.R.
A 2009 (6) SCR 755 relied on para 21
and 49
1974 (1) SCR 489 cited para 22
2000 (2) SCR 761 cited para 22
B 2000 (3) SCR 1000 cited para 23
2006 (1) SCR 477 cited para 23
2008 (8) sec 225 cited para 23
c 1881(3) All 776 referred to para 35
2007 (7) SCR 1141 relied on para 45
1962 SCR 489 relied on para 54
2008 (10) SCR 1115 relied on para 55
D
2005 Suppl. (1) SCR 562 referred to para 75
1994 (1) SCR 37 distinguished para 76
1995 (6) Suppl. SCR 195 distinguished para 76
E
2003 (3) Suppl. SCR 618 distinguished para 76
2004 (3) Suppl. SCR 356 distinguished para 76
2005 (1) SCR 781 distinguished para 76
F 1988 (2) Suppl. SCR 571 distinguished para 77
1979 (1) SCR 383 distinguished para 77
2007 (4) SCR 1122 distinguished para 77
G CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1318-1320 of 2007.
From the Judgment & Order dated 06.09.2007 of the High
Court of Judicature at Bombay in Crl. Appeal Nos. 430, 566 &
475 of 2007.
H
ALISTER ANTHONY PAREIRA v. STATE OF 157
MAHARASHTRA
U.U. Lalit, Manjula Rao, Nitin Sangra, Satyajeet Saha, V.D. A
Khanna for the Appellant.
Sanjay Kharde, Sachin Patil (for Asha Gopalan Nair) for
the Respondent.
The Judgment of the Court was delivered by S
R.M. LODHA, J. 1. On the South-North Road at the East
side of Carter Road, Sandra (West), Mumbai in the early hours
of November 12, 2006 between 3.45 - 4.00 a.m., a car ran into
the pavement killing seven persons and causing injuries to eight C
persons. The appellant - Alister Anthony Pareira - was at the
wheels. He has been convicted by the High Court for the
offences punishable under Sections 304 Part II, 338 and 337
of the Indian Penal Code, 1860 (IPC).
2. The prosecution case against the appellant is this: the D
repair and construction work of the Carter Road, Sandra (West)
at the relevant time was being carried out by New India
Construction Company. The labourers were engaged by the
construction company for executing the works. The temporary
sheds (huts) were put up for the residence of labourers on the E
pavement. In the night of November 11, 2006 and November
12, 2006, the labourers were asleep in front of their huts on the
pavement. Between 3.45 to 4.00 a.m., that night, the appellant
while driving the car (corolla) bearing Registration No. MH-01-
R-580 rashly and negligently with knowledge that people were F
asleep on footpath rammed the car over the pavement; caused
death of seven persons and injuries to eight persons. At the
time of incident, the appellant was found to have consumed
alcohol. A liquor bottle was recovered from the appellant's car.
On his medical examination, he was found to have 0. 112% w/ G
v liquor (ethyl alcohol) in his blood. The appellant was fully
familiar with the area being the resident of Carter Road.
3. The contractor-Panchanadan Paramalai Harijan (PW-
2) - who had engaged the labourers and witnessed the incident H
158 SUPREME COURT REPORTS (2012] 1 S.C.R.
A reported the matter immediately to the Khar Police Station. His
statement (Ex. 13) was recorded and based on that a first
information report (No. 838) was registered under Section 304,
279, 336, 337, 338 and 427 IPC; Section 185 of the Motor
Vehicles Act, 1988 and Section 66 (1)(b) of Bombay Prohibition
B Act, 1949.
4. On completion of investigation, the charge sheet was
submitted against the appellant by the Investigating Officer in
the court of Magistrate having jurisdiction. The appellant was
C committed to the Court of Sessions and was tried by 2nd
Adhoc Additional Sessions Judge, Sewree, Mumbai.
5. The indictment of the appellant was on two charges. The
two charges read:-
D "(i) that on November 12, 2006 between 3.45 to 4.00
a.m. you have driven the car bearing No. MH-01-
R-580 rashly and negligently with knowledge that
people are sleeping on footpath and likely to cause
death of those persons slept over footpath and
thereby caused the death of seven persons who
E
were sleeping on footpath on Carter Road and
thereby committed an offence punishable under
Section 304 Part II IPC.
(ii) on above date, time and place you have driven the
F vehicle in rashly and negligent manner and thereby
caused grievous injury to seven persons who were
sleeping on footpath and thereby committed an
offence punishable under Section 338 IPC."
G 6. The prosecution, to prove the above charges against
the appellant, tendered oral as well as documentary evidence.
In all, 18 witnesses, namely, Dr. Nitin Vishnu Barve (PW-1),
Panchanadan Paramalai Harijan (PW-2), Ramchandra
Chakrawarti (PW-3), Pindi Ramu (PW-4), Sriniwas Raman
H Pindi (PW-5), Sm!. Mariamma Shingamana (PW-6), Sm!.
ALISTER ANTHONY PAREIRA v. STATE OF 159
MAHARASHTRA [R.M. LODHA, J.]
Prema Chingaram (PW-7), Jagan Singaram (PW-8), Sigamani A
Shankar Pani (PW-9), Mallikarjun Bajappa Motermallappa
(PW-10), J.C. Cell Mendosa (PW-11 ), Praveen Salian Mohite
(PW-12), Limbaji Samadhan Ingle (PW-13), Dr. Sharad
Maniklal Ruia (PW-14), Rajendra Nilkanth Sawant (PW-15),
Basraj Sanjeev Mehetri (PW-16), Meenakshi.Anant Gondapatil B
(PW-17) and Somnath Baburam Phulsunder (PW-18) were
examined. The complaint, spot panchnama along with sketch
map, C.A. Reports and other documents were also proved.
7. The statement of the appellant under Section 313 of the
Criminal Procedure Code, 1973 (for short, 'the Code') was C
recorded. He admitted that he was driving the car no. MH-01-
R-580 at the relevant time and the accident did occur but his
explanation was that it happened on account of failure of engine
and mechanical defect in the car and there was no negligence
or rashness on his part. D
8. The 2nd Adhoc Additional Sessions Judge, Sewree,
Mumbai, on April 13, 2007 convicted the appellant for the
offences punishable under Sections 304A and 337 IPC. The
court sentenced him to suffer simple imprisonment of six E
months with fine of Rs. 5 lakhs for the offence under Section
304A IPC and in default further suffer simple imprisonment of
one month and simple imprisonment of 15 days for the offence
under Section 337 IPC. Both the sentences were ordered to
run concurrently.
F
9. On April 19, 2007, the Bombay High Court took suo
motu cognizance of the judgment and order dated April 13,
2007 passed by the 2nd Adhoc Additional Sessions Judge,
Sewree and issued notice to the State of Maharashtra, the
appellant and to the heirs of the deceased and also to the G
injured persons.
10. The State of Maharashtra preferred criminal appeal
(No. 566 of 2007) under Section 378(3) of the Code challenging
the acquittal of the appellant under Sections 304 Part II and 338 H
160 SUPREME COURT REPORTS [2012] 1 S.C.R.
A IPC. Another criminal appeal (No. 430 of 2007) was also
preferred by the State of Maharashtra seeking enhancement
of sentence awarded to the appellant for the offence under
Section 304A and Section 337 IPC by the trial court.
11. The appellant also preferred criminal appeal (No. 475/
8 2007) for setting aside the judgment and order dated April 13,
2007 passed by the trial court convicting him under Section
304A and Section 337 IPC and the sentence awarded to him
by the trial court.
C 12. All these matters were heard together by the High Court
and have been disposed of by the common judgment on
September 6, 2007. The High Court set aside the acquittal of
the appellant under Section 304 IPC and convicted him for the
offences under Section 304 Part II, Section 338 and Section
o 337 IPC. The High Court sentenced the appellant to undergo
rigorous imprisonment for three years for the offence punishable
under Section 304 Part II IPC with a fine of Rs. 5 lakhs. On
account of offence under Section 338 IPC, the appellant was
sentenced to undergo rigorous imprisonment for a term of one
E year and for the offence under Section 337 IPC rigorous
imprisonment for six months. The High Court noted that fine
amount as per the order of the trial court had already been
distributed to the families of victims.
