Holding

The conviction under Sections 279, 337, 338, 304A IPC and Section 185 Motor Vehicles Act is upheld as the evidence establishes rash and negligent driving.

Summary

The appellant, Kuldeep Singh, was the driver of a truck carrying a marriage party of about fifty people when the vehicle allegedly lost control, rolled over and caused the death of four persons and injuries to many others. He was acquitted by the trial court, but the Himachal Pradesh High Court convicted him under Sections 279, 337, 338, 304A of the Indian Penal Code and Section 185 of the Motor Vehicles Act, finding that he had driven at a very high speed and acted rashly and negligently. On appeal, the Supreme Court examined whether the conduct satisfied the elements of rash/negligent driving required for Section 304A and whether the conviction was sustainable. Relying on the testimony of three eye‑witnesses who described the truck being driven “as if it were an aeroplane,” the Court held that the evidence established the requisite rashness and negligence, and that Section 304A was applicable as the act did not amount to culpable homicide. Consequently, the Court upheld the conviction and dismissed the appeal.

Issues considered

Whether the driver’s conduct amounts to rash or negligent driving sufficient to attract Section 304A IPC.
Whether Section 304A is applicable when death results from such conduct as opposed to culpable homicide under Sections 299/300 IPC.
Whether the evidence establishes the required mens rea of negligence or recklessness for conviction under Sections 279, 337, 338, 304A and 185 MV Act.

Legislation cited

Indian Penal Code, 1860s. 279, s. 304A, s. 337, s. 338
Motor Vehicles Act, 1988s. 185

Subjects

Section 304Arash drivingnegligent drivingcriminal negligencemotor vehicle accidentculpable homicideIndian Penal CodeMotor Vehicles Actappealconviction

Judgment

[2008] 10 S.C.R. 1063

S.K.S. Appeal allowed. A
KULDEEP SINGH
v.
STATE OF HIMACHAL PRADESH
(Criminal Appeal No.1106 of 2008)
JULY 16, 2008 B

[DR. ARIJIT PASAYAT AND HARJIT SINGH BEDI, JJ.]

Penal Code, 1860:
ss. 304A, 279, 337 and 338 - Truck carrying marriage c
party met with accident - A/legation that the driver was drunk1
and lost control and the truck rolled down in the fields - Gaus-
ing death of four persons, simple injuries to 18 persons and
grievous injuries to 8 persons - Trial Court acquitted the ac-
""' ;-- cused-driver holding that there was no rash or negligent driv- D
ing as claimed by the prosecution - However, High Court con-
victed the accused on basis of evidence of three eye witnesses
after holding that rash and negligent driving was established,
- On appeal, held: Evidence of the three witnesses clearly
shows that more than 50 persons were there in the truck and E
the accused was driving the same at a very high speed - Con-
viction justified.
s. 304A - Applicability of - Discussed.
Woros and Phrases- 'Negligence' and 'reckless' - Meaning ot F
According to the prosecution case, on the fateful day,
Appellant was driving a truck carrying a marriage party of'
around 50 persons. It is alleged that he was drunk and,
lost control and as a result the truck went off the road
and rolled down in the fields leading to death of four per-, G
sons, simple injuries to 18 persc;>ns and grievous injuries
• ~ to 8 persons. PW-1-constable was an eye witness while '
PW-3 was an occupant of the truck and father of the bride-
groom whose marriage party was travelling. The Trial'
1063 H
1064 SUPREME COURT REPORTS [2008] 10 S.C.R.

A Court held that there was no rash or negligent driving as
claimed by the prosecution and acquitted the accused-
Appellant. On appeal, the High Court, relying upon the
evidence of PWs 1, 3 and 4 held that the rash and negli-
gent driving was established and convicted and sen-
B tenced the Appellant u/ss.279, 337, 338 and 304A IPC. ).._, '-'
Hence the present appeal.
Dismissing the appeal, the Court
HELD: 1.1. 5.304-A IPC applies to cases where there
c is no intention to cause death and no knowledge that the
act done, in all probabilities, will cause death. This provi-
sion is directed at offences outside the range of ss. 299
and 300 IPC. 5.304-A applies only to such acts which are
rash and negligent and are directly the cause of death of
another person. Negligence and rashness are essential
0
elements under s.304-A. [Para 7] [1068-8,C]
1.2. 5.304-A carves out a specific offence where death
is caused by doing a rash or negligent act and that act
does not amount to culpable homicide under s.299 or
E murder under s.300. If a person willfully drives a motor
vehicle into the midst of a crowd and thereby causes
death to some person, it will not be a case of mere rash
and negligent driving and the act will amount to culpable
homicide. Doing an act with the intent to kill a person or
F knowledge that doing an act was likely to cause a person's
·death is culpable homicide. When the intent or knowledge
is the direct motivating force of the act, s.304-A has to
make room for the graver and more serious charge of
culpable homicide. The provision of this section is not
G limited to rash or negligent driving. Any rash or negligent
act whereby death of any person is caused becomes pun-
ishable. Two elements either of which or both of which
may be proved to establish the guilt of an accused are
rashness/negligence, a person may cause death by a rash
or negligent act which may have nothing to do with driv-
H
KULDEEP SINGH v. STATE OF HIMACHAL 1065
f \ PRADESH