13. It is from the above judgment of the High Court that the
F present appeals have been preferred by the appellant.
14. A great deal of argument in the hearing of the appeals
turned on the indictment of the appellant on the two charges,
namely, the offence punishable under Section 304 Part II IPC
c and the offence punishable under Section 338 IPC and his
conviction for the above offences and also under Section 337
IPC. Mr. U.U. Lalit, learned senior counsel for the appellant
argued that this was legally impermissible as the charges under
Section 304 Part II IPC and Section 338 IPC were mutually
H destructive and the two charges under these Sections cannot
ALISTER ANTHONY PAREIRA v. STATE OF 161
MAHARASHTRA [R.M. LODHA, J.]
co-exist. His submission was that the appellant was charged A
for the above offences for committing a single act i.e., rash or
negligent for causing injuries to eight persons and at the same
time committed with knowledge resulting in death of seven
persons which is irreconcilable and moreover that has caused
grave prejudice to the appellant resulting in failure of justice. B
15. Mr. U.U. Lalit, learned senior counsel also argued that
no question was put to the appellant in his statement under
Section 313 of the Code about his drunken condition or that
he was under the influence of alcohol and, thus, had knowledge
that his act was likely to result in causing death. CA Report (Ex. C
49) that blood and urine of the appellant had alcohol content
and the evidence of PW-1 that he found the appellant in
drunken condition and his blood sample was taken were also
not put to the appellant. These incriminating evidences, learned
senior counsel submitted, cannot form basis of conviction. The D
conclusion arrived at by the Investigating Officers (PW-17 and
PW-18) regarding drunken condition of the appellant which was
put to the appellant in his statement under Section 313 of the
Code was of no legal use. Moreover, PW-17 and PW-18 have
not deposed before the court that the appellant was found in E
drunken condition much less under the influence of liquor.
Learned senior counsel would thus submit that the sole basis
of the appellant's conviction under Section 304 Part-II IPC that
the appellant had knowledge that his reckless and negligent
driving in a drunken condition could result in serious F
consequences of causing a fatal accident cannot be held to
have been established. In this regard, learned senior counsel
relied upon two decisions of this Court, namely, (i) Ghulam Din
Buch & Ors. v. State of J & K1 and (ii) Ku/dip Singh & Ors. v.
State of Delhi2. G
16. Mr. U.U. Lalit vehemently contended that no charge
was framed that the appellant had consumed alcohol. Moreover,
1. 1995 (9) sec 239.
2. 2003 (12) sec s2a. H
162 SUPREME COURT REPORTS [2012] 1 S.C.R.
A he submited that no reliance could be placed on C.A. Report
(Ex. 49) as the evidence does not satisfactorily establish that
the samples were kept in safe custody until they reached the
CFSL. Moreover, no charge was framed by the court against
the appellant under Section 185 of the Motor Vehicles Act, 1988
B and Section 66(1)(b) of the Bombay Prohibition Act, 1949.
17. Learned senior counsel argued that appellant's
conviction under Section 304A, 338 and 337 IPC was not
legally sustainable for more than one reason. First, no charge
C under Section 304A IPC was framed against the appellant as
he was charged only under Section 304 Part 11 IPC and Section
338 IPC which are not the offences of the same category. In
the absence of charge under Section 304A IPC, the appellant
cannot be convicted for the said offence being not a minor
offence of Section 304 Part II IPC. The charge under Section
· D 338 IPC does not help the prosecution as by virtue of that
charge the appellant cannot be convicted under Section 304A
IPC being graver offence than Section 338 IPC. Secondly, the
accident had occurred not on account of rash or negligent act
of the appellant but on account of failure of the engine. He
E referred to the evidence of Rajendra Nilkanth Sawant (PW-15)
who deposed that he could not state if the accident took place
due to dislodging of right side wheel and dislodging of the
engine from the foundation. In the absence of any firm opinion
by an expert as regards the cause of accident, the possibility
F of the accident having occurred on account of mechanical
failure cannot be ruled out. Thirdly, in the absence of medical ·
certificate that the persons injured received grievous injuries,
charge under Section 338 IPC was not established.
G 18. Learned senior counsel lastly submitted that in case
the charges against appellant are held to be proved, having
regard to the facts, namely, the age of the appellant at the time
of the accident; the appellant being the only member to support
his family - mother and unmarried sister - having lost his father
H during the pendency of the present appeals; the fine and
ALISTER ANTHONY PAREIRA v. STATE OF 163.
MAHARASHTRA [R.M. LODHA, J.]
compensation of Rs. 8.5 lakhs having been paid and the A
sentence of two months already undergone, the appellant may
be released on probation of good conduct and behavior or, in
the alternative, the sentence may be reduced to the period
already undergone by the appellant.
B
19. On the other hand, Mr. Sanjay Kharde, learned counsel
for the State of Maharashtra stoutly defended the judgment of
the High Court. He argued that the fact that labourers were
asleep on the footpath has gone unchallenged by the defence.
He would submit that the drunken condition of the appellant is C
fully proved by the evidence of PW-1. Further, PW-1 has not at
all been cross-examined on this aspect. The recovery of liquor
bottle is proved by the evidence of spot panchas (PW-11 and
PW-16). They have not been cross examined in this regard.
PW-17 collected blood sample of the appellant from PW-1 and
then PW-18 forwarded the blood sample to the chemical D
analyzer along with the forwarding letter. The appellant has not
challenged C.A. Report (Ex. 49) in the cross-examination of
PW-18.
20. Learned counsel for the State submitted that the E
involvement of the appellant in the incident has been fully
established by the evidence of PW-13 who was an eye-witness
and working as a watchman at construction site. Moreover, the
appellant was apprehended immediately after the incident.
There is no denial by the appellant about occurrence of the F
accident. The defence of the appellant was that the accident
happened due to engine and mechanical failure but the
appellant has failed to probablise his defence. He referred to
the evidence of PW-15 - motor vehicle inspector - to show that
the brake and the gear of the car were operative. G
21. Learned counsel for the State referred to the evidence
of injured witnesses and also the evidence of PW-12 and PW-
14 who issued medical certificates and submitted that the
prosecution has established beyond reasonable doubt that the
knowledge was attributable to the accused as he was driving H
1.64 SUPREME COURT REPORTS [2012] 1 S.C.R
A the car in a drunken condition at a high speed. The accused
had the knowledge, as he was resident of the same area. that
the labourers sleep at the place of occurrence. Learned counsel
submitted that the evidence on record and the attendant
circumstances justify attributability of actual knowledge to the
B appellant and the High Court rightly held so. In this regard, the
learned counsel for the State placed reliance upon two
decisions of this Court in Jai Prakash v. State (Delhi
Administration) 3 and Joti Parshad v. State of Haryana 4 . He
disputed that there was any error in the framing of charge. He
c would contend that in any case an error or omission in framing
of charge or irregularity in the charge does not invalidate the
conviction of an accused. The omission about the drunken .
condition of the accused in the charge at best can be said to I
be an irregularity but that does not affect the conviction. In this
0 regard, he relied upon Section 464 of the Code and the
decisions of this Court in Willie (William) Slaney v. State of
Madhya Pradesh 5 , Dalbir Singh v. State of U. P. 6 and
Annareddy Sambasiva Reddy and others v. State of Andhra
Pradesh 7.
E 22. Mr. Sanjay Kharde submitted that by not putting C.A.
Report (Ex. 49) to the appellant in his statement under Section
313 of the Code, no prejudice has been caused to him as he
admitted in his statement under Section 313 of the Code that
he was fully aware about the statement of the witnesses and
F exhibits on record. In this regard, learned counsel relied upon
decision of this Court in Shivaji Sahabrao Bobade and
another v. State of Maharashtra 8 •
G 3. 1991 (2) sec 32.
4. 1993 SUPP (2) sec 497.
5. AIR 1956 SC 116.
6. 2004 (5) sec 334.
1. 2009 c12i sec 546.
H s. 1973 (2) sec 793.
ALISTER ANTHONY PAREIRA v. STATE OF 165
MAHARASHTRA [R.M. LODHA, J.]
23. Lastly, learned counsel for the State submitted that the A
circumstances pointed out by the learned senior counsel for the
appellant do not justify the benefit of probation to the appellant
or reduction of the sentence to the penod already undergone.
He submitted that seven innocent persons lost their lives and
eight persons got injured due to the act of the appellant and, B
therefore, no sympathy was called for. He submitted that
sentence should be proportionate to the gravity of offence. He
relied upon the decisions of this Court in State of Kamataka
v. Krishnappa 9 , Da/bir Singh v. State of Haryana 10 , Shailesh
Jasvantbhai and another v. State of Gujarat and others11 and c
Manish Ja/an v. State of Kamatakc; 12 •
24. On the contentions of the learned senior counsel for
the appellant and the counsel for the respondent, the following
questions arise for our consideration :
D
(i) Whether indictment on the two charges, namely, the
offence punishable under Section 304 Part II IPC
and the offence punishable under Section 338 IPC
is mutually destructive and legally impermissible?
In other words, whether it is permissible to try and E
convict a person for the offence punishable under
Section 304 Part II IPC and the offence punishable
under Section 338 IPC for a sin.gle act of the same
transaction?
(ii) Whether by not charging the appellant of 'drunken F
condition' and not putting to him the entire
incriminating evidence let in by the prosecution,
particularly the evidence relating to appellant's
drunken condition, at the time of his examination G
9. 2000 (4) sec 75.
10. 2000 (5) sec 82.
11. 2ooe (2) sec 359.
12. 2008 (8) sec 225. H
166 SUPREME COURT REPORTS [2012] 1 S.C.R.
A under Section 313 of the Code, the trial and
conviction of the appellant got affected?
(iii) Whether prosecution evidence establishes beyond
reasonable doubt the commission of the offences
by the appellant under Section 304 Part II, IPC,
B
Section 338 IPC and Section 337 IPC?
(iv) Whether sentence awarded to the appellant by the
High Court for the offence punishable under Section
304 Part II IPC requires any modification?
c
re: question (i)
25. Section 304 IPC provides for punishment for culpable
homicide not amounting to murder. It reads as under:
D "S.304. - Punishment for culpable homicide not
amounting to murder - Whoever commits culpable
homicide not amounting to murder shall be punished with
imprisonment for life or imprisonment of either description
for a term which may extend to ten years, and shall also
E be liable to fine, if the act by which the death is caused is
done with the intention of causing death, or of causing such
bodily injury as is likely to cause death, or with
imprisonment of either description for a term which may
extend to ten years, or with fine, or with both, if the act is
F done with the knowledge that it is likely to cause death,
but without any intention to cause death, or to cause such
bodily injury as is likely to cause death".
26. The above Section is in two parts. Although Section
does not specify Part I and Part II but for the sake of
G convenience, the investigators, the prosecutors, the lawyers, the
judges and the authors refer to the first paragraph of the Section
as Part I while the second paragraph is referred to as Part II.
The constituent elements of Part I and Part II are different and,
consequently, the difference in punishment. For punishment
H under Section 304 Part I, the prosecution must prove: the death
AUSTER ANTHONY PAREIRA v. STATE OF 167
MAHARASHTRA [R.M. LODHA, J.]
of the person in question; that such death was caused by the A
act of the accused and that the accused intended by such act
to cause death or cause such bodily injury as was likely to
cause death. As regards punishment for Section 304 Part II,
the prosecution has to prove the death of the person in
question; that such death was caused by the act of the accused B
and that he knew that such act of his was likely to cause death.
In order to find out that an offence is 'culpable homicide not
amounting to murder' - since Section 304 does not define this
expression - Sections 299 and 300 IPC have to be seen.
Section 299 IPC reads as under: c
"S.-299. • Culpable homicide.-Whoever causes death
by doing an act with the intention of causing death, or with
the intention of causing such bodily injury as is likely to
cause death, or with the knowledge that he is likely by such
act to cause death, commits the offence of culpable D
homicide." ·
27. To constitute the offence of culpable homicide as
defined in Section 299 the death must be caused by doing an
act: (a) with the intention of causing death, or (b) with the E
intention of causing such bodily injury as is likely to cause
death, or (c) with the knowledge that the doer is likely by such
act to cause death.
28. Section 300 deals with murder and also provides for
exceptions. The culpable homicide is murder if the act by which F
the death is caused is done: (1) with the intention of causing
death, (2) with the intention of causing such bodily injury as the
offender knows to be likely to cause the death of the person to
whom the harm is caused, or (3) with the intention of causing
such bodily injury as is sufficient in the ordinary course of nature G
to cause death, or (4) with the knoW!edge that it is so imminently
dangerous that it must, in all probability, cause death or such
bodily injury as is likely to cause death and commits such act
without any excuse for incurring the risk of causing· death or
such injury as aforesaid. The exceptions provide that the H
168 SUPREME COURT REPORTS [2012] 1 S.C.R.
A culpable homicide will not be murder if that act is done with the
intention or knowledge in the circumstances and subject to the
conditions specified therein. In other words, the culpable
homicide is not murder if the act by which death is caused is
done in extenuating circumstances and such act is covered by
a one of the five exceptions set out in the later part of Section
300.
29. It is not necessary in the present matter to analyse
Section 299 and Section 300 in detail. Suffice it to say that the
last clause of Section 299 and clause 'fourthly' of Section 300
C are based on the knowledge of the likely or probable
consequences of the act and do not connote any intention at
all.
30. Reference to few other provisions of IPC in this regard
D is also necessary. Section 279 makes rash driving or riding on
a public way so as to endanger human life or to be likely to
cause hurt or injury to any other person an offence and provides
for punishment which may extend to six months, or with fine
which may extend to Rs. 1000/-, or with both.
E
31. Causing death by negligence is an offence under
Section 304A. It reads :
"S.304A. - Causing death by negligence.-Whoever
causes the death of any person by doing any rash or
F negligent act not amounting to culpable homicide, shall be
punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both."
32. Section 336 IPC says that whoever does any act so
G rashly or negligently as to endanger human life or the i:-ersonal
safety of others, shall be puni.shed with imprisonment of either
description for a term which may extend to three months, or with
fine which may extend to Rs. 250/-, or with both.
33. Section 337 IPC reads as follows :
H
ALISTER ANTHONY PAREIRA v. STATE OF 169
MAHARASHTRA [R.M. LODHA, J.]
"S. 337. - Causing hurt by act endangering life or A
personal safety of others.-Whoever causes hurt to any
person by doing any act so rashly or negligently as to
endanger human life, or the personal safety of others, shall
be punished with imprisonment of either description for a
term which may extend to six months, or with fine which B
may extend to five hundred rupees, or with both."
34. Section 338 IPC is as under :
"S. 338. - Causing grievous hurt by act endangering
life or personal safety of others.-Whoever causes C
grievous hurt to any person by doing any act so rashly or
negligently as to endanger human life, or the personal
safety of others, shall be punished with imprisonment of
either description for a term which may extend to two years,
or with fine which may extend to one thousand rupees, or D
with both."
35. In Empress of India v. /du Beg 13, Straight J., explained
the meaning of criminal rash.ness and criminal negligence in
the following words: criminal rashness is hazarding a dangerous E
or wanton act with the knowledge that it is so, and that it may
cause injury but without intention to cause injury, or knowledge
that it will probably be caused. The criminality lies in running
the risk of doing such an act with recklessness or indifference
as to the consequences. Criminal negligence is the gross and
F
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. G
36. The above meaning of criminal rashness and criminal
negligence given by Straight J. has been adopted consistently
by this Court.