ing at all. Negligence and rashness to be punishable in A
terms of s.304-A must be attributable to a state of mind
wherein the criminality arises because of no error in judg-
ment but of a deliberation in the mind risking the crime as
well as the life of the person who may lose his life as a
-· -f result of the crime. S.304-A discloses that criminality may B
be that apart from any mens rea, there may be no motive
or intention still a person may venture or practice such '
rashness or negligence which may cause the death of
other. The death so caused is not the determining factor.
[Para 8] [1068-E,F,G,H 1069-A] c
1.3. In the present case, the evidence of PWs 1, 3 & 4
clearly show that the vehicle was being driven at a very
high speed. Evidence on record show that more than 50
persons were there in the truck and the appellant was
.... _,. driving the same at a very high speed. One of the wit- D
nesses has stated that the truck was being driven as if it
was an aeroplane. Therefore, the conviction as recorded
cannot be faulted. [Para 17] [1073-E,F]
Naresh Gir/ v. State of M.P (2008) 1 SCC 791; Syed
Akbar v. State of Karnataka, (1980) 1 SCC 30 and Dalbir Singh E
V. State of Haryana, 2000 (5) sec 82 - referred to.

Director of Public Prosecutions v. Camp/in (1978) 2 All
ER 168; Andrews v. Director of Public Prosecutions (1937)
(2) All ER 552; R. v. Briggs (1977) 1 All ER 475 and R. v. F
Caldwell (1981) 1 All ER 961; R v. Lawrence (1981) 1 All ER
97 4- referred to.
Halsbury's Laws of England (4th Edition) Volume 34;
Kenny's Outlines of Criminal Law, 19th Edition (1966), p.38;
Restatement of the law of Torts published by the American G
Law Institute (1934) Vol. !,Section 28 and Law of Torts by
~ Fleming, p.124 (Australian Publication 1957) - referred to.
CRIMINALAPPELLATE JURISDICTION : Criminal Appeal
No. 1106of2008
H
1066 SUPREME COURT REPORTS [2008] 10 S.C.R.
f ~

A From the final Judgment dated 17.9.2007 and Order of
sentence dated 18.9.2007 of the High Court of Himachal
Pradesh at Shimla in Crl. Appeal No. 128/2000
Ar~n K. Sinha and Vikram Kapoor for the Appellant.

Naresh K. Sharma for the Respondent. )-., ~
B
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Appellant faced trial for offences punishable under Sec-
c tions 279, 337, 338 and 304(A) of the Indian Penal Code, 1860 •.
(in short the 'IPC') and Section 185 of the Motor Vehicles Act.
1988 (in short the 'MV Act'). The appellant was acquitted by
learned Judicial Magistrate, Hamirpur. State of Himachal
Pradesh preferred an appeal before the Himachal Pradesh
D High Court which by the impugned judgmentset aside the judg-
ment of acquittal passed by the trial court and directed convic-
.,, -
tion of the respondent for offences punishable under Sections
279, 337, 338 and 304(A)·IPC and imposed various sentences,
which were directed to run concurrently. The maximum sentence
E imposed was one year.
3. Background facts in a nutshell are as follows:
On 15.4.1993 the accused-appellant was the driver of the
truck HIU-3837. The said truck was carrying a marriage party.
F When it reached near village Kacherha, on the public way, at .~
about 11 AM, he lost its control, consequently it went off the road,
rolled down in the field, leaving Pratap Singh@Pinku, Kuldeep
Singh @ Jogi, dead on the spot and Kamal Kishore and
\
Manohar Lal injured persons died in the hospital at Bhoranj later,
due to accidental injuries, whereas, out of about fifty other mem-
G
bers of the marriage-party, who were the occupants of the said
truck, Harish Kumar, Amin Chand, Rajesh Kumar, Rattan Chand, >
~
Desh Raj, Tej Ram, Rakesh Kumar, Hem Chand, Surjit Singh,
Mahant Ram, Prakash Chand, Pawan Kumar, Shambhu Rani,
Paras Ram, Ranbir Singh, Prem Chand, Prakash Chand and
H
KULDEEP SINGH v. STATE OF HIMACHAL 1067
f k PRADESH [DR. ARIJIT PASAYAT, J.]

Sanjay, sustained simple injuries, whereas, Anil Kumar, A
Joginder, Suresh Kumar, another Joginder Singh, lshwar Dass,
Nand Lal, Lekh Ram and Lekh Raj sustained grievous injuries.
The appellant was allegedly drunk. He and the cleaner of the
truck had absconded. The case was registered .
... ~
B
The police took the photographs of the spot, prepared the
site plan, truck was mechanically examined, the postmortem
reports and the MLCs of the injured were taken into posses-
sion and after recording the statements of the witnesses, the
challan was presented in the Court, for the trial against the re-
spondent. c
The charges were framed and put to the appellant, to which
he pleaded not guilty and claimed trial.
Nathu Ram (PW 1) is a constable, who was on his duty to
.r execute the processes. He is an eye witness of the said acci- D
dent. Rup Lal (PW3) was an occupant and the father of bride-
groom Kuldeep Singh (deceased), whose marriage-party was
traveling in the said truck. PW2 Dile Ram (injured), PW4 Rattan
Lal, PW5 Rattan Chand (injured) son of Salig Ram, PW6 Surjit
Singh, PW 13 Rakesh Kumar, PW8 Lekh Ram, PW 10 Rattan E
Chand (injured), PW16 Rakesh Kumar (injured) and PW 18
Sagar Singh were occup~nts of the truck, but they broadly did
not support the case of the prosecution, as alleged. However,
he admitted the accident.
~ 4. The trial court came t9 the conclusion that there was no F
rash or negligent driving as claimed by the prosecution. In ap-
peal, the High Court relied on the evidence of the witnesses ,

.. A.
particularly PWs. 1, 3 &4 and recorded that rash and negligent
driving is clearly established. Accordingly State's appeal was
allowed and conviction was recorded and sentences imposed . G
5. Learned.counsel for the appellant submitted that the
accident took place not because of negligence but because
the appellant tried to save the lives of children who were playing
on the road and therefore, the truck climbed on the stones by
H
1068 SUPREME COURT REPORTS [2008] 10 S.C.R.
1·
'
A the side of the road and its rod was broken. It was also submit-
ted that the appellant has already suffered custody of more than
nine months and, therefore, the sentence should be restricted
to the period already undergone.
6. Learned counsel for the State on the other hand submit- ...,._ ......
B ted that rash and negligent driving has resulted in the death of
four persons and several others were seriously injured.

7. Section 304-A IPC applies to cases where there is no
intention to cause death and no knowledge that the act done, in
c all probabilities, will cause death. This provision is directed at
offences outside the range of Sections 299 and 300 IPC. Sec-
tion 304-A applies only to such acts which are rash and negli-
gent and are directly the cause of death of another person.
Negligence and rashness are essential elements under Sec-
tion 304-A.
D ---(..
8. Section 304-A carves out a specific offence where death
is caused by doing a rash or negligent act and that act does not
amount to culpable homicide under Section 299 or murder un-
der Section 300. If a person willfully drives a motor vehicle into
E the midst of a crowd and thereby causes death to some per-
son, it will not be a case of mere rash and negligent driving and
the act will amount to culpable homicide. Doing an act with the
intentto kill a person or knowledge that doing an act was likely
to cause a person's death is culpable homicide. When the in-
F tent or knowledge is the direct motivating force of the act, Sec- )-.
tion 304-A has to make room for the graver and more serious
charge of culpable homicide. The provision of this section is
not limited to rash or negligent driving. Any rash or negligent act
whereby death of any person is caused becomes punishable.
Two elements either of which or both of which may be proved to
G .....
establish the guilt of an accused are rashness/negligence, a
person may cause death by a rash or negligent act which may
!--
have nothing to do with driving at all. Negligence and rashness
to be punishable in terms of Section 304-A must be attribut.2ble
to a state of mind wherein the criminality arises because ·Jf nu
H ~~