13. 1881 (3) All 776. H
170 SUPREME COURT REPORTS (2012] 1 S.C.R
A 37. Insofar as Section 304A IPC is concerned, it deals with
death caused by dqing 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
B 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 : (1) death
c of human being; (2) the accused caused the death and (3) the
death was caused by the doing of a rash or negligent act,
though it did not amount to culpable homicide of either
description.
38. Like Section 304A, Sections 279, 336, 337 and 338
D IPC are attracted for only the negligent or rash act.
39. The scheme of Sections 279, 304A, 336, 337 and 338
leaves no manner of doubt that these offences are punished
because of the inherent danger of the acts specified therein
E irrespective of knowledge or intention to produce the result and
irrespective of the result. These sections make punishable the
acts themselves which are likely to cause death or injury to
human life. The question is whether indictment of an accused
under Section 304 Part II and Section 338 IPC can co-exist in
F a case of single rasu or negligent act. We think it can. We do
not think that two charges are mutually destructive. If the act is
done with the knowledge of the dangerous consequences which
are likely to follow and if death is caused then not only that the
punishment is for the act but also for the resulting homicide and
G a case may fall within Section 299 or Section 300 depending
upon the mental state of the accused viz., as to whether the act
was done with one kind of knowledge or the other or the
intention. Knowledge is awareness on the part of the person
concerned of the consequences of his act of omission or
H commission indicating his state of mind. There may be
ALISTER ANTHONY PAREIRA v. STATE OF 171
MAHARASHTRA [R.M. LODHA, J.]
knowledge of likely consequences without any intention. A
Criminal culpability is determined by referring to what a person
with reasonable prudence would have known.
40. Rash or negligent driving on a public road with the
knowledge of the dangerous character and the likely effect of 8
the act and resulting in death may fall in the category of culpable
homicide not amounting to murder. A person, doing an act of
rash or negligent driving, if aware of a risk that a particular
consequence is likely to result and that result occurs, may be
held guilty not only of the act but also of the result. As a matter C
of law - in view of the provisions of the IPC - the cases which
fall within last clause of Section 299 but not within clause
'fourthly' of Section 300 may cover the cases of rash or
negligent act done with the knowledge of the likelihood of its
dangerous consequences and may entail punishment under
Section 304 Part II IPC. Section 304A IPC takes out of its 0
ambit the cases of death of any person by doing any rash or
negligent act amounting to culpable homicide of either
description.
41. A person, responsible for a reckless or rash or E
negligent act that causes death which he had knowledge as a
reasonable man that such act was dangerous enough to lead
to some untoward thing and the death was likely to be caused,
may be attributed with the knowledge of the consequence and
may be fastened with culpability of homicide not amounting to F
murder and punishable under Section 304 Part II IPC.
42. There is no incongruity, if simultaneous with the offence
under Section 304 Part II, a person who has done an act so
rashly or negligently endangering human life or the personal G
safety of the others and causes grievous hurt to any person is
tried for the offence under Section 338 IPC.
43. In view of the above, in our opinion there is no
impediment in law for an offender being charged for the offence
H
172 SUPREME COURT REPORTS (2012] 1 S.C.R.
A 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.
B
44. By charging the appellant for the offence under Section
304 Part II IPC and Section 338 IPC - which is legally
permissible - no prejudice has been caused to him. The
appellant was made fully aware of the charges against him and
C there is no failure of justice. We are, therefore, unable to accept
the submission of Mr. U.U. Lalit that by charging the appellant
for the offences under Section 304 Part 11 IPC and Section 338
IPC for a rash or negligent act res:.ilting in injuries to· eight
persons and at the same time committed with the knowledge
resulting in death of seven persons, the appellant has been
0 asked to face legally impermissible course.
45. In Prabhakaran Vs. State of Kerala 14 , this Court was
concerned with the appeal filed by a convict who was found
guilty of the offence punishable under Section 304 Part II IPC.
E In that case, the bus driven by the convict ran over a boy aged
10 years. The prosecution case was that bus was being driven
by the appellant therein at the enormous speed and although
the passengers had cautioned the driver to stop as they had
seen children crossing the road in a queue, the driver ran over
F the student on his head. It was alleged that the driver had real
intention to cause death of persons to whom harm may be
caused on the bus hitting them. He was charged with offence
punishable under Section 302 IPC. The Trial Court found that
no intention had been proved in the case but at the same time
G the accused acted with the knowledge that it was likely to cause
death, and, therefore, convicted the accused of culpable
homicide not amounting to murder punishable under Section
304 Part II IPC and sentenced him to undergo rigorous
imprisonment for five years and pay a fine of Rs.15,000/- with
H 14. 2007 (14) sec 269.
ALISTER ANTHONY PAREIRA v. STATE OF 173
MAHARASHTRA [R.M. LODHA, J.]
a default sentence of imprisonment for three years. The High A
Court dismissed the appeal and the matter reached this Court.
While observing that Section 304A speaks of causing death
by negligence and applies to rash and negligent acts and does
not apply to cases where there is an intention to cause death
or knowledge that the act will in all probability cause death and B
that Section 304A oniy applies to cases in which without any
such intention or knowledge death is caused by a rash and
negligent act, on the factual scenario of the case, it was held
that the appropriate conviction would be under Section 304A
IPC and not Section 304 Part 11 IPC. Prabhakaran14 does not c
say in absolute terms that in no case of an automobile accident
that results in death of a person due to rash and negligent act
of the driver, the conviction can be maintained for the offence
under Section 304 Part II IPC even if such act (rash or
negligent) was done with the knowledge that by such act of his, 0
death was likely to be caused. Prabhakaran 14 turned on its own
facts. Each case obviously has to be decided on its own facts.
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 . E
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.
re: question (ii) F
46. On behalf of the appellant it was strenuously urged that
the conviction of the appellant by the High Court for the offence
under Section 304 Part II IPC rests solely on the premise that
the appellant had knowledge that his reckless or negligent G
driving in a drunken condition could result in serious
consequences of causing fatal accident . It was submitted that
neither in the charge framed against the appellant, the crux of
the prosecution case that the appellant was in a drunken
condition was stated nor incriminating evidences and H
174 SUPREME COURT REPORTS [2012) 1 S.C.R.
A circumstances relating to rashness or negligence of the
accused in the drunken condition were put to him in the
statement under Section 313 of the Code.
47. It is a fact that no charge under Section 185 of the
B Motor Vehicles Act, 1988 and Section 66(1)(b) of the Bombay
Prohibition Act, 1949 was framed against the appellant. It is
also a fact that in the charge framed against the appellant under
Section 304 Part II IPC, the words 'drunken condition' are not
stated and the charge reads; 'on November 12, 2006 between
C 3.45 to 4.00 a.m. he was driving the car bearing Registration
No. MH-01-R-580 rashly and negligently with knowledge that
people are sleeping on footpath and likely to cause death of
those persons rammed over the footpath and thereby caused
death of 8 persons who were sleeping on footpath on Carter
Road, Sandra (West), Mumbai and thereby committed an
D offence punishable under Section 304 Part 11 IPC'. The question
is whether the omission of the words, 'in drunken condition'
after the words 'negligently' and before the words 'with
knowledge' has caused any prejudice to the appellant.
E 48. Section 464 of the Code reads as follows:
"S.464 - Effect of omission to frame, or absence of, or
error in, charge.-
(1) No finding sentence or order by a court of competent
F jurisdiction shall be deemed invalid merely on the ground
that no charge was framed or on the ground of any error,
omission or irregularity in the charge including any
misjoinder of charges, unless, in the opinion of the court
of appeal, confirmation or revision, a failure of justice has
G in fact been occasioned thereby.
(2) If the court of appeal, confirmation or revision is of
opinion that a failure of justice has in fact been
occasioned, it may-
H
ALISTER ANTHONY PAREIRA v. STATE OF 175.
MAHARASHTRA [R.M. LODHA, J.]
(a) In the case of an omission to frame a charge, order A
that a charge be framed and that the trial be recommenced
from the point immediately after the framing of the charge.
(b) In the case of an error, omission or irregularity in the
charge, direct a new trial to be had upon a charge framed 8
in whatever manner it thinks fit:
Provided that if the court is of opinion that the facts of the
case are such that no valid charge could be preferred
against the accused in respect of the facts proved, it shall
quash the conviction. C
49. The above provision has come up for consideration
before this Court on numerous occasions it is not necessary
to refer to all these decisions. Reference to a later decision of
this Court in the case of Anna Reddy Sambasiva Reddy7 0
delivered by one of us (R.M. Lodha, J.) shall suffice. In paras
55-56 of the Report in Anna Reddy Sambasiva Reddy7 it has
been stated as follows:
"55. In unmistakable terms, Section 464 specifies tha.t a
finding or sentence of a court shall not be set aside merely E
on the ground that a charge was not framed or that charge
was defective unless it has occasioned in prejudice.
Because of a mere defect in language or in the narration
or in form of the charge, the conviction would not be
rendered bad if accused has not been adversely affected F
thereby. If the ingredients of the section are obvious or
implicit, conviction in regard thereto can be sustained
irrespective of the fact that the said section has not been
mentioned.
G.
56. A fair trial to the accused is a sine quo non in our
criminal justice system but at the same time procedural law
contained in the Code of Criminal Procedure is designed
to further the ends of justice and not to frustrate them by
introduction of hyper-technicalities. Every case must H
176 SUPREME COURT REPORTS [2012] 1 S.C.R.
A depend on its olJ'm merits and no straightjacket formula can
be applied; the essential and important aspect to be kept
in mind is: has omission to frame a specific charge
resulted in prejudice to the accused."
50. In light of the above legal position, if the charge under
8
Section 304 Part II IPC framed against the appellant is seen,
it would be clear that the ingredients of Section 304 Part 11 IPC
are implicit in that charge. The omission of the words 'in drunken
condition' in the charge is not very material and, in any case,
C such omission has not at all resulted in prejudice to the
appellant as he was fully aware of the prosecution evidence
which consisted of drunken condition of the appellant at the time
of incident.
51. PW-1 is the doctor who examined the appellant
D immediately after the incident. In his deposition he stated that
he had taken the blood of the accused as he was found in
drunken condition. On behalf of the appellant PW-1 has been
cross examined but there is no cross-examination of PW-1 on
this aspect.
E
52. It is a fact that evidence of PW-1, as noticed above,
has not been put to the appellant in his statement under Section
313 of the Code but that pales into insignificance for want of
cross examination of PW-1 in regard to his deposition that the
F appellant was found in drunken condition and his blood sample
was taken.
53. CA Report (Ex. 49) too has not been specifically put
to the appellant at the time of his examination under Section
313 of the Code but it is pertinent to notice that PW-18
G (Investigating Officer) deposed that he had forwarded blood
sample of the accused and the bottle found in the car to the
chemical analyzer (CA) on 14.11.2006 and 15.11.2006
respectively. He further deposed that he collected the medical
certificate from Bhabha Hospital and he had received the CA
H report (Ex. 49). PW-18 has also not been cross examined by
ALISTER ANTHONY PAREIRA v. STATE OF 177
MAHARASHTRA ~R.M. LODHA, J.]
the defence in respect of the above. In the examination under A
Section 313 of the Code the following questions were put to
the appellant: Question 9: "What you want to say about the
further evidence of above two witnesses that police while
drawing spot panchanama seized one ladies chappal, remote,
lighter, cigarette perfume and so called liquor bottle from the B
vehicle i.e. MH-01-R-580?" The appellant answered 'I do not
know' Question 16: "What you want to say about the evidence
of Meenakashi Patil who has stated that initial investigation as
carried out by her and further investigation was entrusted to Pl
Phulsunder from 13.11.2006 and on due investigation police c
concluded themselves that your rash and negligence driving
caused the death of seven oersons and injury to the eight
persons by vehicle No. MH-01-R-580 by consuming alcohol so
police have charge sheated you?" He answered, 'It is false'.
54. The above questions in his examination under Section D
313 of the Code show that the appellant was fully aware of the
prosecution evidence relating to his rash and negligent driving
in the drunken condition. In the circumstances, by not putting
to the appellant expressly the CA report (Ex. 49) and the
evidence of PW 1, no prejudice can be said to have been E
caused to the appellant. The words of P.B. Gajendragadkar,
J. (as he then was) in Jai Dev Vs. State of Punjab 15 speaking
for three-Judge Bench with reference to Section 342 of the
Code (corresponding to Section 313 of the 1973 Code) may
be usefully quoted: F
"21 ...... the ultimate test in determining whether or not
the accused has been fairly examined under Section 342
would be to enquire whether, having regard to all the
questions put to him, he did get an opportunity to say what G
he wanted to say in respect of prosecution case against
him. If it appears that the examination of the accused
person was defective and thereby a prejudice has been
caused to him, that would no doubt be a serious infirmity..".
15. AIR 1963 SC 612. H
178 SUPREME COURT REPORTS [2012] 1 S.C.R.
A 55. In Shivaji Sahabrao Bobade and Anr: Vs. State of
Maharashlra 8 a 3-Judge Bench of this Court stated:
"16 ......... It is trite law, nevertheless fundamental, that the
prisoner's attention should be drawn to every inculpatory
material so as to enable him to explain it. This is the basic
B
fairness of a criminal trial and failures in this area may
gravely imperil the validity of the trial itself, if consequential
miscarriage of justice has flowed. However, where such
an omission has occurred it does not ipso facto vitiate tl)e
proceedings and prejudice occasioned by such defect
c must be established by the accused. In the event of
evidentiary material not being put to the accused, the court
must ordinari!y eschew such material from consideration.
It is also open to the appellate court to call upon the
counsel for the accused to show what explanation the
D accused has as regards the circumstances established
against him but not put to him and if the accused is unable
to offer the appellate court any plausible or reasonable
explanation of such circumstances, the court may assume
that no acceptable answer exists and that even if the
E accused had been questioned at the proper time in the trial
court he would not have been able to furnish any good
ground to get out of the circumstances on which tl)e trial
court had relied for its conviction·.
F 56. The above decisions have been referred in Asraf Ali
Vs. State of Assam 16 • The Court stated:
"21. Section 313 of the Code casts a dufy on the court to
put in an enquiry or trial questions to the accused for the
purpose of enabling him to explain any of the
G circumstances appearing in the evidence against him. It
follows as a necessary corollary therefrom that each
material circumstance appearing in the evidence against
the accused is required to be put to him specifically,
H 16. 2ooa (16) sec a2s.
ALISTER .ANTHONY PAREIRA v. STATE OF 179
MAHARASHTRA [R.M. LODHA, J.]
distinctly and separately and failure to do so amounts to a A
serious irregularity vitiating trial, if it is shown that the
accused was prejudiced.
22. The object of Section 313 of the Code is to establish
a direct dialogue between the court and the accused. If a
8
point in the evidence is important against the accused, and
the conviction is intended to be based upon it, it is right
and proper that the accused should be questioned about
the matter and be given an opportunity of explaining it.
Where no specific question has been put by the trial court
on an inculpatory material in the prosecution evidence, it C
would vitiate the trial. Of course, all these are subject to
rider whether they have caused miscarriage of justice or
prejudice.