• ~-
KULDEEP SINGH v. STATE OF HIMACHAL 1069
PRADESH [DR. ARIJIT PASAYAT, J.]
' + error in judgment but of a deliberation in the mind risking the A
crime as well as the life of the person who may lose his life as a
result of the crime. Section 304-A discloses that criminality may
be that apart from any mens rea, there may be no motive or
intention still a person may venture or practice such rashness
.... -{ or negligence which may cause the death of other. The death B
so caused is not the determining factor.
9. What constitutes negligence has been analysed in
Halsbury's Laws of England (41h Edition) Volume 34 paragraph
1 (para 3) as follows:
c
"Negligence is a specific tort and in any given
circumstances is the failure to exercise that care which
the circumstances demand. What amounts to negligence
depends on the facts of each particular case. It may consist
in omitting to do something which ought to be done or in
D
y doing something which ought to be done either in a different
manner or not at all. Where there is no duty to exercise
care, negligence in the popular sense has no legal
consequence, where there is a duty to exercise care,
reasonable care must be taken to avoid acts or omissions
which can be reasonably foreseen to be likely to cause E
physical injury to persons or property. The degree of care
required in the particular case depends on the surrounding
circumstances, and may vary according to the amount of
the risk to be encountered and to the magnitude of the
prospective injury. The duty of care is owed only to those F
persons who are in the area of foreseeable danger, the
fact that the act of the defendant violated his duty of care
to a third person does not enable the plaintiff who is also
injured by the same act to claim unless he is also within
the area of foreseeable danger. The same act or omission G
may accordingly in some circumstances involve liability
A as being negligent although in other circumstances it will
not do so. The material considerations are the absence of
care which is on the part of the defendant owed to the
plaintiff in the circumstances of the case and damage H
1070 SUPREME COURT REPORTS [2008] 10 S.C.R.
+ \

A suffered by the plaintiff, together with a demonstrable
relation of cause and effect between the two".
10. In this context the following passage from Kenny's
Outlines of Criminal Law, 19th Edition (1966) at page 38 may

B
be usefully noted: )- ...
"Yet a man may bring .about an event without having
adverted to it at all, he may not have foreseen that his
actions would have this consequence and it will come to
him as a surprise. The event may be harmless or harmful,
c if harmful, the question rises whether there is legal liability
for it. In tort, (at common law) this is decided by considering
whether or not a reasonable man in the same
circumstances would have realised the prospect of harm
and would have stopped or changed his course so as to
avoid it. If a reasonable man would not, then there is no J
D ~
liability and the harm must lie where it falls. But if the
reasonable man would have avoided the harm then there
is liability and the perpetrator of the harm is said to be
guilty of negligence. The word 'negligence' denotes, and
should be used only to denote, such blameworthy
E inadvertence, and the man who through his negligence
has brought harm upon another is under a legal obligation
to make reparation for it to the victim of the injury who may
sue him in tort for damages. But it should now be

F
recognized that at common law there is no criminal liability
for harm thus caused by inadvertence. This has been laid
,,
down authoritatively.for manslaughter again and again.
There are only two states of mind which constitute mens
rea and they are intention and recklessness. The difference
between recklessness and negligence is the difference
G between advertence and inadvertence they are opposed
and it is a logical fallacy to suggest that recklessness is
a degree of negligence The common habit of lawyers to A
qualify the word "negligence" with some moral epithet such
as wicked' 'gross' or· culpable' has been most unfortunate
H since it has inevitably led to great confusion of thought
KULDEEP SINGH v. STATE OF HIMACHAL 1071
i + PRADESH [DR. ARIJIT PASAYAT, J.]