24. In certain cases when there is perfunctory examination D
under Section 313 of the Code, the matter is remanded
to the trial court, with a direction to retry from the stage at
which the prosecution was closed". ·
57. From the above, the legal position appears to be this E
: 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 F
prosecution specifically, distinctly and separately may not by
itself render the trial against the accused void and bad in law;
firstly, 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 secondly, such
omission has not caused prejudice to him resulting in failure G
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. H
180 SUPREME COURT REPORTS [2012] 1 S.C.R.
A 58. Insofar as present case is concerned, in his statement
under Section 313, the appellant was informed about the
evidence relating to the incident that occurred in the early hours
(between 3.45 a.m. to 4.00 a.m.) of November 12, 2006 and
the fact that repairs were going on the road at that time. The
B appellant accepted this position. The appellant was also
informed about the evidence of the prosecution that vehicle No.
MH-01-R-580 was involved in the said incident. This was also
accepted by the appellant. His attention was brought to the
evidence of the eye-witnesses and injured witnesses, namely,
C PW-2, PW-3, PW-4, PW-5, PW-6, PW-7, PW-8, PW-9 and
PW-10 that at the relevant time they were sleeping on the
pavement of Carter Road, Sandra (West) outside the temporary
huts and there was an accident in which seven persons died
and eight persons got injured. The attention of the appellant was
also drawn to the evidence of the spot panchas (PW-11 and
D PW-16) that they had noticed that the car no. MH-01-R-580 at
the time of preparation of spot panchnama was in a heavily
damaged condition with dislodged right side wheel and some
blood was found on the earth and the huts were found
damaged. The prosecution evidence that the appellant was
E seen driving car no. MH-01-R-580 at high speed from Khar
Danda side and that rammed over the footpath and crushed
the labourers sleeping there was also brought to his notice. The
evidence of the mechanical expert (PW-15) that '1e checked
the vehicle and found no mechanical defect in the car was also
F brought to his notice. During investigation, the police concluded
that the rash and negligent driving of the appellant by
consuming alcohol caused the death of seven persons and
injury to the eight persons. The conclusion drawn on the
completion of investigation was also put to him. The appellant's
G attention was also invited to the materials such as photographs,
mechanical inspections of the car, seized articles. liquor bottle,
etc. Having regard to the above, it cannot be said that the
appellant was not made fully aware of the prosecution evidence
that he had driven the car rashly or negligently in a drunken
H
ALISTER ANTHONY PAREIRA v. STATE OF 181
MAHARASHTRA [R.M. LODHA, J.]
condition. He had full opportunity to say what he wanted to say A
with regard to the prosecution evidence.
59. The High Court in this regard held as under :
"29 ............The salutary provision of section 313 of the
Code have been fairly, or at least substantially, complied 8
with by the trial court, in the facts and circumstances of this
case. The real purpose of putting the accused at notice of
the incriminating circumstances and requiring him to offer
explanation, if he so desires, has been fully satisfied in the
present case. During the entire trial, copies of the C
documents were apparently supplied to the accused, even
prior to the framing of the charge. After such charge was
framed, all the witnesses were examined in the presence
of the accused and even limited questions regarding
incriminating material put by the court to the accused in D
his statement under Section 313 of the Code shows that
the entire prosecution case along with different exhibits
was put to the accused. He in fact did not deny the
suggestions that the witnesses had been examined in his
presence and he was aware about the contents of their E
statements. All this essentially would lead to only one
conclusion that the contention raised on behalf of the
accused in this regard deserves to be rejected. While
rejecting this contention we would also observe that the
admission or confession of the accused in his statement F
under section 313 of the Code, in so far as it provides
support or even links to, or aids the case of the prosecution
proved on record, can also be looked info by the court in
arriving at its final conclusion. It will be more so when
explanation in the form of answers given by the accused G
under Section 313 of the Code are apparently untrue and
also when no cross examination of the crucial prosecution
witnesses was conducted on this line."
We are in agreement with the above view of the High
Court. H
182 SUPREME COURT REPORTS [2012] 1 S.C.R.
A re: question (iii)
60. The crucial question now remains to be seen is
whether the prosecution evidence establishes beyond
reasonable doubt the commission of offence under Section 304
Part II IPC, Section 338 IPC and Section 337 IPC against the
8
appellant.
61. The appellant has not denied that in the earl~ hours of
November 12, 2006 between 3.45-4.00 a.m. on the South-
North Road at the East side of Carter Road, Sandra (West),
C Mumbai, the car bearing registration no. MH-01-R-580 met with
an accident and he was at the wheels at that time. PW-13 was
working as a watchman at the construction site. He witnessed
the accident. He deposed that he noticed that in the night of
November 11, 2006 and November 12, 2006 at about 4.00
D a.m., the vehicle bearing no. MH-01-R-580 came from Khar
Oanda side; the vehicle was in high speed and rammed over
the pavement and crushed the labourers. He deposed that 14-
15 persons were sleeping at that time on the pavement. He
stated that he used to take rounds during his duty hours. His
E evidence has not at all been shaken in the cross-examination.
62. PW-2 is the complainant. He lodged the complaint of
the incident at the Khar Police Station. In his deposition, he has
stated that he was contractor with New India Cc.1struction Co.
and nine labourers were working under him. At Carter Road,
F the work of road levelling was going on. He and other persons
were sleeping in a temporary hutment near railway colony. The
labourers were sleeping on the pavement. When he was easing
himself, at about 3.30 a.m. of November 12, 2006, he heard
the commotion and saw the smoke coming out of the vehicle
G that rammed over the footpath. Six persons died on the spot;
one expired in the hospital and eight persons sustained injuries.
He confirmed that the police recorded his complaint and the
complaint (Ex. 13) was read over to him by the police and was
correct. He has been cross-examined by the defence but there
H is no cross examination in respect of his statement that he had
ALISTER ANTHONY PAREIRA v. STATE OF 183
MAHARASHTRA [R.M. LODHA, J.]
got up to ease himself at about 3.30 a.m. on November 12, A
2006 and he heard the commotion and saw smoke coming out
of the vehicle. He has denied the suggestion of the defence that
road was blocked to some extent for construction purpose. He
denied that he had filed false complaint so as to avoid payment
of compensation to the workers. B
63. The first Investigating Officer (PW-17), who proceeded
along with the staff no sooner the message was received from
Khar 1 Mobile Van that accident had taken place at Carter
Road, near Railway Officers Quarters and reached the spot,
has deposed that on her arrival at the spot, she came to know C
.. ·that the labourers who were sleeping on footpath were run over
by the vehicle bearing No. MH-01-R-580. She shifted the
injured to the Bhabha Hospital; went to the Khar police station
for recording the complaint and then came back to the site of
.·accident and prepared Panchna'ma (Ex. 28) in the presence D
of Panchas PW-11 and PW-16. Exhibit 28 shows that the
accident spot is towards south of railway quarters gate and is
at a distance of about 110 feet. The length of footpath between
railway quarters gate and Varun Co-operative Housing Society
gate is about 160 feet. The accident spot is about 50 feet from E
the Varun Co-operative !;lousing Society gate. On the footpath,
between railway quarters gate and Varun Co-operative
Housing Society gate, the temporary sheds were set up. The
vehicle (Toyota Corolla) bearing No. MH-01-R-580 was lying in
the middle of the road between road divider and footpath on F
Carter Road at about 50 feet from the north side of Varun Co-
operative Housing Society gate and about 11 O feet from
railway quarters gate on the south side. The front wheel of the
car was broken and mudguard was pressed. The spot
panchnama shows 70 feet long brake marks in a curve from G
west side of the road divider towards footpath on eastern side.
It is further seen from the spot panchnama that a tempo, mud
digger and two trucks were parked on the road between
Railway Quarters gate and Varun Cooperative Housing Society
gate near the accident spot. The spot panchnama is duly H
184 SUPREME COURT REPORTS [2012] 1 S.C.R.
A proved by PW-11 and PW-16. There is nothing in the cross-
examination of these witnesses to doubt their presence or
veracity. The long brake marks in curve show that vehicle was
being driven by the appellant at the high speed; the appellant
had lost control of the speeding vehicle resulting in the accident
B and, consequently, seven deaths and injury to eight persons.
64. PW-15 is a motor vehicle inspector. He deposed that
he was summoned by the control room to check the vehicle MH
01-R-580 involved in the accident. At the time of inspection,
C right side wheel of the vehicle was found dislodged from the
body of the vehicle and the engine was dislodged from the
foundation; though the steering wheel was intact and brake lever
and gear lever were operative. There was no air in the front
wheel of the vehicle. He opined that accident might have
happened on account of dash. He has been briefly cross-
0 examined and the only thing he said in the cross-examination
was that he could not say whether the accident took place due
to dislodging of right side wheel and dislodging of engine from
foundation.
E 65. The above evidence has been considered by the High
Court quite extensively. The High Court, on consideration of the
entire prosecution evidence and having regard to the
deficiencies pointed out by the defence, reached the conclusion
that (1) the accused at the time of driving the car was under
F the influence of liquor; (2) he drove the car in drunken condition
at a very high speed; and (3) he failed to control the vehicle
and the vehicle could not be stopped before it ran over the
people sleeping on the pavement. The High Court observed
that the accused could not concentrate on driving as he was
G under the influence of liquor and the vehicle was being driven
with loud noise and a tape recorder being played in high
volume. The High Court held that the 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
H on the footpath. The High Court took judicial notice of the fact
ALISTER ANTHONY PAREIRA v. STATE OF 185
MAHARASHTRA [R.M. LODHA, J.]
that in Mumbai people do sleep on pavements. The accused A
was also aware of the fact that at the place of occurrence
people sleep as the accused was resident of that area. The
High Court took note of the fact that the accused had admitted
the accident and his explanation was that the accident occurred
due to mechanical failure and the defect that was developed B
in the vehicle but found his explanation improbable and
unacceptable. The High Court also observed that the factum
of high and reckless speed was evident from the brake marks
at the site. The speeding car could not be stopped by him
instantaneously. In the backdrop of the above findings, the High c
Court held that the accused could be attributed to have a
specific knowledge of the event that happened. The 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
0
which may even result into death of persons.
66. We have also carefully considered the evidence let in
by prosecution - the substanci: of which has been referred to
above - and we find no justifiable ground to take a view
different from that of the High Court. We agree with the E
conclusions of the High Court and have no hesitation in holding
that the evidence and materials on record prove beyond
reasonable doubt that the appellant can be attributed with
knowledge that his act of driving the vehicle at a high speed in
the rash or negligent manner was dangerous enough and he F
knew that one result would very likely be that people who were
asleep on the pavement may be hit, should the vehicle go out
of control. There is a presumption that a man knows the natural
and likely consequences of his acts. Moreover, an act does not
become involuntary act simply because its consequences were G
unforeseen. The cases of negligence or of rashness or
dangerous driving do not eliminate the act being voluntary. In
the present case, the essential ingredients of Section 304 Part
II IPC have been successfully established by the prosecution
against the appellant. The infirmities pointed out by Mr. U.U. H
186 SUPREME COURT REPORTS [2012] 1 S.C.R.
A Lalit, learned senior counsel for the appellant, which have been
noticed above are not substantial and in no way affect the
legality of the trial and the conviction of the appellant under
Section 304 Part II IPC. We uphold the view of the High Court
being consistent with the evidence on record and law.
B
67. The trial court convicted the accused of the offence
under Section 337 IPC but acquitted him of the charge under
Section 338 IPC. The High Court noticed that two injured
persons, namely, PW-6 and PW-8 had injuries over the right
C front temporal parietal region of the size of 5x3 ems. with scar
deep with bleeding (Ex. 37 and 33 respectively). The High Court
held that these were not simple injuriec and were covered by
the grievous hurt under Section 320 IPC. We agree. Charge
under Section 338 IPC against the appellant is clearly
established.
D
68. Insofar as charge under Section 337 IPC is concerned,
it is amply established from the prosecution evidence that PW-
5, PW-7, PW-9 and PW-10 received various injuries; they
suffered simple hurt. The trial court as well as the High Court
E was justified in convicting the appellant for the offence
punishable under Section 337 IPC as well.
re: question (ivl
69. The question now is whether the maximum sentence
F of three years awarded to the appellant by the High Court for
the offence under Section 304 Part II IPC requires any
modification? It was argued on behalf of the appellant that
having regard to the facts : (i) the appellant has already
undergone sentence of two months and has paid Rs. 8,50,000/
G - by way of fine and compensation; (ii) the appellant is further
willing to pay reasonable amount as compensation/fine as may
be awarded by this Court; (iii) the appellant was about 20 years
of age at the time of incident; and (iv) the appellant lost his father
during the pendency of the appeal and presently being the only
H member to support his family which comprises of mother and
ALISTER ANTHONY PAREIRA v. STATE OF 187
MAHARASHTRA [R.M. LODHA, J.)
unmarried sister, he may be released on probation of good A
conduct and behaviour or the sentence awarded to him be
reduced to the period already undergone.
70. Sentencing is an important task in the matters of crime.
One of the prime objectives of the criminal law is imposition of 8
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 C
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.
D
71. 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 door.
The court has to take into consideration all aspects including E
social interest and consciousness of the society for award of
appropriate sentence.
72. This Court has laid down certain principles of penology
from time to time. There is long line of cases on this aspect.
However, reference to few of them shall suffice in the present
F
case.
73. In the case of Krishnappa9, though this Court was
concerned with the crime under Section 376 IPC but with
reference to sentencing by courts, the Court made these G
weighty observations :
"18 ......... Protection of society and deterring the criminal
is the avowed object of law and that is required to be
achieved by imposing an appropriate sentence. The H
188 SUPREME COURT REPORTS (2012] 1 S.C.R.
A sentencing courts are expected to consider all relevant
facts and circumstances bearing on the question of
sentence and proceed to impose a sentence
commensurate with the gravity of the offence. Courts must
hear the loud cry for justice by the society in cases of the
B heinous crime of rape on innocent helpless girls of tender
years, as in this case, and respond by imposition of proper
sentence. Public abhorrence of the crime needs reflection
through imposition of appropriate sentence by the court.
There are no extenuating or mitigating circumstances
c available on the record which may justify imposition of any
sentence less than the prescribed minimum on the
respondent. To show mercy in the case of such a heinous
crime would be a travesty of justice and the plea for
leniency is wholly misplaced ......... ."
D 74. In the case of Dalbir Singh10, this Court was concerned
with a case where the accused was held guilty of the offence
under Section 304A IPC. The Court made the following
observations (at Pages 84-85 of the Report):
E "1. When automobiles have become death traps any
leniency shown to drivers who are found guilty of rash
driving would be at the risk of further escalation of road
accidents. All those who are manning the steering of
automobiles, particularly professional drivers, must be kept
F under constant reminders of their duty to adopt utmost care
and also of the consequences befalling them in cases of
dereliction. One of the most effective ways of keeping such
drivers under mental vigil is to maintain a deterrent element
in the sentencing sphere. Any latitude shown to them in
that sphere would tempt them to make driving frivolous and
G
a frolic."