and of principle. It is equally misleading to speak of criminal A
negligence since this is merely to use an expression in
order to explain itself."
11. "Negligence", says the Restatement of the law of Torts
> ~
published by the American Law Institute (1934) Vol. I. Section
28 "is conduct which falls below the standard established for B
the protection of others against unreasonable risk of harm". It is
stated in Law of Torts by Fleming at page 124 (Australian Pub-
lication 1957) that this standard of conduct is ordinarily mea-
sured by what the reasonable man of ordinary prudence would
do under the circumstances. In Director of Public Prosecutions c
v. Camp/in (1978) 2 All ER 168 it was observed by Lord Diplock
that "the reasonable man" was comparatively late arrival in the
laws of provocation. As the law of negligence emerged in the
~ first half of the 19th century it became the anthropomorphic
_.r-
embodiment of the standard of care required by law. In order to D
objectify the law's abstractions like "care" "reasonableness" or
"foreseeability" the man of ordinary prudence was invented as
a model of the standard of conduct to which all men are re-
quired to conform.
12. In Syed Akbar v. State of Kamataka, (1980) 1 SCC E
30, it was held that "where negligence is an essential ingredi-
ent of the offence, the negligence to be established by the pros-
ecution must be culpable or gross and not the negligence merely
-j, based upon an error of judgment. As pointed out by Lord Atkin
in Andrews v. Director of Public Prosecutions ( 1937) (2) All ER F
552) simple lack of care such as will constitute civil· 1iability, is
not enough; for liability under the criminal law a very high de-
gree of negligence is required to be proved. Probably, of all the
epithets that can be applied 'reckless' most nearly covers the
case." G
A 13. According to the dictionary meaning 'reckless' means
'careless', 'regardless' or heedless of the possible harmful con-
sequences of one's acts'. It presupposes that if thought was
given to the matter by the doer before the act was done, it would
H
1072 SUPREME COURT REPORTS [2008] 10 S.C.R.
·+
A have been apparent to him that there was a real risk of its hav-
ing the relevant harmful consequences; but, granted this, reek-
lessness covers a whole range of states of mind from failing to
give any thought at all to whether or not there is any risk of those
harmful consequences, to recognizing the existence of the risk )-
B and nevertheless deciding to ignore it. In R. v. Briggs (1977) 1
All ER 475 it was observed that a man is reckless in the sense
required when he carries out a deliberate act knowing that there
is some risk of damage resulting from the act but nevertheless
.continues in the performance of that act.
c 14. In R. v. Caldwell (1981) 1 All ER 961, it was observed that:-
"Nevertheless, to decide whether someone has been
reckless', whether harmful consequences of a particular
kind will result from his act, as distinguished from his
actually intending such harmful consequences to follow, ~
D
does call for some consideration of how the mind of the
ordinc. y prudent individual would have reacted to a similar
situation. If there were nothing in the circumstances that
ought to have drawn the attention of an ordinary prudent
individual to the possibility of that kind of harmful
E consequence, the accused would not be described as
'reckless' in the natural meaning of that word for failing to
address his mind to the possibility; nor, if the risk of the
harmful consequences was so slight that the ordinary
prudent individual on due consideration of the risk would ,:r
F not he deterred from treating it as negligible, could the
accused be described as reckless in its ordinary sense,
if, having considered the risk, he decided to ignore it. (In
this connection the gravity of the possible harmful
consequences would be an important factor: To endanger
G life must be one of the most grave). So, to this extent, even
if one ascribes to 'reckless' only the restricted meaning
!'---
adopted by the Court of Appea: in Stephenson and Briggs,
of foreseeing that a parti.cular kind of harm might happen
and yet going on to take the risk of it, it involves a test that
H would be described in part as 'objective' in current legal
KULDEEP SINGH z STATE OF HIMACHAL 1C73
~
t PRADESH [DR ARIJIT PASAYAT, J.]

jargon. Questions of criminal liability are seldom solved A
by simply asking whether the test is subjective or objective."
15. The decision of R. v Caldwell (Supra) has been cited
with approval in R v. Lawrence (1981) 1 All ER 974 and it was
... --4
observed that:
B
"- Recklessness on the part of the doer of an act does
presuppose that there is something in the circumstances
that would have drawn the attention of an ordinary prudent
individual to the possibility that his act was capable of
causing the kind of serious harmful consequences that c
the section which creates the offence was intended to
prevent, and that the risk of those harmful consequences
occurring was not so slight that an ordinary prudent
individual would feel justified in treating them as negligible.
x It is only when this is so that the doer of the act is acting
D
recklessly' if, before doing the act, he either fails to give
any thought to the possibility of there being any such risk
or, having recognized that there was such risk, he
nevertheless goes on to do it".
16. The above position was highlighted in Naresh Giri v. E
State of M.P [2008(1) sec 791].
17. The evidence of PWs 1, 3 & 4 clearly show that the
vehicle was being driven at a very high speed. Evidence on
--#
record show that more than 50 persons were there in the truck
and the appellant was driving the same at a very high speed. F
One of the witnesses has stated that the truck was being driven
as if it was an aeroplane. Therefore, the conviction as recorded
cannot be faulted.
18. Coming to the question of sentence, in Dalbir Singh v.
G
State of Haryana (2000(5) SCC 82) it has been stated as fol-
._A; lows:

"................ 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 H
1074 SUPREME COURT REPORTS [2008] 10 S.C.R.

A considerations should be deterrence. A professional driver
pedals the accelerator of the automobile almost throughout
his working hours. He must constantly inform himself that
he cannot afford to hc:ive a single moment of laxity or

B
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 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
c the offence; and lastly, that even if he is convicted he would
be dealt with leniently by the court. He must always keep
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, "t.
D --;._
particularly at the level of trial courts, for lessening the high ~

rate of motor accidents due to callous driving of
automobiles."
19. Above being the position, we find no merit in this ap-
E peal, which is accordingly dismissed.
B.B.B. Appeal dismissed.