Then while dealing with Section 4 of the Probation of Offenders
Act, 1958, it was observed that Section 4 could be resorted to
when the court considers the circumstances of the case,
H particularly the nature of the offence, and the court forms its
ALISTER ANTHONY PAREIRA v. STATE OF 189
MAHARASHTRA [R.M. LODHA, J.]
opinion that it is suitable and appropriate for accomplishing a A
specified object that the offender can be released on the
probation of good conduct. For application of Section 4 of the
Probation of Offenders Act. 1958 to convict under Section
304A IPC, the court stated in paragraph 11 of the Report (at
Pg. 86) thus:- B
"Courts must bear in mind that when any plea is made
based on Section 4 of the PO Act for application to a
convicted person under Section 304-A IPC, that road
accidents have proliferated to an alarming extent and the
toll is galloping day by day in India, and that no solution is C
in sight nor suggested by any quarter to bring them
down .......... "
Further, dealing with this aspect, in paragraph 13 (at page 87)
of the Report, this Court stated : D
"Bearing in mind the galloping t;end in road accidents in
India and the devastating consequences visiting the
victims and their families, criminal courts cannot treat the
nature of the offence under Section 304-A IPC as E
attracting the benevolent provisions of Section 4 of the PO
Act. While considering the quantum of sentence to be
imposed for the offence of causing death by rash or
negligent driving of automobiles, one of the prime
considerations should be deterrence. A professional
driver pedals the accelerator of the automobile almost F
throughout his working hours. He must constantly inform
himself that he cannot afford to have a single moment of
laxity or inattentiveness when his leg is on the pedal of a
vehicle in locomotion. He cannot and should not take a
chance thinking that a rash driving need not necessarily · G
cause any accident; or even if any accident occurs it need
not necessarily result in the death of any human being; or
even if such death ensues he might not be convicted of
the offence; and lastly, that even if he is convicted he would
be dealt with leniently by the court. He must always keep H
190 SUPREME COURT REPORTS [2012] 1 S.CR.
A in his mind the fear psyche that if he is convicted of the
offence for causing death of a human being due to his
callous driving of the vehicle he cannot escape from a jail
sentence. This is the role which the courts can play,
particularly at the level of trial courts, for lessening the high
B rate of motor accidents due to callous driving of
automobiles.•
75. In State of M.P. v. Saleem alias Chamaru & Anr. 17,
while considering the case under Section 307 IPC this Court
C stated jn paragraphs 6-10 (pages 558-559) of the Report as
follows:
"6. 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
D 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 .. : ....... .
E 7. 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
F a dispassionate manner by the court. Such act of balancing
is indeed a difficult task. It has been very aptly indicated
in Dennis Councle McGautha v. State of California (402
US 183) that no formula of a foolproof nature is possible
that would provide a reasonable criterion in determining
G 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
H 17. 2005 (5) sec 554.
ALISTER ANTHONY PAREIRA v. STATE OF 191
MAHARASHTRA [R.M. LODHA, J.]
crime, the discretionary judgment in the facts of each case, A
is the only way in which such judgment may be equitably
distinguished.
8. The object should be to protect society and to deter the
criminal in achieving the avowed object of law by imposing
8
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.
9. Imposition of sentence without considering its effect on C
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 D
which have greatimpact on social order and public interest,
cannot be lost sight of and per se require exemplary
treatment. Any liberal attitude by imposing meagre
sentences or taking too sympathetic view merely on
account of lapse of time in respect of such offences wiff' E
be result wise counterproductive in the long run and
against societal interest which needs to be cared for and
strengthened by a string of deterrence inbuilt in the
sentencing system.
10. The court will be failing in its duty if appropriate F
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 G
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"."
H
192 SUPREME COURT REPORTS [2012] 1 S.C.R.
A 76. In the case of Shai/esh Jasvantbhai 11, the Court
referred to earlier decisions in Dhananjoy Chatterjee alias
Dhana v. State of WB. 18 , Ravji alias Ram Chandra v. State
of Rajasthan 19 , State of M.P. v. Ghanshyam Singh 20 , Surjit
Singh v. Nahara Ram & Anr.21, State of M.P. v. Munna
B Choubey22 • In Ravji19, this Court stated that the court must not
only keep in view the rights of the criminal but also the rights of
the victim of the crime and the society at large while considering
the imposition of appropriate punishment. The punishment to
be awarded for a crime must not be irrelevant but it should
c 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".
77. In Manish Ja/an 12, this Court considered Section 357
D of the Code in a case where the accused was found guilty of
the offences punishable under Sections 279 and 304A IPC.
After noticing Section 357, the Court considered earlier
decision of this Court in Hari Singh v. Sukhbir Singh & Ors. 23
wherein it was observed, 'it may be noted that this power of
E courts to award compensation is not ancillary to other sentences
but it is in addition thereto. This power was intended to do
something to reassure the victim that he or she is not forgotten
in the criminal justice system. It is a measure of responding
appropriately to crime as well of reconciling the victim with the
F offender. It is, to some extent, a constructive approach to
crimes. It is indeed a step forward in our criminal justice
system". Then the court noticed another decision of this Court
in Sarwan Singh & Ors. v. State of Punjab 24 in which it was
1s. (1994) 2 sec 220.
G 19. (1996) 2 sec 175.
20. (2003) 8 sec 13.
21. (2004) a sec 513.
22. (2005) 2 sec 110.
23. (1998) 4 sec 551.
H 24. (1978) 4 sec 111.
'
193
ALISTER ANTHONY PAREIRA v. STATE OF
MAHARASHTRA [R.M. LODHA, J.]
observed that in awarding compensation, it was necessary for A
the court to decide if the case was a fit one in which
compensation deserved to be granted. Then the court
considered another decision of this Court in Dilip S. Dahanukar
v. Kotak Mahindra Co. Ltd. & Anr. 25 wherein the court held at
Page 545 of the Report as under: B
"38. The purpose of imposition of fine and/or grant of
compensation to a great extent must be considered having
the relevant factors therefor in mind. It may be
compensating the person in one way or the other. The
amount of compensation sought to be imposed, thus, must C
be reasonable and not arbitrary. Before issuing a direction
to pay compensation, the capacity of the accused to pay
the same must be judged. A fortiori, an enquiry in this
behalf even in a summary way, may be necessary. Some
reasons, which may not be very elaborate, may also have D
to be assigned; the purpose being that whereas the power
to impose fine is limited and direction to pay
compensation can be made for one or the other factors
enumerated out of the same; but sub-section (3) of Section
357 does not impose any such limitation and thus, power E
thereunder should be exercised only in appropriate cases.
Such a jurisdiction cannot be exercised at the whims and
caprice of a Judge."
Having regard to the above legal position and the fact that the
mother of the victim had no grievance against the appellant F
therein and she prayed for some compensation, this Court held
that a lenient view could be taken in the matter and the sentence
of imprisonment could be reduced and, accordingly, reduced
the sentence to the period already undergone and directed the
appellant to pay compensation of Rs. One lakh to the mother G
of the victim.
78. World Health Organisation in the Global Status Report
on Road Safety has pointed out that speeding and drunk driving
25. (2007) a sec 528. H
194 SUPREME COURT REPORTS (2012] 1 S.C.R.
A are the major contributing factors in road accidents. According
to National Crime Records Bureau (NCRB), the total number
of deaths due to road accidents in India every year is now over
1,35,000. NCRB Report also states drunken driving as a major
factor for road accidents. Our country has a dubious distinction
B of registering maximum number of deaths in road accidents. It
is high time that law makers revisit the sentencing policy
reflected in Section 304A IPC.
79. The facts and circumstances of the case which have
been proved by the prosecution in bringing home the guilt of
C 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 the accused. For an offence like this which
has been proved against the appellant, sentence of three years
o awarded by the High Court is too meagre and not adequate
but since no appeal has been preferred by the State, we refrain
from considering the matter for enhancement. By letting the
appellant away on the sentence already undergone i.e. Jwo
months in a case like this, in our view, would be travesty of
E justice and highly unjust, unfair, improper and disproportionate
to the gravity of crime. It is true that the appellant has 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
F considerate and lenient in awarding to the appellant sentence
of three years for an offence under Section 304 Part II IPC
where seven persons were killed.
80. We are satisfied that the facts and circumstances of
the case do not justify benefit of probation to the appellant for
G good conduct or for any reduction of sentence.
81. The appeals are, accordingly, dismissed. Appellant's
bail bonds are cancelled. He shall forthwith surrender for
undergoing the remaining sentence as awarded by the High
Court in the Judgment and Order dated September 6, 2007.
H R.P. Appeal dismissed.
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